Who Owns Space? Commercial Activity Beyond Earth

Who Owns Space? Commercial Activity Beyond Earth

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Panelists discuss the robust and competitive commercial space sector, including the current legal framework governing territorial claims in space and what steps should be taken to ensure that human activity in space remains peaceful and productive. 

DUELFER: Welcome to the Council on Foreign Relations, everyone. Tonight we have a—what I think, and I think other people will agree—is a fascinating topic. I’ve always been kind of a space nut, but this is a question addressing commercial activity beyond Earth. And in particular, not just—when you think of space activity, you think of things focusing towards Earth, remote sensing and so forth. But this is, you know, activity beyond that sphere.

For your background my name is Charles Duelfer. Probably if I’m know for anything it’s for not finding WMD in Iraq. (Laughter.) I have sort of a second, less well-known life in space stuff. But after a series of very poor career decisions I wound up in Iraq instead of space.

GABRYNOWICZ: They’re a lot alike. (Laughter.)

DUELFER: You know, the Iraq western desert—I substituted a picture for the Iraq western desert for Mars once, and no one ever knew the difference. But that’s not what we’re here to discuss. (Laughter.)

I think we’ve gone through the housekeeping discussions. You know, the cellphones off and it’s going to be on the record, so forth. So let me dispense with all of that. We have three great experts here tonight, probably the best in the galaxy—(laughter)—to discuss this topic. Joanne, Gabrynowicz?

GABRYNOWICZ: Perfect.

DUELFER: Who is the editor in chief of the Journal of Space Law. And she is, as near as I can tell, the expert on space law.

GABRYNOWICZ: Just a correction. That’s emerita—editor in chief emerita.

DUELFER: Yeah, but I can’t say that. You know, it’s better to just say editor in chief. Accuracy has never been terribly important to me. (Laughter.)

GARVER: Wow. That explains a lot. (Laughter.)

RICHARDS: This’ll be a fun night.

DUELFER: And we have—(laughs)—Lori Garver, who is, frankly, a—truly is a personal hero to me, as she is one of the people who engineered the shift from space activity run and managed by the government, to opening it up to commercial activity. And that intersection of political and physical science is a difficult one to monitor or to manage. So I think we all know Lori Garver as the deputy head of NASA during that critical period of time.

And last, but certainly not least, is Bob Richards, who is really the pathfinder here in terms of testing the framework here. He’s the founder and CEO of Moon Express, that will be launching either later this year or next year, I think. And incidentally there’s a great article in The New York Times from, I think, it was Sunday—

RICHARDS: Ken Chang.

DUELFER: —which addresses all of these issues, focusing on Bob and his program, and some of these other issues.

But let me begin with Bob, I think, as a way of kind of framing the discussion. I think there’s a range of experience in the audience but, Bob, if you could take a couple minutes and describe what it is that Moon Express is going to do, what drives it, how you create a business case, why a business case depends upon good definitions of law ownership and so forth, and where that law starts to run out—(laughs)—in your experience. And then we’ll turn to some other aspects of the questions.

RICHARDS: Of course, you want an engineer to talk about law, right? But the experts will do that. I’ll just—(background noise). That’s the—(inaudible). (Laughter.) But, so Moon Express. Our—as a commercial space company—(background noise)—I think we’re good now. (Background noise.)

GABRYNOWICZ: Testing, testing.

RICHARDS: We have to go three, two, one. Check, three, two, one. Are we good? Maybe it’s a little hot. Maybe turn it down a bit and I can speak louder. OK, I think. Well, we’ll work with it.

So the commercial space business of Moon Express begins after the launch business ends. So it’s about collapsing the cost of going everywhere else. Starting with robotic spacecraft, that can start in low-Earth orbit, after we’re dropped off by whoever’s giving us a ride. And can reach other destinations in the solar system, with our planetary neighbor, the moon. In a commercial space business, it’s always good to be close to the credit cards as we can be.

And the farther you get from the economics of Earth, the harder it is to develop business case and close business cases and raise funds. And I guess in the simplest form, if it’s something that is going to be done only once, it’s likely a government undertaking. But if it’s something that can be done over and over again, then there’s likely a business opportunity there. And I think, going beyond Earth orbit, traditional Earth orbit, is something that will begin to be done over and over again.

So—(laughs)—a funny thing happened on the way to Mars. I discovered the moon. The moon as a planet, in proximity to Earth, that has a lot of resources and potential business cases. Lots of great things you can do on the moon. But none of them are possible unless you solve the transportation problem. The cost of transportation to the moon. So what we’re—what Moon Express is concentrating on first is collapsing the cost of transportation from Earth orbit to the moon.

So, as it was in late 2015, it was a pretty great time as the United States passed the new law, the Space Resource Utilization Exploration Act of 2015, that talked about the rights of private players to own—kind of a “finders keepers” law—to own what they peacefully obtain in space. And that was—that was good. But we found ourselves in position in late 2015 where we actually wanted to conduct our first mission in 2016, ’17, ’18. And we went quite innocently to the State Department and said: We’re a private company. We really would like to send a robotic explorer to the moon. Is that OK? Or—(laughs)—do you have a problem with that? Or is there anything that would prevent us from doing so?

