Yesterday, TechFreedom filed comments in response to the Federal Communications Commission’s (FCC) Notice of Proposed Rulemaking (NPRM) seeking comment on the modernization of its National Environmental Policy Act (NEPA) rules. Our comments focus on the issue of whether NEPA applies to activities in outer space.
“NEPA’s language shows no indication Congress intended it to apply beyond U.S. territory,” said James E. Dunstan, TechFreedom’s Senior Counsel. “The absence of any explicit statutory reference to outer space is especially telling given when NEPA was passed: just a few months after the Apollo 11 Moon landing and just two years after the Senate ratified the Outer Space Treaty. Clearly Congress was aware of advances in space, and it could easily have expressed a desire for NEPA to apply there.”
“The 2023 amendments to NEPA make even clearer that it does not apply to activities in outer space,” Dunstan continued. “The 2023 NEPA Amendments only serve as an exclamation point on this long-running sonnet. In 2023, Congress added 5336e(10)(B)(vi), by which Congress excludes from the definition of a major federal action (MFA) ‘extraterritorial activities or decisions, which means agency activities or decisions with effects located entirely outside of the jurisdiction of the United States.’ Since outer space, under international law, is not within the jurisdiction of the United States, then licensing decisions which may impact outer space do not constitute an MFA. This dovetails with the long case law against extraterritorial application of U.S. laws and should slam the lid shut on this issue.”
“Environmental impacts of space activities in U.S. jurisdictions are best handled by other agencies” Dunstan concluded. “That determination is best left to the Federal Aviation Administration (FAA), the lead federal agency when it comes to licensing launch and reentry of space vehicles. The FCC’s environmental review of satellites has always been, at most, a backstop to the FAA. The FCC’s authority to regulate outer space activities—other than as related to spectrum allocation and licensing—has always been problematic. It is time for the Commission to acknowledge its limited role in the space regulatory ecosystem, and acknowledge that NEPA does not provide any authority to review the environmental impact of satellites.”
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Find these comments on our website, and share them on Twitter and Bluesky. We can be reached for comment at media@techfreedom.org. Read our related work, including:
- Comments regarding the draft European Union Space Act (Aug. 15, 2025)
- We need a National Space Council to chart our future in outer space, SpaceNews (Jan. 23, 2025)
- Comments on the mitigation of orbital debris in the new space age, (Jun. 27, 2024)
- Our comments on NASA’s Lunar Non-Interference Questionnaire, (Jun. 7, 2024)
- Our comments to the FCC on In-Space Servicing, Assembly, and Manufacturing (ISAM) (Apr. 29, 2024)
- Do We Still Have the Right Stuff?, City Journal (Dec. 2023)
- SpaceX Makes Progress on Second Test of Starship, Reason (Nov. 18, 2023)
- SpaceX, DOJ, INA and ITAR — Acronyms (and Common Sense) Run Amok, DC Journal (Sep. 25, 2023)
- Tech Policy Podcast #349: The State of Space Exploration (July 25, 2023)
- Regulating the space economy is vital for America’s continued global leadership, Washington Examiner (July 15, 2023)
- Written testimony before the House Committee on Science, Space, and Technology on U.S. leadership in commercial space (July 13, 2023)
- Tech Policy Podcast #348: The State of Space Regulation (July 11, 2023)
- Regulating Outer Space: Of Gaps, Overlaps, and Stovepipes, Center for Growth and Opportunity (July 10, 2023)
- Comments to NASA on the “Moon to Mars Objectives” (June 3, 2022)
- Comments to the OSTP on their orbital debris strategic plan (Dec. 31, 2021)
About TechFreedom: TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.