Moon Express Reveals Need for Space Law

The FAA appears “poised to make history by approving the first private space mission to go beyond Earth’s orbit,” according to the Wall Street Journal. Moon Express, a contestant for the Google Lunar X-Prize, has asked the FAA to review its MX-1E spacecraft and related mission parameters. The FAA apparently plans to issue a “payload review” determination shortly, indicating that the planned mission (to begin scouting the Lunar surface for future mining) would be in compliance with U.S. treaty obligations and other national interests. If so, this would be essentially similar to a payload review determination letter issued to Bigelow Aerospace in December 2014, notionally approving Bigelow’s future plans to set up one of its inflatable modules on the lunar surface as a commercially operated Moon base.

Moon Express is a poster child for free enterprise in space, so anything that allows them to raise money for their pioneering mission is welcome news, but it’s not clear this payload review letter is what they’ll really need,” said Berin Szóka, space lawyer and President of TechFreedom. “Article VI of the Outer Space Treaty of 1967 permits private activity in space but requires ‘authorization and continuing supervision by the appropriate State Party to the Treaty.’ Back in 1982, when the first private company needed clearance to launch, the Department of Transportation had to scramble to cobble together a legal regime to satisfy America’s Article VI obligation. Two years later, Congress passed the Commercial Space Launch Act, which has governed private space launch ever since. But the law only covers ‘launch’ and ‘reentry,’ so the FAA is now trying to ‘leverage’ that limited authority to cover activity on the Moon through the payload review process. Even if the FAA can get the State Department to sign off on those letters today, they won’t be binding in the future, and it’s not clear they’ll be adequate if challenged internationally.”

What Moon Express and other space pioneers really need is an update to U.S. space law,” continued Szóka. “Congress passed, and the President signed, a major update just last year but they completely missed this fundamental issue. And that wasn’t surprising, because the FAA had already insisted, in its 2014 letter to Bigelow, that it can ‘leverage’ its existing authority without any clear limits. As with net neutrality, the Obama Administration seems to be generally unwilling to concede that they might actually need to work with Congress. Failing to ask for new legislation means failing to lead. And it leaves companies like Moon Express and Bigelow vulnerable to future legal uncertainty.”

Congress needs to finish what it started last year,” concluded James Dunstan, founder of Mobius Legal group, TechFreedom Senior Adjunct Fellow and thirty-plus year practicing space lawyer. “That means creating a clear statutory system for governing what U.S. companies do in space with the lightest regulatory touch necessary for the U.S. to fulfill its international obligations. Allowing them to succeed will require avoiding cumbersome regulation, and will best be done by extending basic principles of property and tort law into space — but even that still requires legislation. If the New Space Renaissance is to succeed, we need comprehensive property and non-interference (tort) protections, but also clear Article VI rights — the sooner, the better.”

An earlier version of this statement mistakenly asserted that the 2015 law granted property rights only in asteroid minerals, not other space resources that have been mined. In fact, this problem was corrected at the last minute when the bill was in conference.


We can be reached for comment at media@techfreedom.org. See more of our work on space property rights, including:

  • Our statement on last year’s legislation recognizing space property rights.
  • A letter earlier last year urging Congress to expand the legislation to cover all space resources and address the Article VI issue
  • An op-ed in Space News on the need to begin establishing property rights in space
  • An op-ed in Wired arguing for mining claims, salvage rights and safety zones in space
  • An op-ed in Wired examining the legality of asteroid mining
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