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Bracing for the Impending Rocket Revolution: How to Regulate International Environmental Harm Caused by Commercial Space Flight

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Bracing for the Impending Rocket Revolution: How to Regulate International Environmental Harm Caused by Commercial Space Flight Bracing for the Impending Rocket Revolution: How to Regulate International Environmental Harm Caused by Commercial Space Flight Jennifer Friedberg TABLE OF CONTENTS I. INTRODUCTION .................................................................................. 199 II. THE COMMERCIAL SPACE INDUSTRY ............................................... 202 A. Orbital Commercial Space Flight.......................................... 204 B. Suborbital Commercial Space Flight .................................... 205 III. COMMERCIAL SPACE FLIGHT AND THE POTENTIAL FOR ENVIRONMENTAL HARM ................................................................. 207 A. The Effect of Rockets on the Stratosphere ............................ 207 B. The Effect of Suborbital Commercial Space Flight on the Stratosphere .......................................................................... 209 C. Geoengineering ..................................................................... 212 D. The Precautionary Principle and Commercial Suborbital Space Flight .......................................................................... 213 IV. HOW CAN ATMOSPHERIC HARM FROM COMMERCIAL SPACE FLIGHT BE REGULATED EFFICIENTLY? ........................................... 215 A. Regulation Through International Treaties ........................... 216 1. Can the International Environmental Impact of Commercial Space Flight Be Regulated Under Existing Space Treaties? ............................................... 216 Jennifer Friedberg is a 2013 J.D. candidate at the University of Colorado Law School. She also holds a B.S. in Journalism with a Specialization in Photography from the University of Florida. 198 Colo. J. Int’l Envtl. L. & Pol’y [Vol. 24:1 2. How Does the 1979 Convention on Long-Range Transboundary Air Pollution Apply to Commercial Space Flight? ................................................................. 219 3. International Treaties Can Be Enforced Through Arbitration ..................................................................... 220 a. Arbitration is the Preferred Method of Resolving International Disputes for High-tech Industries ...... 221 b. The Use of Arbitration to Resolve International Environmental Disputes .......................................... 222 c. Arbitration’s Role in Resolving Disputes Arising from the Outer Space Treaty, Liability Convention, and LRTAP ......................................... 223 B. Voluntary Standards in the Shadow of Government Regulations ........................................................................... 224 C. Historic Self-regulation by Transportation Industries ........... 225 V. CONCLUSION .................................................................................... 227 2013] Bracing for the Impending Rocket Revolution 199 I. INTRODUCTION The new commercial space market offers the world unprecedented access to space but may also herald unprecedented dangers to the upper atmosphere that could hasten climate change. The launching of satellites, scientific research payloads, and people into space is transitioning from a purely governmental enterprise to an increasingly private industry that receives government contracts.1 The private sector is assuming the role that governments once held in space activities, particularly in the United States. For instance, private companies including Lockheed Martin2 and SpaceX3 have designed spacecraft capable of delivering astronauts to the moon and the International Space Station. Until there is a viable private alternative, U.S. astronauts must hitch a ride on the Russian Soyuz for a lift to the International Space Station, so private spacecraft capable of filling that void would fill a profitable and necessary role in the United States’ space program. Many nations, including the United States, are rapidly creating new legislation and regulatory bodies to govern the new commercial space market.4 However, there are certain global problems that are challenging to regulate with existing laws. For instance, one such problem is harm from commercial space craft to the atmosphere that could hasten climate change. In the coming years, commercial space activity is expected to increase as the world grows more reliant on satellite-based technology for broadband internet, voice communications, satellite radio, television, and global positioning system devices.5 The new realm of suborbital commercial space flight is evolving and may soon provide such services as space tourism, high-speed travel, and even package delivery.6 All of 1. FED. AVIATION ADMIN., 2011 COMMERCIAL SPACE TRANSPORTATION FORECASTS 15 (2011), available at http://www.faa.gov/about/office_org/headquarters_offices/ast/media/2011%20Forecast% 20Report.pdf [hereinafter FORECASTS]. 