The ORBITS Act is a Giant Leap Forward for Environmental Law - Clay Hill
The ORBITS Act is a Giant Leap Forward for Environmental Law
“Houston, we have a problem.” The problem is the rapid accumulation of space junk in Low Earth Orbit (LEO). This paper provides background on the environmental issues associated with space debris, an overview of existing environmental law for space, and then considers the merits of a recently introduced bipartisan bill to establish a demonstration program to reduce the amount of space debris in orbit. The paper argues the recently introduced Orbital Sustainability (ORBITS) Act deserves recognition as a significant, and importantly, bipartisan, environmental protection proposal.
General background on space debris
The equivalent of a land-rush is occurring in an area without land—outer space; it is not settlers who are occupying this territory, but commercial satellites providing today’s digital infrastructure. There are approximately 5,500 satellites in orbit today, up from just 1,000 a decade ago. Experts forecast an additional 58,000 satellites will be launched by 2030.
Most of these are for communications services, like broadband, while others are for remote sensing. The proliferation of satellites in space is largely the result of two innovations: (1) the dramatic fall in launch costs brought about by re-usable rockets, and (2) smaller satellites. Smaller satellites facilitate launching in bunches, which provides the economy of scale that allows for large constellations—networks of satellites that provide signal coverage in sequence as the satellites pass out of range of a consumer receiving or relaying a signal back on Earth.
As the numbers of satellites increase, the problem of space debris escalates. Space debris includes defunct satellites, used rocket stages, fragments from broken or exploded satellites and rockets, and other man-made objects. The Department of Defense (DOD) tracks orbital debris larger than about 10 centimeters and noted more than 27,000 pieces of that size are in orbit. This debris poses a collision threat to human spaceflight, including to humans at the International Space Station and aboard commercial space vehicles like SpaceX’s Crew Dragon that recently docked at the Space Station.
Today’s satellites generally have a five- to six-year operational life. SpaceX plans to actively de-orbit their satellites, but it takes six months for the end-of-life satellite to maneuver into its death spiral, burning up in Earth’s atmosphere. So, at any given time, 10% of the satellites are de-orbiting.
Environmental concerns for satellites
The U.S. Government Accountability Office (GAO) recently published a report for Congress on the environmental effects of large satellite constellations. The GAO classifies the environmental effects of satellite constellations into categories based on location: (1) emissions in the upper atmosphere from rocket launches and satellite reentry, (2) effect on terrestrial and astronomical observations from sunlight reflections and radio transmissions, and (3) impacts in the space environment from orbital debris. While the full report cannot be summarized in this paper, this section will address a couple of points about each of those categories
Emissions: The emissions from launch and satellite reentry include particles, gases, and exotic materials. We can expect launches globally to reach 200 per year by 2030; of those, 120 are expected to be U.S. launches. The GAO observes that “there is large uncertainty in understanding how emissions will affect the atmosphere because of the lack of observational data.” There is concern that “emissions from rocket launches and satellite reentries could change the temperature of the stratosphere and deplete the ozone layer, which could increase the amount of harmful ultraviolet solar radiation reaching Earth.” It is not water vapor and carbon dioxide that are expected to be of utmost concern, but chlorine and particle emissions, such as black carbon and alumina.
Terrestrial observation: What is the impact of 58,000 satellites on light pollution? The cumulative effect does not appear to be extensively researched. The GAO cites one study that estimates the increase in diffuse night sky brightness to be less than one percent. The International Dark-Sky Association has called for protecting a dark night sky as an intrinsic part of the human environment and for extension of the National Environmental Policy Act’s protection of the “human environment” to the orbital space around Earth. The GAO observes that reflections from satellites could affect the public’s viewing experience and “may affect some Native American or Indigenous communities’ interactions with the night sky, which has cultural and religious implications for these groups.”
Orbital Debris:The environmental impact of orbital debris could impede access to space for future generations and disrupt access to vital infrastructure impacting our way of life at home. If satellites collide, the debris field could lead to “a runaway cascade of collisions…a major fragmentation event from a single satellite could affect all operators” in LEO. A chain reaction or runaway effect is known as the Kessler syndrome, and if it occurs, we may experience the loss of several space applications related to weather forecasting, climate monitoring, and satellite broadband communications.
