Protecting Earth and Space Industries from Orbital Debris: Implementing the Outer Space Treaty to Fill the Regulatory Vacuum in the FCC's Orbital Debris Guidelines

Abstract

The Outer Space Treaty (OST) is the foundation of all international space regulation. It establishes space as the province of all humankind and promotes its peaceful use and exploration for the benefit and in the interests of all countries. In 2020, the FCC released its “Mitigation of Orbital Debris in the New Space Age” guidelines for commercial satellite applicants. While these guidelines appear to substantively address the risks posed by orbital debris to Earth and space industries, they fail to do so in two key areas: (1) by not adopting specific requirements for applicants to share data needed to effectively establish space situational awareness (SSA); and (2) by not requiring applicants to prepare an Environmental Assessment on low Earth orbits (LEO). This article exposes fatal flaws in how the FCC regulates satellite operator access to LEO by examining how the regulation of satellite constellations enables the creation of orbital debris and occupation of orbital shells in a manner that may compromise Earth's satellite-based information infrastructure and violate the OST, and it recommends legislative language that will ensure FCC regulations are in compliance with the OST and are sufficient for establishing SSA. Given the Supreme Court's 2022 ruling in West Virginia v. EPA, adopting such language constitutes a clear congressional authorization to protect Earth's orbital environment and helps operationalize the OST's proclamation that spacefaring activities be for the benefit and in the interests of all countries.