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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