Space is void of environmental law
There are five international treaties relating to space, but none are effective tools of environmental law for the problem of space debris. One commenter has noted that:
“International treaties regarding space liability are ambiguous and underdeveloped. Only one claim has ever been brought under an international space liability treaty, and it was eventually settled, eliminating the opportunity to test the treaty’s effectiveness. And even if a clear set of laws existed, the liable party that created the debris is often unidentifiable due to the limited ability to track space debris.”
The U.S. has no law that unambiguously protects the space environment. There is a dispute about whether the National Environmental Policy Act (NEPA) could and should apply to private commercial satellite launch and operations licensed by the federal government. If NEPA applied, federal agencies like the Federal Communications Commission would be required to prepare an environmental impact statement for any major action significantly affecting the quality of the human environment, which would arguably include the action of licensing large constellations. The National Aeronautics and Space Administration has regulations that implement NEPA differently than the FCC. Recent NEPA litigation has focused on the FCC which licenses commercial satellites that are primarily used for communications. The FCC requires operators to minimize or eliminate debris released during normal operations, minimize accidental explosions, minimize opportunities for collisions, and dispose of spacecraft and launch vehicles at the end of mission life. Importantly, the FCC uses a categorical exclusion from the NEPA to avoid environmental assessment of the impact of satellites in space.
The issue of whether NEPA applies to commercial satellite launches was recently before the federal Court of Appeals for the District of Columbia. In Viasat v. FCC, a competitor and an environmental group challenged an FCC order modifying SpaceX’s license for its broadband satellite constellation that allowed operations in a lower altitude without first preparing an environmental assessment under NEPA. The competitor, Viasat, operates a satellite that flies close to the SpaceX constellation. Viasat argued that SpaceX’s satellites may collide with other debris in orbit, causing more debris, which in turn would collide with the Viasat satellite. The Court held that this theory of injury was too speculative to support standing.
An environmental group, called “The Balance Group,” also asserted a NEPA claim in two capacities—as an organization and as an association acting on behalf of its members. The Balance Group boasts of a mission to provide a balanced approach to solving systemic issues that impact the human condition and the environment.For organizational standing, the inquiry is the same as for individual standing: there must be a showing of a concrete, imminent injury from the FCC’s licensing decision. The Court denied standing to the environmental group on organizational standing for failure to prove that its discrete programmatic concerns were directly and adversely affected where its affidavits made a mere “threadbare claim” that equipment and personnel of the organization would be redeployed and diverted to monitor the SpaceX constellation. The Court held that associational standing thresholds were not met because of insufficient information about whether the organization had the indicia of a traditional membership association, such as member involvement in financing the organization, guiding its activities, and selecting its leadership. Just two purported members submitted affidavits and those contained bare assertions of membership.
There is also a broader debate over whether outer space should be considered a “human environment” and therefore, within NEPA. A recent law review article argues that NEPA and existing case law supports the proposition that the “human environment” includes the “outer space environment.” A recent law review note asserts that the FCC’s approach to NEPA (using a categorical exclusion) is untenable as it allows commercial satellite projects to “escape review despite the very foreseeable impacts they might have on the environment.”
The debate is trending toward a partisan divide on the legal issue. The conservative Heritage Foundation thinktank argues that keeping red tape out of outer space will preserve America’s competitiveness in space, noting that in recent years the average environmental impact statement took 4.5 years to complete. The Natural Resources Defense Council argues the contrary, chastising the FCC for a “blind approach” to satellite launch and “indiscriminate use” of categorical exclusions to deny NEPA review when licensing SpaceX low earth orbit satellite constellations.
On the legal question, I agree with those who say NEPA does not apply because federal statutes generally apply only within the jurisdiction of the United States—Courts must be cautious in applying federal law to areas that are not under the sovereign control of the United States, like low earth orbit, absent clear congressional intent for such application. The primary purpose of the presumption against extraterritorial application of federal law is to protect against “unintended clashes between our laws and those of other nations which could result in international discord.”