2. Alan Boyle, Lockheed Martin to Build Future Moonship, MSNBC (Sept. 1, 2006), http://www.msnbc.msn.com/id/14594789/ns/technology_and_science- space/t/lockheed-martin-build-future-moonship/#.UEQ0Zo53aio. 3. NASA awarded SpaceX a $1.6 billion contract to deliver supplies to the International Space Station. First Outing for SpaceX, NY TIMES (Oct. 29, 2012), http://www.nytimes.com/2012/10/30/opinion/first-outing-for-spacex-pleases-nasa.html. 4. See Ronald L. Spencer Jr. et al., International Space Law: A Basis for National Regulation, in NATIONAL REGULATIONS OF SPACE ACTIVITIES (Ram S. Jakhu ed., 2010). 5. FORECASTS, supra note 1, at 47–72. 6. See, e.g., FED. AVIATION ADMIN., U. S. DEP’T OF TRANSP., THE U.S. COMMERCIAL 200 Colo. J. Int’l Envtl. L. & Pol’y [Vol. 24:1 these new capabilities will require careful regulation that preserves the environment while allowing the industry to flourish. For instance, in the United States, five companies plan to conduct commercial suborbital flights between 2012 and 2014.7 One of the five companies is Virgin Galactic (“Virgin”). A trip on Virgin’s SpaceShipTwo (“SS2”), which carries eight passengers and flies to an altitude of one-hundred kilometers (sixty-two miles) and then returns to Earth, costs $200,000.8 Despite the high cost, customers have made deposits on more than 440 flights.9 In addition to the money it has received from the deposits, Virgin has also secured funding through the United States National Aeronautics and Space Administration (“NASA”) and the Southwest Research Institute.10 As commercial orbital and suborbital space flight becomes a reality, some scientists and organizations within the United States’ Federal Aviation Administration (“FAA”) are concerned that commercial space flight may have a negative impact on the ozone layer and hasten climate change.11 What once sounded like fantasy—reasonably priced, frequent access to space—now appears poised to become a reality. These innovations likely will come with real-life consequences for the environment. Although exactly how many commercial space flights will take place in the near future is unclear, Virgin intends to “launch hundreds of SUBORBITAL INDUSTRY: A SPACE RENAISSANCE IN THE MAKING, available at http://www.faa.gov/about/office_org/headquarters_offices/ast/media/111460.pdf [hereinafter RENAISSANCE]; Véronique Ziliotto, Relevance of the Futron/Zogby Survey Conclusions to the Current Space Tourism Industry, 66 ACTA ASTRONAUTICA 1547, 1547–48 (2010). 7. RENAISSANCE, supra note 6, at 4. 8. Id. at 14. 9. Id. at 15. 10. Id. 11. FORECASTS, supra note 1, at 1–5; RENAISSANCE, supra note 6, at 2; Martin Ross et al., Potential Climate Impact of Black Carbon Emitted by Rockets, 37 GEOPHYSICAL RES. LETTERS 1 (2010); see generally OFFICE OF THE ASSOC. ADM’R FOR COMMERCIAL SPACE TRANSP., FED. AVIATION ADMIN., U. S. DEP’T OF TRANSP., GUIDELINES FOR COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT AND RELATED ENVIRONMENTAL REVIEW STATUTES FOR THE LICENSING OF COMMERCIAL LAUNCHES AND LAUNCH SITES (2001), available at http://www.faa.gov/about/office_org/headquarters_offices/ast/licenses_permits/media/ep a5dks.pdf [hereinafter GUIDELINES FOR COMPLIANCE]. 2013] Bracing for the Impending Rocket Revolution 201 fare-paying customers” beginning in 2013.12 Already, private companies in many countries routinely launch satellites into orbit.13 However, scientists are not sure exactly how many orbital and suborbital launches with the present amount of emissions it will take to negatively affect the stratosphere.14 Studies of natural phenomena that have an effect on the atmosphere similar to that of rocket emissions, such as volcanic eruptions, indicate that introducing small particles into the stratosphere can cause widespread problems, such as drought.15 Scientists are uncertain how many companies can launch vehicles with the current amount and type of emissions before the environment is adversely affected, so over-regulating the commercial space industry is premature, especially when the world economy stands to benefit from new jobs and industry growth.16 With reasonable standards and regulations, the new industry can flourish and the impact of potential harms can be minimized.17 Three issues should be considered in order to plan regulation for commercial space flight. First, the needs of the commercial space industry should be taken into account so that the fledgling industry is given a chance to flourish. Second, would-be regulators must consider the unique danger that space flight poses to the atmosphere and the potential consequences of environmental harm from commercial orbital and suborbital space flight. Third, existing treaties and voluntary industry standards should be considered as ways to regulate damage to the
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