Renewed interest in outer space has brought new sources of investment and technology. Last year witnessed 110 orbital launches, tied for the highest annual number since the early 2000s. Increased activity in outer space will accelerate potential environmental effects; for instance, space mining could lead to natural resources being extracted from the moon, Mars and other planets, and asteroids. The primary environmental issues include debris, pollution of earth’s atmosphere, and biological or nuclear contamination.
In this month’s issue of ELR—The Environmental Law Reporter, Scot W. Anderson, Julia La Manna, and Korey J. Christensen discuss the legal framework surrounding development of natural resources in outer space. The authors provide an overview of space mining regulations generally, and examine regulatory efforts to mitigate environmental issues.
Space – like the deep sea and Antarctica – is not subject to the jurisdiction of any single nation, leading to international treaties. But international law “governing” space activities is not strictly binding; regulation will rely predominantly on nations’ ability to enforce domestic policy and their willingness to conform to customary international law.
The 1967 Outer Space Treaty, signed and ratified by over 100 nations, is the fundamental treaty framing international space law. The balance of space law comprises just three treaties: (1) the Convention on International Liability for Damage Caused by Space Objects; (2) the Convention on Registration of Objects Launched Into Outer Space; and (3) the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched Into Outer Space.
On the domestic side, Title IV of the U.S. Commercial Space Launch Competitiveness Act provides a legal framework for mineral development and ownership in outer space. In 2020, the United States developed an international agreement, the Artemis Accords, designed to provide greater certainty for companies acting in space; signatories agree that space resources can be extracted and must commit to plan to mitigate orbital debris. Additional efforts come from the Hague International Space Resources Governance Working Group, which has adopted a set of “Building Blocks” that provide a framework for responsible space mining.
The Article also examines regulation of environmental issues associated with space mining. For example, the Outer Space Treaty can be interpreted to impose an obligation to mitigate debris. The United Nations Committee on the Peaceful Uses of Outer Space has developed guidelines to address space debris accumulation. And under the Building Blocks, nations and international organizations would be required to implement an oversight process to avoid harm from space debris. Domestically, NASA has developed orbital debris mitigation guidelines, and the Federal Aviation Administration requires debris analysis for space launch plans.
As outer space becomes more crowded, argue the authors, it will also become more regulated. We must look for ways to improve the law to address pollution, contamination, and debris while allowing exploration and development to move forward. In that regard, they conclude, the environmental law of outer space is no different than environmental law here on earth.
This month's featured ELR article is excerpted and adapted from Chapter 28 of Law of Environmental Protection (2021), available in pdf format for ELR subscribers at https://www.elr.info/tools/law-environmental-protection. Learn more at https://www.eli.org/law-environmental-protection.
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