We went to the State Department because we knew it was one of a number of agencies that would have to review our application for launch—a commercial launch license. And we knew that all agencies had a power of veto. And our friends at the space agency, and we have friends in the room that participated in this with us, said, we—you know, we love what you’re doing and the vision, but there’s no way we could say yes to that. It’s—because we’re heading into a completely absent framework. There’s just no law. So then the technical risk, the financial risk, all the risks that we deal with in the commercial space industry, what became the risk was the regulatory risk. It became 100 percent, because the answer was effectively no, you can’t do that.

So to end this part of the story, it thus began the adventure, in blazing a trail to the moon, to find out how to blaze a trail through Washington, D.C., and find a way in the absence of a regulatory framework to come up with what we call mission approval, which was kind of a temporary patch. And we can talk more about this in depth, but it took a number of months. And there’s some people in the room that helped us do it, but we were, in July of 2016, the first private company to officially receive U.S. federal authorization—were the first private mission beyond traditional Earth orbit consistent with the obligations under the Outer Space Treaty.

DUELFER: What I recall in trying to raise money for a small space launch company—which was a lot like looking for WMD in Iraq—you’d have to be able to show some prospect of a revenue stream. And it seems to me, in your case, you’ve got to be able to show that you can own that which you harvest, and can generate a revenue stream, which seems particularly hard or questionable at this point. I’m not sure that—is there a question of national law versus international treaty? And maybe this is a question better for Joanne, because it seems to me, you know, if you get to the moon and you find the good stuff, and you can get it back, but somebody can dispute the ownership. And it’s hard to make that business case close.

GABRYNOWICZ: So it’s not the Outer Space Treaty versus national law. It’s the Outer Space Treaty and national law. And what the Outer Space Treaty requires—and the United States is party to that treaty and one of the leaders in developing and getting that treaty codified. What the Outer Space Treaty requires is that nations who are party to the treaty authorize, quote, “authorize and continually supervise” their nongovernmental organizations. What has happened in the law so far is Congress has authorized the FAA to license things that go up, and they are authorized to license things that come down. But there is no place in the federal government that has congressional authority to license things that go in orbit around the Earth, or further beyond. That’s where the issues are.

Now, under international law, the United States has the right to define how it will carry out its obligations under the provisions of that treaty. And historically, what it has been is we’ve used a licensing function for commercial launches, for commercial remote sensing, those kind of activities. But now that we’re talking about on-orbit activities, there is no one place in the federal government who has that authority. What has been attempted in recent years is—as was said—a patch, a mission authorization. But if Moon Express launches something to go to the moon, it’s still—if it launches from the United States, it will still need to get a launch license. What has been authorized is the payload was reviewed. And the review said, this is consistent with U.S. obligations. It is not inconsistent with United States national security interests. This payload is fine. But it still has to get authorization to get there.

So we’ve had a number of laws passed in recent years, where attempts have been made to address what is now called a regulatory gap. And the regulatory gap still exists. There are attempts now to fill that gap. There’s a great deal of politics going on between whether it should be the FAA who has the authority to do this, or the Department of Commerce. That is going on behind the scenes. These statutes that I referred to have provided for a large number of studies and programs to look into these things, and the impetus or those type of studies was to lead to a conclusion that would give rise to a regulatory regime that would be beneficial for commercial space activities. However, it’s gotten tied up in politics and we still have a gap.

DUELFER: The regulation would be over the activity? You know, I’m used to thinking in terms of, you know, regulation of a launch. But what is the—what would be submitted for approval, or—you know, I realize it—

GABRYNOWICZ: That’s part of what has to be decided.

DUELFER: OK.

GABRYNOWICZ: What does that mean? What does—

RICHARDS: There’s no process for the process.

GABRYNOWICZ: That’s part of what—so what we’ve done so far is we have licensed launches and returns and commercial remote sensing satellites. Congress said, in the case of commercial remote sensing, it’s the Department of Commerce. In the case of launches, it’s the Department of Transportation. Go off, make your regulations, and come back. That has not been done yet for orbital activities.

DUELFER: And is it the launching state? I mean, where you physically are launching from? Or where your company is registered? I mean, so in other words, if you’re launching from New Zealand, is it New Zealand which has the—do you have to comply with New Zealand procedures?

GABRYNOWICZ: You’d have to look at two things. One, is New Zealand a party to the Outer Space Treaty? If they are a party to the treaty, then they will have to authorize and continually supervise as well. Then the second question is how do they define that under New Zealand law. And I don’t have a clue. But they have to do the two-step process as well.

DUELFER: This is going to get real complicated very quickly.

GABRYNOWICZ: It already has. (Laughter.)

DUELFER: But it’s not a moot point. I mean, I would just point out that, you know, people in the audience know better than I, the transportation to space is getting cheaper. And as that gets cheaper, these other issues are going to become very real. The State Department and Commerce Department and FAA and—they’re going to have to get together and somehow organize around this kind of an issue.

GABRYNOWICZ: Well, that’s already been recommended. One of those studies that I told you about was to go to the Office of Science and Technology Policy to come up with a regulatory model that could be used. OSTP came back and said: You’re going to need some kind of interagency review. And actually said that. So that’s in the conversation.

DUELFER: Well, Lori, as someone who has spent a fair amount of time inside government, and probably is not too cynical—(laughter)—how would you—how would you project that working out?

