For hundreds of thousands of dollars, you can purchase tickets to board an aircraft and blast to the limits of the Earth’s atmosphere. While billionaires like Jeff Bezos have already experienced this view from above with his enterprise, Blue Origin, other companies promise to launch their first customers into space by the end of this year. They hope to offer memorial services, off-planet DNA storage and even wedding ceremonies.
While commercial space travel currently carries an expensive price tag, these costs are falling and getting off planet is becoming more accessible all the time. But questions remain about the rules governing space flights and protecting passengers, and some argue the cart is being put before the horse unless a consensus is reached before commercial space flight truly takes off as an industry.
As the commercial sector has emerged, there has been growing recognition that the federal government has to catch up with it, said John Logsdon, a professor emeritus of political science and international affairs at George Washington University who has been studying space policy for 60 years.
As it stands, participant safety on commercial space flights is like “the Wild West,” Logsdon told Salon in a phone interview, noting that federal agencies are currently tied up in bureaucratic conflicts to determine which agency will be responsible for rulemaking.
The Outer Space Treaty of 1967 requires governments to oversee private companies going to space, and in 2004, the Federal Aviation Administration (FAA) under the Department of Transportation was tasked with regulating this activity through the passage of the Commercial Space Launch Amendments Act. The agency published guidelines for companies to follow regarding the launch and re-entry of commercial spacecraft and issues permits required to do so. However, the agency does not have the force or effect of laws.
“There’s really no overall enforcement mechanism,” said Bruce McClintock, a senior policy researcher who runs the RAND Space Enterprise Initiative. “Each agency has its own process for tracking compliance with guidelines.”
"There’s really no overall enforcement mechanism."
Indeed, the FAA isn’t the only agency involved with commercial space flight. The Department of Commerce regulates private remote sensing systems and the Federal Communications Commission regulates satellites. The White House’s National Space Council has also been tasked with creating legislation that grants rulemaking authority to agencies.
Yet this segmented oversight is already leading to conflict: The Navajo Nation, for example, objected to the practice of depositing human remains on the Moon because they see it as sacred. In 1998, the Navajo also objected to NASA sending the remains of geologist Eugene Shoemaker to the Moon for the same reason, and the agency promised to consult the tribe with any similar plans in the future. However, NASA doesn’t have control over commercial enterprises sending remains to the Moon.
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It’s up for debate whether moon extraction violates the Outer Space Treaty, which states that lunar resources are "not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." Due to the uncertainty of whether extracting the moon’s resources would violate this treaty, an additional international treaty called the Moon Agreement was created in 1979, but many countries didn’t sign it, including the three leading space powers: the U.S., China and Russia. Despite questions that remain, companies are already planning for a moon economy anyway, according to Douglas Ligor, a senior social scientist at RAND.
“Social science tells us that powerful first movers act first so that they can set the rules that benefit them,” Ligor told Salon in a video call. “If you allow powerful first movers to act, they will be biased toward forming rules later on that significantly benefit them to the exclusion of others.”
In 2004, Congress issued a moratorium prohibiting the FAA from issuing regulations intended to protect the health and safety of flight participants. It has been reinstated multiple times but is once again set to expire on March 8, 2024. Commercial space flight entities have argued that allowing the moratorium to expire and cracking down on regulations will stifle innovation and that a “learning period” was necessary to understand what regulations would be needed in the first place.
"We’re at a stage where the current patchwork of regulatory responsibilities across the U.S. government is creating a bottleneck for commercial industry."
Others say the lack of regulations makes it difficult to create any. For example, companies aren’t required to share safety data publicly, making it difficult to create a set of industry standards. Currently, participant safety boils down to the fine print on consent forms, much like skydiving or other “play at your own risk” activities.
Three of the leading companies already operating commercial space enterprises, SpaceX, Axiom Space and Blue Origin, did not respond to a request to comment by the time of this story's publication.
“Right now, space safety for the participant is up to the commercial carrier and the only thing that commercial carrier has to do is provide an individual with informed consent,” Ligor said. “But in terms of the data and information about what the commercial carriers do to keep participants safe — that information is currently considered proprietary information within the companies, and they don’t have to share it with the FAA.”
RAND recommended the moratorium be lifted so that more energy is focused on establishing clear regulations, but others argue the FAA is not ready for more regulation. Should the moratorium expire next month, the FAA does not have a set of proposed rules ready to be implemented, but the agency did launch a rulemaking committee last year to get the ball rolling on creating regulations for human spaceflight occupant safety.
“We’re at a stage where the current patchwork of regulatory responsibilities across the U.S. government is creating a bottleneck for commercial industry,” McClintock said. “I do think it would help if there were an overarching lead agency that wouldn’t necessarily take on all the responsibilities from the existing agencies but would help to provide a coordinating authority that could help streamline the authorization process.”
Individual safety is at stake, and some are concerned there won’t be enough pressure to finalize regulations and safety protocols until after an accident happens. In the early days of aviation, for example, people could pay pilots directly to take unregulated rides on small biplanes. Accidents were relatively common before industry-wide standards were set, with one analysis from the Smithsonian finding a postal pilot died every 115,325 miles flown in 1919, but that number dropped to one death per 2.5 million miles flown by 1926.
In 2014, Virgin Galactic’s SpaceShipTwo’s pilot was killed in a test flight for the company’s commercial aircraft. Afterward, an investigation by the National Transportation Safety Board revealed that, although the crash was caused by human error, the FAA excused the company that built the spacecraft from some human and software error safety requirements.
“Based on historical analysis, there’s often a lack of regulation until there’s a major mishap, and then government tends to react quickly and sometimes in excess to regulate a sector,” McClintock said. “My recommendation is to take a smaller, more measurable approach now that is going to last several years.”
Companies have generally tended to follow the regulations set by the FAA and other entities, but in 2018, Swarm Technologies made headlines for being the first company to send a satellite into space without permission from U.S. regulations by piggybacking on an Indian rocket. The FCC penalized Swarm Technologies with a $900,000 settlement, but the unprecedented unapproved launch illuminated some of the regulatory gaps in this uncharted territory.
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Satellite collisions are costly and risk becoming more common with more objects being launched into orbit. Abiding by a shared regulatory framework not only protects costly investments but also ensures Earth’s orbits remain clear for future launches.
Regulations on commercial space travel will also have large implications on future space exploration, including deciding who gets sent to space and what sorts of responsibilities must be considered if anyone does try to colonize it, said Amy McGuire, the director of the Center for Medical Ethics and Health Policy at Baylor College of Medicine.
“One of the concerns is that if the commercial industries are the ones sort of leading the way in this, they may be the ones setting the agenda for what the rules are as opposed to more of a social, democratic process,” McGuire told Salon in a video call. “I’m not sure that there are really clear answers.”
CORRECTION: This story has been updated to reflect that the FAA cannot issue fines and address violations.
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