John D. Rummel East Carolina University and the McGill University Institute of Air and Space Law “Due Regard” in Space Activities: Avoiding Harmful Contamination in the Exploration and Use of Outer Space

The Chicago Convention on International Civil Aviation (1944) Part 1, Article 3(a)) The “convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft.” Part 1, Article 3(d) “contracting States undertake, when issuing regulations for their state aircraft, that they will have due regard for the safety of navigation of civil aircraft.” Part 1, Article 3 bis (a) “the contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight....”

The Outer Space Treaty (OST, 1967) and the Moon Agreement (MA, 1979) In the OST (Article IX) and in the Moon Agreement (Article 2; Article 15(2)), it is stated that States will act with “due regard to the corresponding interests of all other States Parties” The MA (Article 4) also has a provision that “due regard shall be paid to the interests of present and future generations as well as to the need to promote higher standards of living and conditions of economic and social progress and development” Which considerations are intended to be of a contemplative and progressive nature (but require future knowledge)

The Outer Space Treaty (OST, 1967), the Moon Agreement (MA, 1979), etc., continued Giving “due regard to the corresponding interests of all other States Parties,” with an emphasis on “all other” may also be a challenge OST Article IX focuses on specific activities and on studies of the Moon and other celestial bodies OST says, “avoid their harmful contamination” and also “adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter,” the MA adds “or otherwise” The implications of Article XXI of the Liability Convention suggest that the avoidance of environmental damage that could be caused by a space object is of equal concern

Responsibilities Under the Outer Space Treaty (OST, 1967) OST Article VI notes that States Parties bear international responsibility for national activities in outer space UN Resolution 59/115 of 10 December 2004 encourages States Parties to “consider enacting and implementing national laws authorizing and providing for continuing supervision of the activities in outer space of non-governmental entities under their jurisdiction” Implementation coverage is spotty, and inconsistent, and for some spacefaring nations, virtually non-existent—at least in some areas

The United States as an Example The US FAA’s Office of Commercial Space Transportation (OCST) is charged with regulating the U.S. commercial space transportation industry and licensing commercial space launches under the US Code’s Commercial Space Launch Act Vertical or horizontal launches Commercial re-entries The Commercial Space Launch Act also requires the FAA to consult “with the US Department of State to determine whether a license application presents any issues affecting U.S. foreign policy interests or international obligations” The FAA and OCST work under the US National Environmental Policy Act (NEPA)

NEPA and Commercial Launch Regulation OCST meets its NEPA obligations with the production of several programmatic Environmental Impact Statements (EISs) For “Commercial Reentry Vehicles,” (1992) For “Licensing Launches,” (2001) covering vertical launches For “Horizontal Launch and Reentry of Reentry Vehicles,” (2005), and For “Streamlining the Processing of Experimental Permit Applications,” (2009) Tiered from those are a number of EISs that cover the local environmental effects of space launches and the development of launch and landing sites. There is a mandatory public comment period on a draft EIS which allows comment from all entities—one way that fine-scale considerations of “the corresponding interests of all other States Parties” can be captured in the US commercial launch licensing process

NASA (and OCST) and NEPA NASA is also bound by the NEPA process and if major procurements are planned involving commercial space transportation entities, NASA join with OCST on NEPA For example, NASA has previously announced (2014) that it “has selected 12 technology experiments to fly on the first commercial research flight on Virgin Galactic's SpaceShipTwo” The environmental effects of this use of SpaceShipTwo (and its successors) could require new justification, depending on the status of the environmental review of the launch/landing site E.g., the perceived pollution effects of the use of nitrous oxide as an oxidizer and aluminum polyamide as a fuel, something not yet finalized by Virgin Galactic Such a review might be simple or tangled in concerns about the atmosphere and its load of particulates

NASA, NEPA, and Avoiding Adverse Effects NASA, of course, is no stranger to NEPA, with perhaps the largest NASA EIS focused on the Space Shuttle Program (1978) Numerous EISs and Environmental Assessments have been issued for all major missions and numerous minor actions A commitment to its due regard of the interests of “all other States Parties” was spelled out in the Final Rule published on NASA’s Procedures for Implementing NEPA (2012) Under “Actions normally requiring an EIS,” it gives the example: Development and operation of a space flight project/program which would return samples to Earth from solar system bodies (such as asteroids, comets, planets, dwarf planets, and planetary moons), which would likely receive a Restricted Earth Return categorization... from the NASA Planetary Protection Office or the NASA Planetary Protection Subcommittee”