GARVER: I am not too cynical on that topic, thank you. It’s a hard—it’s a hard thing to be a government person who is responsible for these things, that sound like we haven’t done a great job with it. But if all it takes is an interagency process, we do those all the time. And a bright spot right now is that the National Space Council has been reinstituted. And to me, that is a role that they can play. Not only that, but Scott Pace is the executive secretary of the Council and he drove these issues at NASA before I did. I mean, I was there in the ’90s under—this is not partisan at all. I’m really interested in finding out, Joanne, what you think has become political, because we have passed competitiveness legislation recently. We did it in the ’90s. There is a need, and I think a drive, even with our elected officials, to allow space to be a place for commerce.

You mention that we moved the ship a little bit. And for things that there’s a market-like launch, that’s really catching on and it’s great to see. So the next steps as you go further, I really think we in the United States can do this. NASA played a role in, of course, putting money to match for the Google lunar XPRIZE. We wouldn’t have done that if they thought you couldn’t actually go there. I mean, I know there are attorneys—I’m not an attorney; I seem to have to work with them everywhere—that will tell you no, no, no. But you can find them, and they certainly exist in the government. And at NASA, we want to advance these things.

So I think we have a champion in the White House and the recent legislation. I’m really wondering why it all went so badly when I left. What happened these last few years? (Laughter.)

GABRYNOWICZ: You left!

RICHARDS: You left. (Laughter.)

GARVER: No, that can’t be it. So politics between Commerce and FAA, that’s ongoing. That’s not that hard.

GABRYNOWICZ: Right, what it really—what it comes back to is if you look at the interagency review process for the Department of Commerce for commercial remote sensing, and the MOU and the CFRs, that has become a very onerous process. And one of the reasons it has become onerous is because it has a large component of national security review on satellites, which are still very sensitive technologies. And what industry rightfully was concerned about was they didn’t want an interagency review like that, because their concern was if we have to go through that kind of interagency review, it’s going to stymie us. And so there has been effort to have a review process that is not as difficult as the commercial remote sensing review process.

GARVER: And is someone literally saying: You can’t launch? They won’t—like FAA won’t certify you because you don’t have the authority through the Outer Space Treaty to go to the moon?

RICHARDS: So we found a way through, Lori.

GARVER: OK.

RICHARDS: So the answer became yes, but only after—it began as not yes.

GARVER: Right. (Laughter.)

DUELFER: That would be no?

RICHARDS: Well, they never said no. They just said not yes.

GARVER: But so that’s not stopping you now.

RICHARDS: Well, the qualification, however, because the FAA did not have explicit authority beyond traditional Earth orbit, in consultation with the interagency review process, and particularly the State Department and the White House, provided this one time. And that was qualified as, OK, we found—this is OK, but it’s just for Moon Express. It’s just this one time for this one mission. We don’t know if we can repeat it, although we would love it. We probably need some more legislative power somewhere. And our position has always been freedom of enterprise in space, with a maximum of certainty of process, and as light a touch as possible of regulatory burden. And this could be solved by saying: We will always be a NASA partner. But that’s not what we want.

GARVER: Yeah, yeah.

RICHARDS: Right, exactly. We don’t want that. We want to be able to go and have freedom of enterprise in space. And just like I have a right to drive on the highway as soon as I have met certain qualifications, and there’s some known boundary conditions, that provide there should be a presumed approval within boundary conditions that everybody understands. And that’s what I would love to see us get to. And we’re making some progress, but we’re not there yet.

GARVER: Right. And I absolutely—I am now in the mature industry of commercial aviation. And they do dangerous things every single day. They move a billion people just in North America a year safely. Not had a fatality in this industry in the United States for eight years. So we’ve flown almost 9 billion people safely with a regulatory environment that is fixed, and that commercial airlines can expect, or they would not do what they do, the government’s role in this. That developed over time. And this is very, very similar.

But barnstormers didn’t have certification. My grandfather even flew at his farm. He didn’t have a pilot’s license. You didn’t need that back then. You’re going to start with, I think, one-offs. And you got to go and prove yourselves. And I absolutely believe that this government, whether it’s headed by a Republican or a Democratic administration or Congress, believes that the United States wants to lead in this. And most of us—I’m not sure, Joanne, you agree with this—believe that the Outer Space Treaty does allow for it.

GABRYNOWICZ: Oh, yeah. That’s why it’s—

RICHARDS: You agree on that?

GABRYNOWICZ: Yes. The Outer Space Treaty—well, what I would say is the Outer Space Treaty is silent.

GARVER: Right.

GABRYNOWICZ: It doesn’t say anything about commerce. And so it’s up to the signatory nation, through its authorization and supervision provisions, to say how that gets done.

RICHARDS: That’s called a—it’s not a self-executing treaty. I learned that from my lawyer friends. (Laughter.)

GABRYNOWICZ: There is a great deal of debate about that.

RICHARDS: OK.

GABRYNOWICZ: And it’s very technical.

DUELFER: Self-executing treaty. That has sort of a nice ring to it.

RICHARDS: I thought so, but it didn’t go over very well. (Laughter.) I thought that’s one thing I knew about the law, and I guess it isn’t quite so black and white. But isn’t the interpretation that, maybe repeating what you just said, it’s up to each signatory to interpret what it signed up to do.

