By Troy Fowler

 

Like the vast expanse beyond Earth’s atmosphere, the possibilities of what humanity might someday achieve in outer space are limitless. In 2021, three American corporations conducted private launches of civilians into space, breaking a decades long government monopoly on space travel.[1] These pioneers are already household names, from Virgin Galactic founder Richard Branson and Amazon’s Jeff Bezos to a SpaceX crew assembled by Elon Musk.[2] These recent launches constitute one small step for man, one giant leap for capitalism.[3] As billionaires plot humanity’s path to the stars, calls for tighter regulation of commercial “space tourism” aim to hobble the industry before it can get off the ground.[4]

Detractors urge the need for increased government intervention and control of the fledgling commercial space industry.[5] They categorize these private endeavors as benefitting only the ultra-rich, arguing that commercial space travel is, and will continue to be, prohibitively expensive for the average person unless government steps in to regulate and subsidize the industry.[6] “Very few individuals will benefit from what will be an uber-luxury segment of the travel market, with Virgin Galactic tickets predicted to cost $250,000” at the entry level.[7] But even $250K is a substantially lower price tag than the $20M the first civilian space tourist—Dennis Tito—forked out in 2001 to hitch a ride to the International Space Station.[8]

To date, space tourism has yet to scratch the surface of its potential. It was just 60 years ago that the first human being exited Earth’s atmosphere.[9] This happened before the invention of the internet, which has utterly exploded in its own lifetime.[10] Central to the internet’s unprecedented growth was the unfettered competition of the free market, which shaped it into the global phenomenon we know and love today.[11] Like the unrestricted regulatory environment which allowed the internet to expand so rapidly, the commercial space industry would benefit from an approach by which government can most effectively support the growth of the private sector by staying out of its way.[12]

Commendably, the federal approach has been deliberately hands-off.[13] The United States is a party to a 1967 treaty wherein Earth’s space-faring nations agreed to authorize and continuously supervise the activities of their country’s nongovernmental entities in outer space.[14] In 2017, the Obama Office of Science and Technology penned a report supporting “a narrowly tailored [domestic] authorization process for newly contemplated commercial space activities, with only such conditions as are necessary for compliance with the United States’ international obligations.”[15]

At present, domestic regulation of space tourism remains effectively nonexistent in accordance with the Commercial Space Launch Amendments Act of 2004 and the Commercial Space Launch Competitiveness Act of 2015.[16] Although the industry at large has yet to adopt voluntary consensus standards, a 2019 FAA report indicated an enduring faith that “successful implementation of an industry-led framework could obviate the need for government involvement.”[17] Aside from basic informed consent, launch and reentry licensing, and mandatory insurance policies, the industry is largely entrusted to self-regulate.[18] Risks associated with launch and reentry must be presented in writing in a “manner that can be readily understood” by prospective space tourists.[19] Reentry regulations exist to protect the safety of innocent bystanders,[20] and in order to obtain a launch or reentry license, the licensee must obtain liability insurance to compensate for the maximum probable loss for any resulting injuries or deaths.[21]

Notwithstanding the scarce regulation on point, demand for private launches has risen significantly.[22] “[The SpaceX] mission will be looked at as the first mission of the opening of the second space age, where space travel became much more accessible to average men and women across the world.”[23] Space is the final frontier both scientifically and economically, and humanity cannot afford to let government bureaucracy impede its destiny. While space tourism may today seem like it is inaccessible for the common person, so too did the internet in the 1980s.[24] Thus, while some critics urge regulation or taxation of the commercial space industry, the exact opposite must occur if we wish to keep shooting for the sky.[25]

 

[1] Matthew Weinzierl, Space, the Final Economic Frontier, 32 J. Econ. Persps. 173, 173 (2018).

[2] Devin Coldewey, Virgin Galactic and Richard Branson Celebrate Launch of First Passengers into Space, TechCrunch (July 11, 2021), https://techcrunch.com/2021/07/11/virgin-galactic-and-richard-branson-celebrate-launch-of-first-passengers-into-space/; Aria Alamlhodaei, Blue Origin’s New Shepard Carries Jeff Bezos and Three Crew Members to Space and Back, TechCrunch (July 20, 2021), https://techcrunch.com/2021/07/20/blue-origins-new-shepard-carries-jeff-bezos-and-three-crew-members-to-space-and-back/; Aria Alamalhodaei, Inspiration4’s Successful Splashdown is Just the Beginning of Private Spaceflight for SpaceX, TechCrunch (Sept. 20, 2021), https://techcrunch.com/2021/09/20/inspiration4s-successful-splashdown-is-just-the-beginning-of-private-spaceflight-for-spacex/.

[3] Andrew Follett, A Tale of Two Spaceflights, National Review (Sept. 25, 2021, 5:00 AM).

[4] Joshua Jahani, We Must Subsidize and Regulate Space Exploration, TechCrunch (Sept. 8, 2021), https://techcrunch.com/2021/09/08/we-must-subsidize-and-regulate-space-exploration/.

[5] Id.

[6] Id.

[7] Id.

[8] Francesca Street, First Space Tourist Dennis Tito: ‘It Was the Greatest Moment of My Life,’ CNN (July 20, 2021), https://www.cnn.com/travel/article/space-tourism-20-year-anniversary-scn/index.html.

[9] April 1961 – First Human Entered Space, NASA (Sept. 7, 2018), https://www.nasa.gov/directorates/heo/scan/images/history/April1961.html.

[10] Dennis Wingo, Zero G, Zero Tax: Enabling Private Space Enterprise Through Tax Incentives, 19 Ad Astra, no. 1, 2007, at 24 (2007).

[11] Jahani, supra note 4; Wingo, supra note 10.

[12] Mark Whittington, Now Someone Wants to Slap a SPACE Tax on Jeff Bezos, Elon Musk, et al, The Hill (Aug. 8, 2021, 11:00 AM), https://thehill.com/opinion/technology/566865-now-someone-wants-to-slap-a-space-tax-on-jeff-bezos-elon-musk-et-al.

[13] Alyssa K. King, Cong. Rsch. Serv., R46500, The Future of Space Tourism (2020).

[14] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies Art. VI, Oct. 10, 1967, 18 UST 2410; 610 UNTS 205.

[15] Letter from John P. Holdren, Director and Assistant to the President for Science and Technology, to Chairman Thune and Chairman Smith, Office of Science and Technology Policy (Apr. 4, 2016), https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/csla_report_4-4-16_final.pdf.

[16] Commercial Space Launch Amendments Act of 2004, Pub. L. No. 108-492, 118 Stat. 3979; Commercial Space Launch Competitiveness Act of 2015, Pub. L. No. 114-90, 129 Stat. 704.

[17] Federal Aviation Administration, FAA Evaluation of Commercial Human Space Flight Safety Frameworks and Key Industry Indicators 36 (2017).

[18] 51 U.S.C. § 50901 et seq.; 64 F.R. 19614, 19614–21 (1999).

[19] 14 C.F.R. § 460.45.

[20] King, supra note 13.

[21] 51 U.S.C. § 50914.

[22] Jeff Foust, Crew Dragon Splashes Down to Conclude Inspiration4 Mission, SpaceNews (Sept. 18, 2021).

[23] Id.

[24] Wingo, supra note 10.

[25] Whittington, supra note 12.

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