The Orbital Sustainability (ORBITS) Act of 2022
The Orbital Sustainability (ORBITS) Act of 2022 is the first significant U.S. environmental law for space. Proposed in September of 2022, the Act is sponsored by the Chair and Ranking member of the Senate Commerce, Science, and Transportation Committee. I argue that the attributes of the law, understood in the context of the absence of other environmental laws for space, position it to be considered a pioneering environmental law.
The bill directs the National Aeronautics and Space Administration (NASA) to publish a list of identified orbital debris that poses great immediate risk to the safety of orbiting satellites and on-orbit activities. The bill provides that $150 million should be made available over five fiscal years (2023-2027) for competitive grant awards for remediation for orbital debris identified in the publish list. Those eligible for the grants include U.S.-based commercial entities, not-for-profits, and institutions of higher education.
To further jumpstart the innovative spirit of the commercial sector, the bill provides two additional carrots. First, NASA is directed to engage in research and development to mature the technologies to remediate orbital debris. Second, NASA is authorized to acquire services for the remediation of orbital debris. NASA can buy remediation services from entities other than the U.S.-based “eligible entities” for the demonstration awards. The significance of this provision should not be understated, because it signals that the U.S. taxpayer, rather than commercial space companies themselves, may foot the bill for remediating the debris left behind by commercial satellites.
The bill helps to prevent future debris by directing the National Space Council to update the Orbital Debris Mitigation Standard Practices. These are satellite design and operation principles and standards related to collision risk and probability, collision avoidance capability, post-mission disposal, and the duration of time to de-orbit. Federal licensing agencies for space activity like the Federal Aviation Administration, the Secretary of Defense, and the Federal Communications Commission, are directed to use those standards to inform “further development and promulgation of Federal regulations relating to orbital debris.” Finally, the bill directs the Secretary of Commerce to develop standard practices for on-orbit space traffic coordination. I think of this as deciding who has to yield course to whom on the orbit highway.
This legislation is significant environmental policy for four reasons: (1) it has bipartisan support which will create stability for a clean-up that will be ongoing; (2) it supports U.S. entities in securing a talented workforce needed to innovate and lower costs; (3) it attracts capital by leveraging the purchasing power of the federal government; and (4) it sets minimum standards to prevent debris.
It is of vital importance that the leaders of the Senate Committee on Commerce, Science, and Transportation from both major U.S. political parties have put their name to this legislation. Bipartisanship on orbital debris remediation is important because the policy will need consistent funding through the ups and downs of economic cycles, and because conflicts with foreign countries should be anticipated. Space, like the high seas, is part of the global commons, and therefore, U.S. policy for that domain carries implications for foreign affairs. A decade ago, a law review article tabulated that more than thirty countries have significant space industries, and eight had launch capabilities. Other spacefaring nations, whether the E.U., China, Russia, or others will want to maintain access to orbit. U.S.-based commercial mega-constellations of communications satellites and the impact of any debris fields they may cause may be viewed as pollution that impairs national security and economic objectives of other nations. The U.S. must anticipate challenges from strategic adversaries if the presence of U.S.-based assets in space impedes the national interests of those nations. Future Presidents and Congresses led by both parties must deftly navigate those challenges and maintain broad domestic support.
Second, the emphasis of this legislation on funding a debris remediation pilot for which only U.S.-based entities can compete is well-tailored to help the U.S. attract and retain global engineering talent in a highly competitive market for commercial space employees. In the space domain, there is no successful environmental outcome without a successful workforce development pipeline that secures the best and brightest engineers and technical talent.
The third reason this bill is strong environmental policy is that it gives confidence to capital markets to make long-term investments by signaling that the U.S. will procure commercial debris remediation services once they are demonstrated. This leverages the power of the federal government as a consumer of goods and services to spur major investments in new methods and new systems for removing debris.