GABRYNOWICZ: It’s up to each signatory to determine under its own national law how to meet its obligations under the treaty.

RICHARDS: Better said, yes. OK.

DUELFER: Look, let me just ask one question further, and then we’ll open it up to the audience. But suppose you’re able to—you go to the moon. And there’s a particular spot which is a great spot because, you know, it’s a nice cave, there’s water there, or there’s light, or something.

GABRYNOWICZ: If there’s water there, there’d be a lot of interest. (Laughter.)

RICHARDS: You find your favorite spot on the moon, right?

DUELFER: Yeah, but it is clearly a great spot.

RICHARDS: Yeah. I know some.

DUELFER: How do you get it and not somebody else? And how do you convince your investors?

RICHARDS: And how do you keep it? OK, so I think along the line Lori is suggesting, we’re not going to solve all the problems of the future today. But we can look to historic analogues where this is very similar to the early claims where—when there was just a few people in the west panning for gold there wasn’t a whole lot of conflict because there wasn’t really a scarcity. But as soon as you got a lot of people wanting to be in the same place and bumping into each other and eventually somebody got shot. And then you needed a committee. And then laws started to arise. But it was, you know, finders keepers and use or lose it.

GABRYNOWICZ: It also ignored the people who were already there, but we don’t have to go into that. (Laughter.)

RICHARDS: And so we can’t know that there are tall blue people on the moon, but if there are I think we should have to be respectful of that. But I think we’re OK. One of the good things about the moon is we haven’t talked yet about the planetary protection aspects of this. But one of the good things about the moon is it’s neutral in that territory so we can—we can learn about solving all the other complex problems on the moon before we start talking about more complex worlds like Mars.

GABRYNOWICZ: OK. Here’s the problem. The Outer Space Treaty says under Article 2 that no nation may appropriate space either by use, occupation, and, just to be clear, by any other means. So the question becomes, if a nation cannot appropriate lunar territory, they cannot use their citizens to do the same thing because it’s an illegal act. So the question does become, what is possible to use, because the right to explore and use is there. And bottom line, and here’s my professional opinion, this will require—and don’t throw the tomatoes—this will require international discussions as to what the standards are in space, on the moon. It’s like Antarctica. It’s like the sea bed. We have treaties. We have agreements. They’re not easily gotten, but that is what this situation calls for.

RICHARDS: We are beginning a very important global conversation. And, wearing the International Space University hat, this is a wonderful discussion to have. And following the laws in 2015, I did go over to Vienna and participated in some of the United Nations Committee on the Peaceful Uses of Outer Space talks, where there were some nations that weren’t happy at all about the way that the U.S. had just given its private sector the rights under its national laws. And there’s not global agreement. However, there’s also the concerns that there are economics at play here. And you did mention that everybody has a—by definition—an Outer Space Treaty right of use.

But the conflict only becomes, like, when more than one party wants to use the same thing at the same time. Not perfect metaphor or analogy, but there are laws of the sea where there’s due regard and there’s equal rights to participate. And there’s also an expectation not to interfere with each other. And so there are some of these historic and existing precedents. But I would—we’re not going to solve it all at once, right? So let’s not—let’s not stop innovation on the premise that we have to figure it all out. So, in the case of Moon Express, we promise we’re going to be very responsible. We’re not going to do anything too provocative, certainly in the first mission.

But in the second mission or the third, we do intend to go to the south pole of the moon. And we do intend to land on one of these peaks of eternal light that are one of these very special places that will be very important in the future because they’re in proximity to resources and they have almost continuous energy and there’s line of sight of Earth. So it’s kind of high-value real estate. And we will go there under the laws of the United States. And there will be a(n) interesting global discussion about that when that happens. Or somebody’s going to go there.

GABRYNOWICZ: It also should be pointed out that about two or three months ago Senator Cruz had hearings about whether the Outer Space Treaty—I forget the exact title of the hearing; it’s still online, you can see it—needed to be revised, amended, or whether the United States needed to withdraw. It was—

RICHARDS: Reopening the American frontier.

GABRYNOWICZ: And it was—that’s the name of the hearing. And it was questioning the status of the Outer Space Treaty. They had two panels of experts from the private sector and academia. And every single one of those witnesses on each of the panels said: We need the Outer Space Treaty. Don’t get rid of the Outer Space Treaty. And in fact, the CEO of Planetary Resources said: We will be much worse off without the Outer Space Treaty than if we have it. And that’s because the discussion we’re having now in good faith is what laws apply. A lot of it is up to debate. I taught for 30 years. The debate’s still going. And because a lot of it is up to debate, the one thing we do have for certainty is the Outer Space Treaty.

And one of the things that the Outer Space Treaty says is that private actors are legitimate actors in space. When the treaty was being negotiated, the Soviet Union’s position was only nation-states are legitimate actors. And of course, the United States would not accept that. And they said, the private sector is a legitimate actor as well. And so we have Article 6, which requires the supervision and the authorization. And that’s the compromise between the Soviet position and the American position, because if the private sector were not legitimate actors in space, there’d be no need to supervise them. That was the compromise.

So by questioning the Outer Space Treaty and trying to reopen it again, we put that at risk. We already have, for 50 years, the principle that the private sector are legitimate actors in space. If we want to put that on the table and reopen that in the era of globalization, there’s a lot of people at the State Department who have jobs for life.

