In my day job I’m a space lawyer. That might be part of why so many lawyers show up in my Ground Based Universe. I’m not sure, but it could be. I’m also hopeful that we will reach other planets, and that in my lifetime I’ll get to see a person walk on the Moon again. And on Mars.
One thing that makes me hopeful is that for all the obstacles that stand in our way–technical, financial, and legal–the commercial sector is moving forward. Blue Origin, SpaceX, Virgin Galactic, and others all are working hard–and making progress– on space transportation. Bigelow Aerospace is building inflatable space habitats, and has its sights set on the Moon. The asteroid miners will have to pick themselves back up, but space is hard.
We hear a lot about the legal obstacles, but there is one bit of legal optimism I can offer. Congress is in favor of space settlement, and said so officially in law. It’s useful in the context of concerns anyone may have over whether human settlement would upend NASA’s planetary protection policy. The one is a law. The other is just a policy.
Congress has told NASA that the agency’s long-term goals must enable the extension of a human presence beyond low-Earth orbit and into the solar system, “including potential human habitation on another celestial body and a thriving space economy in the 21st Century.” 42 U.S.C. § 18312. More explicitly, in 2010 Congress told NASA to work toward eventual “human habitation on the surface of Mars.” 51 U.S.C. §70504(b). No, I don’t know why it has to be on the surface. Yes, underground might be safer, but linguistic overindulgence in the drafting of laws requires a separate analysis of its own.
As a science agency that is part of the U.S. Government, NASA has interpreted Article IX of the Outer Space Treaty to mean that the agency’s missions must not only avoid what the ordinary person might consider harmful contamination—no toxins, no Agent Orange, no peanuts on the spacecraft—but microbial contamination as well. NASA tries to limit the presence of bacterial spores on any out-bound surface to no more than 300,000. Accordingly, NASA requires the sterilization of its spacecraft to avoid bringing microorganisms to Mars. The European Space Agency follows similar measures.
People are covered in bacteria, but the law says NASA must work to enable a human presence on Mars. Hopefully, the FAA, which regulates human transport to and from space (although not in space), should take the 2010 law into account if NASA attempts to push its planetary protection policy on the FAA’s regulation of commercial space flight.
I’ve been thinking about settlement quite a bit recently because I’ll be on a panel on June 5th, just two days from now. I am very much looking forward to participating in the National Space Society’s Policy Forum on Space Settlement: An Examination of Policy Options in Arlington, Virginia. I will be on the morning panel for How Current Space Law Encourages and Inhibits Space Settlement Development, and will address whether the Outer Space Treaty prevents human settlement of Mars. I’m going to say it doesn’t.
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