Today, TechFreedom filed an amicus brief urging the D.C. Circuit not to extend the National Environmental Policy Act (NEPA) into outer space.
Through its Starlink service, SpaceX has become the first company to offer widespread, low-latency, reasonably priced, direct-to-consumer satellite broadband. In the order at issue here, the FCC granted SpaceX’s request to begin launching its Gen2 Starlink satellites. On appeal, an objector contends that the FCC’s order failed to comply with NEPA, a procedural statute that requires the government to assess the environmental impact of “major actions”—defined broadly to include many permit approvals. Both the FCC and SpaceX contend that the FCC satisfied the statute’s requirements.
TechFreedom’s brief argues that whether the order complies with NEPA is irrelevant, because NEPA does not apply in the first place.
“American law is presumed to apply only where America is sovereign,” said James E. Dunstan, TechFreedom’s General Counsel. “America is not the sovereign of space. On the contrary, our nation has little control over what other countries do on the final frontier. Indeed, if we were to smother our satellite companies in procedural red tape, nothing would stop other nations, such as China, from steaming ahead with their own broadband satellite constellations, with far less concern for the space environment.”
“Absent a clear signal from Congress, NEPA does not apply in space, and NEPA contains no such signal,” Dunstan continued. “On the contrary, the law says that it applies only to the ‘human environment’ and the ‘biosphere.’ The absence of a clear reference to space is especially telling when you consider the year NEPA was passed by Congress: 1969. It was the height of the Space Race. We had just joined the Outer Space Treaty and landed on the Moon. Never in American history has Congress been more aware of outer space—but NEPA makes no mention of it.”
“SpaceX is doing something remarkable,” Dunstan concluded. “It is simultaneously innovating in the fields of rocketry, satellites, and broadband. And its goal—to provide affordable Internet to remote regions across the planet—is a valuable and laudable one. The D.C. Circuit should not impede the company’s progress at the behest of naysayers and their creative lawyers.”
Find this brief and release on our website, and share it on Twitter, Bluesky, Mastodon, Facebook, and LinkedIn. We can be reached for comment at firstname.lastname@example.org. Read our related work, including:
- Our comments to the FCC on supplemental coverage from space (May 12, 2023)
- Our comments to the FCC on expediting initial processing of satellite and earth station applications (Mar. 3, 2023)
- Our comments to the FCC on In-Space Servicing, Assembly, and Manufacturing (ISAM) (Oct. 31, 2022)
- Our amicus brief urging the D.C. Circuit not to extend the National Environmental Policy Act (NEPA) into outer space (Sep. 28, 2021)
- Bring on the Space Barons, Medium (Sept. 14, 2021)
- Can We (Legally) Colonize Space?, Freethink (Sept. 5, 2021)
- Rival Wants Regulators to Cripple Elon Musk’s Satellite Project, The Bulwark (Aug. 3, 2021)
- Who Wants to Step Up to a $10 Billion Risk?, SpaceNews (June 25, 2021)
- At Last, Dedicated Spectrum for Commercial Space Launches, press release (Apr. 22, 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.