GARVER: But you can’t have it both ways. You can’t say that, and then at the same time say it restricts what we can do.

GABRYNOWICZ: Yes you can.

GARVER: (Laughs.) Then people are going to want to change it. And I would argue we not only have it that allows it, I thought we all agreed, we have the Moon Treaty, which we did not sign, so we obviously did not want to forbid it. We have national space policy on the books for decades that is in support of these concepts, and legislation.

GABRYNOWICZ: Correct.

GARVER: So I’ve always encouraged—when folks would come into NASA when I was there—go do it. You know, law is based on precedent. And if they can’t stop you now, you’re not ready with your business case. I don’t know what your business case ultimately is, but you don’t—you don’t have that yet. You have to prove yourselves technically. And it seems to me, that’s a good way to start.

GABRYNOWICZ: As a pragmatic measure, you’re absolutely right. If somebody does something, then it is up to the international community to respond to it. But I think in my professional opinion, it would be more efficient and productive to try to get some sense of agreement before.

DUELFER: Can I—

GARVER: I think we have that.

DUELFER: I predict State Department’s going to have a very—a growing office that addresses this stuff in the future.

GARVER: The one part of State Department that’s going to grow. (Laughter.) I said a nice thing about the administration, so I am allowed.

RICHARDS: Yes. (Laughter.)

DUELFER: Well, at this time I’d like to ask the members to join in the conversation and ask questions. And just as a reminder, this is on the record—unlike The Hay-Adams, which is Off the Record. Anyway. And please, you know, raise your hand, wait for the microphone, identify yourself, and please ask a concise question, if you can.

Sir.

Q: Thank you to all of you for speaking to us tonight. Maybe a more pedantic, mundane question—not the moon—but near-Earth activity. So we’ve talked about the U.N. treaty system, what it may or may not do, whether it’s modern or not. Is the definition of launching state really applicable today versus when it was contemplated? But to take a real-life example, there are a number of companies—one for sure which I think may be aware of, Lori—that’s got a real-time on-orbit servicing platform. So a spacecraft that will go up, either refuel, reposition satellites, do other things. There’s no—within the U.S., no clear regulatory structure. How do you look at this? Is it a satellite? Is it something else, because it’s not static. It’s going to go somewhere, attack to something, do something, then it’s going to dis-attach, and then go do it again, and do it again. And we know practically that the FCC, FAA, State, don’t really know how to handle this.

I’m sorry. Dara Panahy, Milbank.

DUELFER: Joanne, you want it?

GABRYNOWICZ: Sure. Actually, it’s a space object, whether it’s a satellite or a launch vehicle or—it’s a space object. And that’s how it’s described in the treaties. But what you’re talking about there is that question of on-orbit authority, whether it’s near Earth or far away from Earth. Congress has to authorize some part of the federal government to—I’ll use the word license or permit, there are different ways of doing it. Somebody has to be given a congressional grant. We don’t have that now.

DUELFER: And that’s just—that’s derivative of the continuing supervision obligation under the Outer Space Treaty, so we have to at least pretend to pay attention to this.

GABRYNOWICZ: Somebody has—Congress has to tell somebody in the federal government: You can authorize these activities.

GARVER: You know, I’m just not so sure that we’re all waiting for that. Certainly, NASA had been approached many times by private sector who wanted to do that. No one raised that that was going to be an issue. They weren’t going to ask anyone. They were going to go do it.

GABRYNOWICZ: That’s because NASA does not need a license or authorization.

GARVER: This was them telling us they were going to go do it, without NASA involvement. We would have lent them a spent satellite for them to go do this, but it would have been their mission. I guess I’d give them the same advice that—since I’m not a lawyer—

GABRYNOWICZ: NASA is not a regulatory agency. So it can’t regulate anybody.

GARVER: Right. So they would just go do it. Who’s—they’re not going to get their launch license, is that what you’re saying?

RICHARDS: Right. And if I could make the point—

GABRYNOWICZ: They can get a launch license, because right now the FAA has the authority for launch licenses. I’m talking strictly about the on-orbit activities.

RICHARDS: Right. So the particular fact about our mission authorization, which really was an enhanced payload, would be what we called it, mission approval. It wasn’t about the moon, per se. There was an element about it because it was the moon we had to address a little bit. Most of it was just about a nontraditional mission going out of—outside of nontraditional Earth orbit. And we had to have the debate of whether the moon orbits the Earth. And according to NOAA it doesn’t. And didn’t mean that as—I hope there’s NOAA people. But there was an important discussion about where’s NOAA’s, you know, jurisdiction is.

GARVER: Of course.

RICHARDS: And if we have a camera on the moon looking back at Earth, does every pixel out to Alpha Centauri have to be licensed by NOAA? And I think we had a very reasonable discussion, in the end that determined that, you know, no, we don’t. But the point was, this wasn’t—whether it’s a refueling robot or a robot that’s going to land on the moon or go somewhere else. It’s about leaving the traditional well-established framework that happens a lot around the Earth, into something—into deeper waters, where fewer vessels have gone, and no private sector vessel has gone before, within an authorized framework. And you would not get the commercial launch license, because that is subject to a successful payload review. And it was the payload review—

GARVER: By? By?

