Space: The Final Deregulatory Frontier

Ted Cruz is considering whether to loosen international obligations he worries could weigh down the U.S. outer-space industry. But experts warn of geopolitical blowback.

A 1/5 scale model size of NASA's solar-powered Juno spacecraft at the Jet Propulsion Laboratory in Pasadena, Calif. on July 1, 2016.
AP Photo/Richard Vogel
Brendan Bordelon
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Brendan Bordelon
May 23, 2017, 8 p.m.

As Re­pub­lic­an law­makers fe­ver­ishly work to roll back fed­er­al reg­u­la­tions, Sen. Ted Cruz is already look­ing bey­ond our world for rules to loosen or elim­in­ate.

Po­ten­tially in Cruz’s crosshairs are por­tions of the Out­er Space Treaty, a 50-year-old pact hammered out between the United States and the So­viet Uni­on dur­ing the height of the Cold War. With 106 sov­er­eign na­tions signed onto the treaty—which, among oth­er things, pre­vents the place­ment of nuc­le­ar weapons in space—the ac­cord is con­sidered sac­rosanct by many space-policy ex­perts.

That didn’t stop Cruz, the chair­man of the Sen­ate Space, Sci­ence, and Com­pet­it­ive­ness Sub­com­mit­tee, from hold­ing a hear­ing Tues­day to ex­am­ine wheth­er the United States should seek to amend or with­draw from the treaty to pro­mote a “light-touch” reg­u­lat­ory re­gime for the Amer­ic­an space in­dustry. Two treaty art­icles in par­tic­u­lar—one pre­vent­ing the sov­er­eign own­er­ship of ce­les­ti­al bod­ies and an­oth­er man­dat­ing the “au­thor­iz­a­tion and con­tinu­ing su­per­vi­sion” of non­gov­ern­ment­al or­gan­iz­a­tions in space—seemed par­tic­u­larly ripe for in­vest­ig­a­tion.

The sen­at­or pre­vi­ously ex­pressed a bi­as to­ward chan­ging the treaty, telling an At­lantic audi­ence last week that he hoped to gin up bi­par­tis­an sup­port in Con­gress for “mod­ern­iz[ing] it to cre­ate in­cent­ives for con­tin­ued in­vest­ment.” But after hear­ing from a united front of sev­en pan­el­ists Tues­day—each of whom ad­vised against the rene­go­ti­ation of or with­draw­al from the treaty—Cruz struck a dif­fer­ent tone.

“There was con­sensus among the wit­nesses that rene­go­ti­at­ing the treaty was not ne­ces­sary—that there was suf­fi­cient flex­ib­il­ity with­in the terms of the treaty to al­low Con­gress to le­gis­late, and le­gis­late a re­gime that would cre­ate a light-touch reg­u­lat­ory en­vir­on­ment,” the sen­at­or told re­port­ers after the hear­ing. “It was strik­ing, the con­sensus across those pan­els in that re­gard. And I think that points to a pos­it­ive and pro­duct­ive dir­ec­tion for the com­mit­tee to pro­ceed.”

“Light-touch reg­u­la­tion is—I be­lieve, and as the wit­nesses test­i­fied—con­sist­ent with the text of the treaty,” Cruz later ad­ded.

That doesn’t mean the Out­er Space Treaty is en­tirely off of Cruz’s chop­ping block. Some ex­perts have raised the pos­sib­il­ity that the pact also pro­hib­its the private own­er­ship of land on ce­les­ti­al bod­ies. And Cruz—who dur­ing the hear­ing mused wheth­er the U.S. gov­ern­ment should provide “40 miles and a lun­ar lander” to in­trep­id pi­on­eers seek­ing to col­on­ize the sol­ar sys­tems—seemed to sug­gest that pro­vi­sion may need amend­ing in the fu­ture.

