Statutes Limiting Liability for Space Activities

Chapter 8 Statutes Limiting Liability for Space Activities

When Congress passed the Competitiveness Act, the Space Friendly States’ statutes became preempted, which renders them nearly obsolete (with some exceptions discussed below). However, an analysis of liability exposure would be incomplete without at least a discussion of these statutes and what they brought to the table before the change in federal law. As stated by the author, and scholars since then “[t]he state statutes are imperfect at best.”1 This is because the statutes either fail to explicitly immunize operators from negligence claims or, worse,2 explicitly fail to do so (in the sense that the statutes expressly do not apply to negligence claims, the lowest level of culpability). In addition, they continue to be applicable and very important for activities taking place outside faa’s jurisdiction. Virginia’s Space Flight Liability and Immunity Act of 20073 granted conditional liability immunity to companies providing human spaceflight services in the event of an injury resulting from the risks inherent in spaceflight. (It is worth noting that immunizing a chsf operator against inherent risks may not necessarily immunize a chsf operator for negligence because inherent risks are not the result of negligence). Space tourism exists in two realms: orbital flights and suborbital flights. Space tourism, per se, technically started in 2001 when the first “fee-paying” iss visitor, Dennis Tito, made a seven-day sojourn.4 This was an orbital trip. How- ever, since then suborbital tourism has presented itself as the “cheaper” and more accessible alternative. Companies like Virgin Galactic and xcor (now bankrupt) have been offering tickets. Because this type of space tourism does not go through the US Government (like a trip to the iss would) states can now compete to attract these companies and any future ones. Virginia was the first to do so, as described by the faa, “Virginia has recently taken the lead in the area of innovative incentives to lure space transportation companies to the state.”5

1 See supra, Schaefer at 251 (citing Meredith & Lammers, 25 Air & Space Law. at 6). 2 See supra, Schaefer, 33 Berk. Int’l Law J. at 251. 3 Va. Code Ann. §§ 8.01-227.8 to 8.01-227.10 (2007). 4 M. Wall, First Space Tourist: How a U.S. millionaire Bought a Ticket to Orbit (Apr. 27, 2011), available at https://www.space.com/11492-space-tourism-pioneer-dennis-tito.html (last accessed September 18, 2018). 5 faa, State Support for Commercial Space Activities at 3, available at https://www.faa.gov/ about/office_org/headquarters_offices/ast/media/State%20Support%20for%20Commer- cial%20Space%20Activities.pdf (last accessed on September 18, 2018).

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Florida was close on its heels, which is not surprising given that nasa launches— when the United States was still operating the Space Shuttle—took off from there. New Mexico was next, eventually joined by Arizona, Texas, Colorado, Oklahoma, and California adopting comparable legislation.6 In 1995, Virginia created the Virginia Commercial Space Flight Authority (“Virginia Space”) and eventually build the Mid-Atlantic Regional Spaceport (“mars”).7 Virginia applied for and obtained an faa license to launch to orbit, which led to the establishment of mars on the southern portion of nasa’s “Wallops Island.” mars has two launch pads, a mid-class launch facility and a small-class launch facility.8 As part of its space incentive package, Virginia boasts the following:

− “ZeroGravity, ZeroTax” that provides state income tax incentives to locate and headquarter space flight launch and training business op- erations in Virginia; − Spaceflight Liability and Immunity Law, where the space flight entity is not liable for a participant injury resulting from the risks of space flight activities in Virginia; − foia relief to the customer, when doing business with vcsfa mars; − Enterprise Zone established at mars; and − Foreign Trade Zone established at mars.9

Virginia has hosted or continues to host the following civilian space companies: Iridium Communications, SkyTerra, Space Adventures, SpaceQuest, Ltd., TerreStar Corporation, and Transmitter Location Systems. Virginia, however, remains a more obscure “Space Friendly State” with others stealing the spot- light in just a few years. Florida’s foray into commercial space transportation was natural given its position as launch state for nasa. Florida also has no fewer than ten air force bases and naval air stations.10 Florida also has two space ports, allowing for

6 See M. Blasingame, Nurturing the United States Commercial Space Industry in an Interna- tional World: Conflicting State, Federal, and International Law, 80 Miss. L. J. 741 (2010). 7 Virginia Space, available at https://www.vaspace.org/ (last accessed September 18, 2018). 8 Virginia Space & mars, Services of the Mid-Atlantic Regional Spaceport (mars), available at https://www.vaspace.org/index.php/services (last accessed September 18, 2018). 9 Id. 10 Enterprise Florida, Aviation & Aerospace (2016), available at http://www.enterpriseflorida. com/wp-content/uploads/brief-aviation-aerospace-florida.pdf (last accessed September 18, 2018).