RICHARDS: —which goes into an interagency process that not one of the agencies have the authority to extend the Article 6 requirement. But each one of them—every one of them has the authority to say no. So that’s the predicament that we’re in right now.

GARVER: So if they don’t say no, you can go.

RICHARDS: Even if they don’t—that’s right.

GARVER: Is that what you heard?

RICHARDS: Don’t—yeah.

GABRYNOWICZ: How do they have the authority to say no? Is it in their organic statutes? Where is that coming from? I mean, I’m asking a good-faith question. I don’t understand the statement you just made.

RICHARDS: Ben, you can help me out. (Laughs.) I’m looking at Ben Roberts, who championed this while he was at the White House.

Q: I think the idea is that payload review gets circulated at the State Department and Defense and a few other agencies. And the State Department says, for example, this is—oh. The State Department says that this is violating our international obligations, or the defense department says that it violates national security in some fashion, they can put the kibosh on the launch license. But we tend to not want to do that, if at all possible.

GARVER: Yeah. They didn’t do that, right?

RICHARDS: They didn’t.

DUELFER: Well, having clarified that—(laughter)—

GARVER: Yeah, and I think that is different than the question, because he was talking about low-Earth orbit operations that we do all the time. And I think get approved to launch without someone specifically saying what they’re going to do in space is OK.

RICHARDS: So if I could—I see some private sector company friends out here. Would we operate in an—or would we choose to operate, or would we be able to attract investors to operate in an environment where it could be argued a capricious government agency, for no discernable reasons, could decide no at any time? However unlikely it is, it’s still a risk, right? So when I talk about certainly of process with a light regulatory touch, I’m not talking about no regulatory framework, but a certainty of process that, like getting a driver’s license of filing a flight plan, you have a right to do business within a certain predefined condition. And nobody can—and nobody can—nobody should be able to say no.

GARVER: I completely agree. And we tried to spearhead this process early in the Obama administration and, frankly, it didn’t get very far, even out of NASA, because of the lawyers. People don’t want to say in the affirmative, yes, it’s OK to do these things. But I think that will only come when we are able to do them. So I’m really interested in that question about, like, satellite servicing because hundreds of millions of dollars have been raised to do that. They obviously would not do that if they thought someone in the government could just say no.

Q: The FCC has sort of taken provisional—so the FCC is going to be regulating satellite servicing until something else happens.

GARVER: And they’re a known player and they do it a lot. And I don’t think—while, I mean, there’s certainly been things they’ve turned down, but.

DUELFER: So if I could—you had your hand up.

Q: Very interesting conversation. This is Ali (sp).

My question is, who controls the cyberspace? And will there be—

GABRYNOWICZ: That’s another panel. (Laughter.)

Q: Yeah. Will there be cyber domains by continent, by countries in the future—

GABRYNOWICZ: Planet.

Q: Yeah?

GABRYNOWICZ: I can’t speak to that.

DUELFER: I think that’s another panel.

Q: Sorry.

DUELFER: Sir.

GABRYNOWICZ: See, we agreed on something.

RICHARDS: We did. (Laughter.)

Q: Good evening. I’m Brad Fultz. I’m in the Marine Corps.

I was in Cape Canaveral this past summer, and SpaceX seems to have this whole process figured out. They are launching multiple rockets into space very—you know, every couple weeks it seems. What is SpaceX doing that Moon Express is not doing?

GABRYNOWICZ: They’re bringing things to the space station, so they have a relationship with NASA that is in the national interest. We need to get people and supplies to the space station. The shuttle was retired. And SpaceX came up with a good business plan at the right time, and they’re providing goods and services to the government.

RICHARDS: Well—

GARVER: But less than half of SpaceX’s missions are for NASA or the government.

GABRYNOWICZ: Right. Right. But he asked about Cape Canaveral, so.

GARVER: Well, they’re launching all their things right now from the cape. And it’s a commercial business. And that’s what I think we’re talking about basing what we do in the future on what has started to become a very successful launch capability. And great props to the FAA for getting to a point where they can license and, what, SpaceX has launched 13 this year or something? Really unbelievable. I remember the very first one. You know, when “Deke” Slayton got in it took seven years or something, so.

Q: And Vandenberg now.

GARVER: SpaceX is launching from Vandenberg now? Right.

RICHARDS: But the field of whether it’s SpaceX or ULA or Orbital ATK or whatever—and blue is going to be launching—they’re operating in a very familiar near-Earth orbit domain, where the regulatory processes are very well worked out.

GARVER: But you say that. I mean, it hasn’t been that long since that’s happened. So it can come about when you’re actually going. And when they started actually going, it came about. It’s very exciting.

RICHARDS: And that’s what this is—yeah.

GABRYNOWICZ: But the regulatory regime, to which you were referring, started in 1984. It was expanded in 1988. And then in 2004 it was expanded to include commercial space tourism—what’s being called tourism. So it has been developing for decades. It didn’t just happen.

RICHARDS: So we’re at the same kind of verge of the commercial sector going farther for the first time. And thus, we’re having these discussions that are very familiar to the discussions that happened for the first commercial launches.

DUELFER: Over here.

Q: Thank you. David Short with FedEx. Professor Gabrynowicz, very good to see you. The ABA Air and Space Law Forum isn’t the same without your participation as actively as in the past.