“I think prop­erty rights will be an im­port­ant part of how we en­sure max­im­um in­cent­ives to ex­plore that fron­ti­er,” he told re­port­ers after the hear­ing. “How we do so, either con­sist­ent with the treaty lan­guage, or how we do so through modi­fy­ing the treaty lan­guage, re­mains an open ques­tion that we need to con­tin­ue to de­bate or dis­cov­er.”

Ex­perts—both those on the con­gres­sion­al pan­els and those who spoke to Na­tion­al Journ­al—were adam­antly op­posed to re­open­ing the Out­er Space Treaty. Since the pact only man­dates some form of private space reg­u­la­tion, they say there is broad flex­ib­il­ity for the United States to in­ter­pret the text in a way that al­lows for an ex­tremely light reg­u­lat­ory frame­work.

“It’s a total phantom; it’s a fal­lacy,” Mark Sundahl, a space-law ex­pert, said of the con­tro­versy over the treaty’s “au­thor­ize and su­per­vise” re­quire­ment. Seek­ing to amend that por­tion of the treaty, Sundahl and oth­ers warn, could back­fire if oth­er na­tions try to cre­ate even more oner­ous rules—or de­term­ine they’re free to ig­nore oth­er por­tions of the treaty, such as those de­signed to pre­vent the mil­it­ar­iz­a­tion of space.

Oth­ers warn that a glob­al back­lash could oc­cur even if the United States re­mains with­in the treaty but in­ter­prets its reg­u­lat­ory ob­lig­a­tions in the light­est way pos­sible. By ad­opt­ing a frame­work that fails to place even lim­ited rules on space­far­ing com­pan­ies, space-law ex­pert Mi­chael List­ner said, the United States would upend in­ter­na­tion­al norms and push rival powers to con­sider un­shack­ling their own com­pan­ies.

“It’s go­ing to cause con­fu­sion,” List­ner told Na­tion­al Journ­al. “And it might per­suade Rus­sia or China to take more and more loose in­ter­pret­a­tions of the treaty as well. So it’s kind of a dom­ino ef­fect.”

Cruz’s tar­get­ing of the Out­er Space Treaty is part of a broad­er push by con­gres­sion­al Re­pub­lic­ans to roll back reg­u­la­tions in out­er space. On March 8, the House Sci­ence Sub­com­mit­tee on Space took aim at an April 2016 Obama ad­min­is­tra­tion re­port that re­com­men­ded ful­filling the treaty’s ob­lig­a­tion to reg­u­late private space firms through a “mis­sion au­thor­iz­a­tion” ap­proach over­seen by fed­er­al agen­cies.

Rep. Bri­an Babin, the sub­com­mit­tee’s chair­man, said he had “ser­i­ous re­ser­va­tions” about the pro­pos­al, which he called “well-in­ten­tioned” but “ill-con­ceived.” And Sci­ence Com­mit­tee Chair­man Lamar Smith said a gen­er­al “crisis of over­reg­u­la­tion” was be­hind his de­cision to op­pose the pri­or ad­min­is­tra­tion’s re­com­mend­a­tions.

“In­stead of pre­sum­ing that ex­pans­ive new agency reg­u­lat­ory powers are needed, the con­ver­sa­tion is shift­ing to how to min­im­ize agency reg­u­la­tion and avoid it al­to­geth­er,” Smith said.

Frans von der Dunk, a pro­fess­or of space law at the Uni­versity of Neb­raska Col­lege of Law, thinks that line of reas­on­ing goes a long way to ex­plain­ing angst in Wash­ing­ton over the Out­er Space Treaty and oth­er ele­ments of space reg­u­la­tion.

“I don’t see any ob­ject­ive reas­on why the situ­ation—in terms of the United States’s abil­ity to keep con­trol of what’s go­ing on—I don’t see any new reas­on why that has changed over the last year,” von der Dunk told Na­tion­al Journ­al. “The only ma­jor change on the is­sue is, ob­vi­ously, the fact that now we have a new ad­min­is­tra­tion that, in many re­spects, tries to do away with as many bur­dens as pos­sible.”

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