Amanda Berman
While almost anyone in the aerospace industry would be thrilled to have front row seats to
launches, residential communities in the U.S. space launch regions have become concerned with
the growing cadence of launches. Launching rockets is an inherently risky business and while
videos of “rapid unplanned disassembly” events delight the space mad, neighbors are faced with
questions of what if that lands in my backyard? Below is an overview of the legal protections
provided to the general public, and the space ports of the United States.
International Law
As to who is liable for a disaster resulting from a space related accident, one of the major space
law treaties came out of the United Nations Office for Outer Space Affairs addresses liability
directly- the Convention on International Liability for Damage Caused by Space Objects (the
Liability Convention). Entered into force in September 1972, Article 2 of the Liability
Convention states “a launching state shall be absolutely liable to pay compensation for damage
caused by its space object on the surface of the earth or to aircraft in flight.” This is pretty cut
and dry in the legal field which is known for nit picking at a problem, but, if it’s yours and it
causes damage on earth you have to pay for it.
This clearly leads to the next question: when is something “yours”? In space law, nation states
are the overseers of space activities, and as such while individual companies own, operate,
launch, and recover space craft the government who has agreed to launch, procure launch, host
the launching, or register the object is actually responsible for any damage it may cause. This
definition can be found in Article One of the Convention on Registration of Objects Launched
into Space.
It’s clear that multiple countries can be involved in a launch, and therefore there may be multiple
countries who are considered to have liability, at which point Article 2 of Registration
Convention tells nations to decide amongst themselves who will register the object. For the
purposes of this article, we will keep the perspective on the U.S. aerospace industry. As such,
when a U.S. registered space object causes damages on the Earth, the United States’ government
is ultimately liable for those damages.
State Laws on Property
In 1984, the U.S. passed the Commercial Space Launch Act (“CSLA”) which required the FAA
to license all commercial launches taking place within the United States or attempted
internationally by a U.S. entity. The FAA issues licenses after reviews of the policy implications,
the payload manifest, a financial responsibility determination, and an environmental review.
This financial responsibility determination is a highly informed estimate of the amount of
insurance or escrow needed to cover damage incurred to life or property as a result of a mishap
during launch or reentry. All permit and launch or reentry license holders must provide evidence
of funds equal to the MPL for that license.
This evidence can be in the form of liability and/or insurance policies. However, a GAO report
found that most of the licensed spaceports in the U.S. are confused about the amount of
insurance they are required to hold. In 2015, the SPACE Act extended existing third-party
launch indemnification from the end of 2016 through the end of 2023. That indemnification
would allow the federal government to cover any third-party damages from a commercial launch
accident above the maximum probable loss level that the company holding the launch license is
responsible for, up to a level of approximately $3 billion. The intent was to allow commercial
space service providers to deploy their vehicles and payloads in what is an inherently risky
business. Whether the SPACE Act will be renewed is still to be seen.
On a state-by-state level, space is a profitable industry for local economies, attracting jobs and
tourists to launch sites. As such launch hubs like Florida, New Mexico, and Texas have made it
even easier for space ports to mitigate their financial risks in those markets.
In 2013 New Mexico signed into law liability-waiving legislation aimed at saving the state’s
nearly quarter-billion-dollar investment in a futuristic spaceport and retaining its anchor tenant,
Virgin Galactic, an investment we now know may have been misplaced. The law exempts the
suppliers of spacecraft parts from liability lawsuits by passengers. Lawmakers had previously
exempted spacecraft operators from liability, but some space companies began passing up the
New Mexico spaceport in favor of states that had extended those protections to suppliers.
State Laws for the Public
Florida and Texas have similar laws mitigating the risk for space companies when it comes to
human risk. Both states have statutes on the books stating a spaceflight entity is not liable for
injury to or death of a participant resulting from the inherent risks of spaceflight activities so
long as they are warned of such risks. There are three exceptions however: if the entity commits
an act or omission that constitutes gross negligence or willful or wanton disregard for the safety
of the participant; has actual knowledge or reasonably should have known of a dangerous
condition on the land or in the facilities or equipment used in the spaceflight activities and the
danger proximately causes injury, damage, or death to the participant; or intentionally injures the
participant.
So, while having a spaceport near your home can occasionally cause concerns when launch
booms are unexpected, you can be assured that your property at least is covered by the
protections of the federal government. As a citizen however, if you ever decide to take a ride on a
rocket, make sure you are provided a warning of all the risks involved!