Two weeks ago the U.S.-U.K. Working Group on Trade and Investment had its second meeting and issued a report. There wasn’t a lot for them to report, because of the Brexit uncertainties. We don’t know if we’re going ahead with the free trade agreement or not. But one thing they reported was work is continuing on an agreement to promote use of U.S. space ports and U.K. launch facilities by U.S. commercial ventures. And the question I’d like to ask is we’ve seen, as I understand it, with the drones where more permissive regulation in the U.K. has served to draw a lot of U.S. and other R&D investment into the U.K.

Under this framework that you explained to us earlier this evening, is there a risk of a race to the bottom that, whether it’s the U.K. or whether it’s some small country in the South Pacific or whatever, that they will have the capability for a spaceport, for a launch site. And they will have very permissive regulation. And they will draw the investment. And they will have—they will end up with much less effective supervision of these activities than a more responsible country like the United States?

GABRYNOWICZ: Well, a race to the bottom question I think you need to direct engineers, technicians, and economists. The only thing I would point out is there is a spaceport in the United States, Spaceport America. And it is still struggling to fit its business case. So I think there’s going to be some shakeout on those activities.

GARVER: But I think your point is a great one. And shame on the U.S. if we’re going to lose to Great Britain, come on, as somebody who is going to be great explorers of space and capitalize on those new markets. So I think the race to the bottom is more a reference to if we overregulate and people go overseas we’re not going to have the capability, as in drones. So because of my aviation career now, I will say we have the same concern. But we also don’t want these things to be unsafe. So I think this country needs to do better. And our government really is all about allowing this to happen. We’re the capitalists, so, we got to find a way to do it.

DUELFER: Sir.

Q: Konstantin Kakaes with the New America Foundation.

I wanted to ask you all sort of about geostationary orbit, basically, which seems to me, at an international level, probably better regulated than anything lower down or higher up, in a kind of, like, weird way through the ITU, that sort of evolved organically over time. And sort of both geostationary orbit in and of itself and the future there, and sort of what lessons that has for farther away and closer to Earth.

GABRYNOWICZ: Well, the regulation of geostationary orbit came into being based on how radio frequencies had been regulated. And, I mean, it’s—the ITU is insanely political. It’s a difficult place to get things done. But ultimately, one of the reasons it exists and works to a fair degree is there’s a two-step process. At the national level, a nation decides which satellite provider operator is going to go forward and seek the slot. And then they go into the international system and do that. Also, with geo it’s—you know, technology changes. So it’s so much easier to get many more satellites in there than when they first started. But you’ve still got the laws of physics. And human-made law does not outdo the laws of physics. So to some degree, to get as many satellites as possible up there to serve what needs to be done, there has to be some recognition of the physics involved.

GARVER: But I think that reinforces the point also that these things that we are able to do when they rise to the occasion. So geostationary satellites make billions of dollars. And so we found a way—(laughs)—both internationally and nationally to make that work. And so when you’re doing that, I just don’t think you—as much as I would love for our government to lay out the red carpet in advance, that is typically not the way we do it. You got to challenge it and get the things changed along the way. It’s no secret—you know, we wouldn’t have had the Outer Space Treaty if we weren’t really going to be landing on the moon, when we needed something. Those are the kinds of things that go together.

RICHARDS: And really, just to recognize that there is a lot of great work now. And I think we’re very close to that law that’s going to serve a lot of commercial players. As it is right now, we need to—we, Moon Express, need to go back for our second, and probably our third, payload review, under this uncertain sort of—

GARVER: Oh, I’m not defending them. I’m just explaining, don’t stop.

RICHARDS: Well, thank you. I’m not. I promise.

GABRYNOWICZ: I would give the same advice.

DUELFER: Here, yeah.

Q: Hi. Thanks. This is a super fascinating discussion.

I guess I’m more on the side of stop, or at least pause. And I guess I’m a little concerned about the tenor of the conversation that’s let’s go do this without thinking through a lot of the externalities or regulatory aspects of it. I think the analogy to sort of, you know, commercial flight or even getting a driver’s license or those kinds of things is a bit incomplete, or at least misleading, in the sense that—you know, if it’s one thing if it was just travel, right? We’re talking about travel with, you know, unrestricted, you know, activities as it relates to ownership of space, and using space for all kinds of other potential purposes.

So I guess my question is, how can we be confident? And I understand the need to make profit and the profit motive and the incentives there. But how can we be confident that we could have a regulatory regime in place that would protect the—you know, the Earth itself, or at least the, you know, near outer-orbits of space from externalities, and ensure that there isn’t, you know, nefarious activities that would take place in outer space, and give us that kind of confidence before we just say go for it, right?

GARVER: Well, there are already nefarious activities going on in space. What is it you’re worried about when they go to the moon? Because they can’t just claim it. We’re not talking about ownership like that. So what are your concerns? That they would?

Q: Drilling, claiming it, what—are you saying that there already are regulatory regimes in place that prevent that? Is that what you’re saying?

GARVER: Well, the Outer Space Treaty does not allow them to claim it as property—

RICHARDS: Territory.

GARVER: As territory. If they extract something and take it, they can own that—is the theory that we’re debating.

