Regulating Space Debris

This wicked problem needs US leadership

Marilyn Harbert and Asha Balakrishnan’s call to action should be generalized to a broader international audience. Space debris presents a particularly wicked international problem; the millions of pieces of orbital detritus that circle Earth do not discriminate based on a satellite’s national origin, endangering all satellites and the space-facilitated services that support modern terrestrial society.

The United States faces a daunting task in untangling its regulatory regime to effectively protect the space environment from the creation of more debris, but this is just one step toward a comprehensive solution to a global problem. The gravity of the US position is compounded by the risks of doing too little or too much. Emerging spacefaring nations often look to the United States’ example, seeking tacit guidance from the technical and political leader in space. Failing to capitalize on this leadership position would both reduce US standing and foster institutional inertia around the globe. Overly stringent regulations may incentivize nations to provide a comparatively relaxed regulatory environment to attract industry.

Space infrequently presents second-mover advantages, but nations with nascent space governance structures may benefit from being fast followers. In this rare situation, those that do not have established space-relevant bureaucracies can adopt best practices without needing to settle regulatory turf battles. The absence of domestic industry should not reduce the urgency of this issue; establishing a thoughtful regulatory practice is a strong signal that a nation is ready to accelerate domestic industrial growth. Furthermore, well-aligned regulation among nations is perhaps the only way to adequately address the growing risks to the space systems that support our everyday life on Earth.

Benjamin Silverstein

Let the White House authorize new space activities

Marilyn Harbert and Asha Balakrishnan are to be commended for their timely article about a little-understood area of commercial space regulation. While orbital debris is a subject of increasing public attention, getting an appropriate regulatory regime is vital for all space activities. The US government faces at least two key regulatory challenges: ensuring accountability while allowing for innovation; and ensuring efficiency while allowing for multistakeholder interests (e.g., security, commerce, diplomacy, science).

The United States has regulatory regimes for commercial launch, remote sensing, and communications satellites. It does not have clear regimes for innovative activities that lack government precedents related to, for example, on-orbit satellite servicing, active debris removal, and in-space resource utilization. To fill this gap, the Obama, Trump, and Biden administrations have each sought to create “mission authorization” legislation to provide “authorization and on-going supervision” for US commercial space activities as required by international law. Enacting such legislation needs to happen as soon as possible to promote a predictable environment for financing and insuring commercial space ventures.

The Federal Communications Commission (FCC) has sought to fill current regulatory lacunae, proposing regulations not only for orbital debris but also for on-orbit satellite, servicing, and assembly. Such regulations may be only thinly related to existing FCC authorities and clearly go beyond the powers explicitly authorized by Congress. Placing “mission authorization” within the FCC would be a bad idea for a number of reasons, but primarily because, as an independent regulatory agency, it does not report to the president. The FCC could make decisions that undercut national security, foreign policy, or public safety interests and leave the president without legal recourse. Such instances occurred during the Trump administration with regard to the protection of GPS signals and meteorological aids, and more recently during the Biden administration with regard to air navigation aids.

Multiple agencies can and do have regulatory responsibility for existing commercial space activities. For new activities, the Department of Commerce is the logical home for regulatory oversight. Since Commerce reports to the president, the White House would retain authority for resolving potential conflicts among the diverse national interests affected by the growing commercial space economy.

Scott Pace

Space regulation needs a new home

The issue of space debris is complex and reminds me of the issue of climate change. Is it “space debris denial” by national governments and private companies if they don’t see the risks as pressing right now? Or is it more about taking a precautionary approach, recognizing the range of challenges that need to be dealt with as the United States prepares for a fully commercialized and multistakeholder space future? To help thread that needle, the Office of Space Commerce within the US Department of Commerce has proposed an “institutional bypass” that would address regulatory gaps by acting as a centralized one-stop shop for commercialization issues expected to arise in the New Space era. As Mariana Mota Prado, a scholar of international law and development, has stated, an institutional bypass would not try to modify, change, or reform existing institutions, Instead, it would create a new pathway in which efficiency and functionality will be the norm.

The current situation seems not clear cut, as some private-sector researchers assessing US space policy and law are themselves uncertain of whether space sustainability and orbital debris generates more specific policy prescriptions than do other areas because the topic is generally popular in the field, or because the issue is of particular concern to companies. Further, the research and insights on disclosure practices of US and foreign corporations that participate in the investment-oriented Procure Space Exchange Traded Fund reveal that there is a lot more talk than action from many space companies with respect to the issues of space sustainability, and it is not apparent that the issue stems from confusion about authorization.

Marilyn Harbert and Asha Balakrishnan conclude that interagency efforts are active, which begs the question of the nature of any problems with interagency processes, particularly as they deal with who should have the authority to regulate and authorize space activities. Apparently, the current requirements require firms to navigate a complex web of federal agencies, and this “element of the unknown” leads to hesitancy for potential investors. However, interviews with members of industry reveal that most participants could not think of a specific example or incident when their ability to do business was affected by interagency dynamics. Still, it is worthy of note that their reported specific challenges emerged largely from their inability to voice concerns directly with regulatory officials so that their companies could efficiently adjust course, rather than from an actual problem encountering the overall interagency process.

The bottom line, then, is that if the budget exists and projections materialize, it seems to make sense for the Office of Space Commerce to become the central home for these new regulatory issues. However, further research should be undertaken to investigate the findings of a thoughtful analysis described in “The Private Sector’s Assessment of US Space Policy and Law,” carried out by the Center for Strategic and International Studies. Without minimizing the space debris issue, perhaps equally important may be other environmental concerns stemming from space activities that have immediate impacts here on Earth. Launch contamination anyone?

Timiebi Aganaba

Competent nonexperts make the best regulators

I was pleasantly surprised when I read the essay by Marilyn Harbert and Asha Balakrishnan. It correctly and coherently identifies the chaos that is the state of orbital debris regulation in the United States and the world.

My only lament is that the discussion about how the Federal Communications Commission (FCC) aggressively, and I think correctly, reduced the post-mission disposal threshold from 25 years to five years could have been extended, since I think it holds a potentially unifying lesson that was almost unearthed. That lesson is that regulation is a discipline in and of itself, and possibly that the subject-matter experts in a certain domain should not be the ones regulating that domain. Rather, expert regulators who know just enough about a domain to make cogent decisions but are not flummoxed by cognitive biases of studying the topic for their entire careers are able to aggressively move away from the status quo.

In sum, then, this good article was one inference away from being great: some of even the best regulators (i.e., FCC) may not be world-class experts in the domain they regulate, but they just might be great at their job!

Darren McKnight