Finally, the provisions to update the Orbital Debris Mitigation Standard Practices and create space traffic coordination standards of practice will assure satellite developers address collision risk, collision avoidance, and post-mission disposal to limit the growth of the space debris problem. Following the adage that an ounce of prevention is worth a pound of cure, good environmental outcomes in space will start with high standards written in coordination with industry.
In conclusion, if enacted, the ORBITS Act would be a giant leap forward for environmental protection in space. It would codify, on a bipartisan basis, American commitment to prevent further debris build up in space and would finance the innovation necessary to clean-up the debris that exists. While a more aggressive legislative step would include amending NEPA to clarify that it applies to space, politics is the art of the possible. Such a proposal would be unlikely to advance due to concerns about how environmental impact statements, and court challenges to their sufficiency, would hinder commercial space technology innovation –an area where America is happily at the forefront.
 Orbital Sustainability Act of 2022, S. 4814, 117th Cong. (2022)
 U.S. Gov’t Accountability Off., GAO-22-105166, TECHNOLOGY ASSESSMENT: LARGE CONSTELLATIONS OF SATELLITES, MITIGATING ENVIRONMENTAL AND OTHER EFFECTS (2022), p. 1 [hereinafter GAO].
 Id., p. 3. (Satellites operating collectively in groups with more than 100 active satellites are categorized as “large” constellations.)
 Alyssa K. King, CONG. RSCH. SERV., IF 11382, SMALL SATELLITE BOOM POSES CHALLENGES FOR REGULATORS (2020). (“During the past 10 years, miniaturization of electronics, optics, and sensors has made much smaller satellites technically feasible, stimulating venture capital and defense industry investments in smallsat companies to meet growing demand for data processing, global connectivity, and remote sensing services uses for imagery and weather analysis.”)
 Daniel Morgan, CONG. RSCH. SERV., R45416, COMMERCIAL SPACE: FEDERAL REGULATION, OVERSIGHT, AND UTILIZATION (2018), p. 15.
 NASA.gov, Space Debris and Human Spacecraft (May 26, 2021), https://www.nasa.gov/mission_pages/station/news/orbital_debris.html
 GAO, supra note 2, at 10.
 Id., p. 10.
 Id., p. 13.
 Id., p. 31.
 Ruskin Hartley, The Human Environment Includes Orbital Space, (Mar. 11, 2020), https://www.darksky.org/the-human-environment-includes-orbital-space/
 Boley & Byers, supra note 9.
 GAO, supra note 2, at 41.
 Gabrielle Hollingsworth, Space Junk: Why the United Nations Must Step in To Save Access to Space, 53 Santa Clara Law Rev. 239 (2013).
 Luke Punnakanta, Space Torts: Applying Nuisance and Negligence to Orbital Debris, 86 S. Cal. L. Rev. 163, 164 (2012).
 42 U.S.C. § 4321 et seq.
 42 U.S.C. § 4332(c).
 See, e.g., Daria Diaz, Trashing the Final Frontier: An Examination of Space Debris from a Legal Perspective, 6 Tul. Envtl. L.J. 369 (1993)(discussing how NASA regulations requiring an EIS when there is likely to be a release of substantial amounts of foreign materials into the earth’s atmosphere or into space are problematic because of their ambiguity); see also, Ramon J. Ryan, The Fault in Our Stars: Challenging the FCC’s Treatment of Commercial Satellites as Categorically Excluded from Review Under the National Environmental Policy Act. 22 Vand. J. Ent. & Tech. L. 923 (Summer 2020)(The author argues that NASA’s regulations implementing NEPA could provide a path forward for the FCC. Arguments that performing environmental reviews of commercial satellite projects would chill industry activity, could be overcome by conducting an environmental assessment (EA) similar to NASA’s routine payloads EA that would review the most commonly used components in commercial satellite projects.)
 Daniel Morgan, CONG. RSCH. SERV., R45416, COMMERCIAL SPACE: FEDERAL REGULATION, OVERSIGHT, AND UTILIZATION (2018), p. 15 (citing 47 C.F.R. § 5.64(b) and 47 C.F.R. § 25.114(d)(14).