GABRYNOWICZ: Right. That’s the debate right now. Under U.S. law there is statute that say if the resource is extracted, once it’s extracted a property right attaches. That is far from a majority opinion in the—in the Committee on the Peaceful Uses of Outer Space.

GARVER: And under my scenario, yes, the regulatory environment would be much more mature by the time somebody has the capability of going and drilling and extracting more than a minor amount.

RICHARDS: Because then you get the case precedent that leads to new common laws and traditions.

GABRYNOWICZ: But to your question, one thing to think about—and I assume there’s some State Department folks here—is the question of potential linkage. One of the things that we’re paying a lot of attention to is what’s happening in the Arctic with the melting of the ice and the Russian claims of the seabed. And while it’s good to say they’re not related, we’re not placing a link between how we behave here and how we behave there, it will be linked. So it needs to be thought about that way, in terms of how do we behave in this other territory and how will that behavior be interpreted for the use in this other territory as the Arctic melts?

DUELFER: Sir.

Q: Hi. Andrew Chapman with the State Department.

So a very similar question to what you had. It sounds appealing, the just do it and the regulations will fall into place later. And certainly, when we get the capability to do things, the laws will come into place. But I’m worried about things where you do irreparable damage on the first time you go somewhere, like contamination. I know when NASA plans missions there’s a lot of thought as to the scientific parameters of the mission. Would the private sector take this into account? And are there laws in place that make the private sector have the same degree of rigor and not, like, hurting the future of scientific discovery?

GARVER: Yeah. So the specific case, as Bob mentioned before, the moon is a dead body. So going to Mars would be entirely different, since it is not. And you worry about contamination, or back contamination, both—you know, Hollywood’s done a great job getting us ready for that. (Laughter.) But absolutely, I think that when we’re to the point where we can go places and even asteroids and comets, we’ll have this. Of course, they come and we don’t—we can’t stop them. At least not yet. But we absolutely are not going to have things going to Mars—we have to have a lot more regulations when we’re doing that.

RICHARDS: So I can only speak from the one experience. We experienced the very—let’s say, a permissive environment and wanting this to all happen. That didn’t mean that it was an automatic, OK, go try it. We put a lot of thought into, before we submitted, a proposal to the federal government. A lot of thought into what voluntary disclosures we should make about our covenants of what we’re going to do, to maximize the chances that nobody’s going to say no. And one of the things we address—and contamination is an issue, as we talked, on many bodies, but not on the moon. So although we addressed it, it wasn’t a major issue. But there are things on the moon that people care about.

GARVER: Tranquility base. You can’t mess with it.

RICHARDS: Tranquility base. We’re not going to mess with it.

GARVER: We were trying to write that into the Google lunar XPRIZE. You can’t do that.

RICHARDS: So in our voluntary disclosures we recognized that document that you put together, that white paper that NASA put together on recommendations to all spacefaring entities. It wasn’t even, like, human. It could have been an alien. And we said: We’re going to embrace that. And we’re not going anywhere near that. And also, we pointed out that there is a matter of reciprocity there that as we put investments into activities, we don’t want anybody kind of messing with us either, right? So there’s heritage sites that have human cultural implications. We’re not going to mess with the Apollo site. There are going to be other countries who will have very important sites as well. I think we have to have due regard. But also, the commercial and private sector, the first private landing on the moon, whoever does it, that’s going to be an important site as well. And I would hope that the reciprocity happens.

DUELFER: We have time for one more question. I’m just—go, in the back.

Q: Yuri Sig (ph) of Abroad Magazine (sp).

I would like to know your opinion about so-called space tourism. It’s growing basically every year. Russia has two launches every year for millionaires and billionaires. And what are the prospects for this kind of business when you are discussing regulation, deregulation. People have money, they pay for all these things, and they want to fly wherever they want.

GARVER: I trained in Russia to be a space tourist. So I will start. It is, I think, a business that is real. We obviously have had more than 15, I think, space tourists so far, go to the space station, got to Mir. And that will continue. Soon we will have many more vehicles capable of doing this. And the—at least for low-Earth orbit, the regulatory environment is in place.

GABRYNOWICZ: The regulatory environment is in place. However, about two years ago Peter Diamandis and Burt Rutan, the people who developed the technology that demonstrated the XPRIZE said they were surprised that here we are, 17 years later, and nobody’s doing what they demonstrated was possible. And there’s an article that came out in the last week or so by Jeff Foust talking about the difficulties of XCOR. And Jeff Foust in that article questions what’s happening to the industry. So you might want to consult that.

GARVER: But, of course, NASA’s going to buying seats for their astronauts, they’ve already done, on two vehicles in the next year or you can even say much longer. That is how we’re going to get astronauts in space. So those vehicles will also be selling seats to the private sector. And so I think it’s definitely coming. It’s taken much longer than most of us hoped.

DUELFER: Well, we’re very dogmatic about—at the Council on ending at time. Let me just take a second—I’m sorry we didn’t get to everybody’s questions—but let me take a second to thank our panelists. As you can see, there’s going to be—this is going to be a growth business at State Department, regulatory, and that we’ll debate forever whether technology leads law or law should lead technology, or some mix of the two. I’m sort of with Lori, ask for forgiveness later, but go do it. Anyway, thank you very much. (Applause.)

(END)

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