 47 C.F.R. §1.1306; 47 C.F.R. §1.1307 (Generally, the FCC categorically excludes from environmental assessment everything but the siting of facilities located in wilderness areas, wildlife preserves, or facilities that may affect or are likely to jeopardize species listed under the Endangered Species Act).
 Viasat v. FCC, 47 F.4th 769 (2022).
 Id. at 780-781.
 Id. at 781-782.
 Alexander Q. Gilbert & Monica Vidamurri, Major Federal Actions Significantly Affecting the Quality of the Space Environment: Applying NEPA to Federal and Federally Authorized Outer Space Activities. 44-SPG Environs Envtl. L. & Pol’y J. 221 (2022).
 Ramon J. Ryan, The Fault in Our Stars: Challenging the FCC’s Treatment of Commercial Satellites as Categorically Excluded from Review Under the National Environmental Policy Act. 22 Vand. J. Ent. & Tech. L. 923 (Summer 2020).
 See e.g., Michael Ellis, Keep Environmental Red Tape Out of Outer Space, The Heritage Foundation (August 6, 2021), https://www.heritage.org/government-regulation/report/keep-environmental-red-tape-out-outer-space
 Sharon Buccino, Look Before You Launch: What NEPA Requires of the FCC, National Resources Defense Council (September 8, 2021), https://www.nrdc.org/experts/sharon-buccino/look-you-launch-what-nepa-requires-fcc (last
 Michael Ellis, supra n. 21 (citing Nestle USA, Inc. v. Doe et al., No. 19-416, slip op. at 3 (June 17, 2021) (“[W]e presume that a statute applies only domestically, and we ask whether the statute gives a clear, affirmative indication that rebuts this presumption.” (internal quotation omitted)), https://www.supremecourt.gov/opinions/20pdf/19-416_i4dj.pdf. For purposes of the presumption against extraterritoriality, the territorial jurisdiction of the United States consists of “its land, internal waters, territorial sea, the adjacent airspace, and other places over which the United States has sovereignty or some measure of legislative control.” Am. Law Inst., Restatement (Fourth) of Foreign Relations Law § 404, cmt. (d) (2018).
 EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991); Environmental Defense Fund, Inc. v. Massey, 986 F.2d 528 (1993); Morrison v. National Australia Bank, 561 U.S. 247 (2019). For a comprehensive discussion of the presumption against extraterritoriality and whether it pertains to NEPA’s application to outer space, see, generally, Alexander Gilbert & Monica Vidaurri, Major Federal Actions Significantly Affecting the Quality of the Space Environment: Applying NEPA to Federal and Federally Authorized Outer Space Activities, 44 SPG Environs Envtl. L. & Pol’y J. 221 (2021).
 Orbital Sustainability Act of 2022, S. 4814, 117th Cong. (2022)
 Press Release. ORBITS Act would demonstrate technologies to clear dangerous orbital debris that threatens astronauts and satellites—and even crashed into a Washington state farm. (September 13, 2022), available at https://www.commerce.senate.gov/2022/9/cantwell-hickenlooper-lummis-wicker-introduce-bill-to-thin-out-the-900-000-pieces-of-orbiting-junk-that-endanger-the-future-of-space-exploration (last viewed December 8, 2022)
 Id. § 5(a)(“…the Administrator and the head of each relevant department or agency may acquire services for the remediation of orbital debris, whenever practicable, through open competition for contracts…”)
 Id. § 6(d).
 Gabrielle Hollingsworth, Space Junk: Why the United Nations Must Step in to Save Access to Space, 53 Santa Clara L. Rev. 239 (2013) (citing Lieutenant Colonel Joseph S. Imburgia, Space Debris and Its Threat to National Security: A Proposal for a Binding International Agreement to Clean Up the Junk, 44 Vand. J. Transnat’l L. 589, 593-94 (2011)).
 GAO, supra note 2 at 5. (The GAO estimates 63 percent of the satellites in orbit in 2022 are operated by U.S.-based entities, including government and commercial operators.)