Dissecting the FAA Lawsuit Surrounding the Regulatory Approval of Starship
John Gordon
On April 20, 2023, the space community watched as Starship took its first swing at orbit from SpaceX’s headquarters in Boca Chica, Texas. Just a few minutes into launch and after reaching “Max Q,” the sections of the rocket failed to separate, sending the behemoth tumbling through the atmosphere before ending in what the company called a “rapid unscheduled disassembly.”
On May 1, exactly 11 days after Starship exploded over the Gulf of Mexico, a lawsuit was filed in federal court in Washington D.C.. The lawsuit, brought by several environmental groups led by the Center for Biological Diversity, was actually against the FAA, not SpaceX.
While the law contained in the brief may seem complex on the surface, the premise of the lawsuit and the allegation is relatively simple: 1) courts are allowed to overturn agency decisions that violate U.S. law, and 2) the FAA decision to let Starship take flight violated a federal law called the National Environmental Policy Act (“NEPA”).
Courts Overriding Agencies
While there is a long and complicated history of what is known in the legal world as “Chevron deference,” where a court generally must defer to the executive agencies when interpreting U.S. statutes that give them power, the issue in the Starship lawsuit is much more straight forward. Under the Administrative Procedure Act, federal courts are expressly allowed to “hold unlawful and set aside” any agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” or that was promulgated “without observance of procedure required by law.”
Here, the plaintiffs bringing the suit are not alleging that the FAA incorrectly interpreted the law giving it its power, but instead blatantly violated an environmental law that it was required to comply with. So the question becomes: did Starship’s FAA license violate the law?
NEPA and Regulatory Agency Compliance
NEPA is an essential U.S. environmental law that governs how the federal government must pay close attention to environmental issues while making decisions such as issuing licenses. Broadly, under 42 U.S.C. 4331, the federal government must “use all practicable means and measures . . . to create and maintain conditions under which man and nature can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations of Americans.” In interpreting this law, the U.S. Supreme Court established some “action-forcing” procedures that (1) require that agencies take a “hard look” at environmental consequences of their actions, and (2) provide for the broad dissemination of relevant environmental information
These “hard looks” often take the shape of “Environmental Impact Studies” (“EIS”). Under Section 4332(2), an EIS is required for any “major federal actions significantly affecting the quality of the human environment.” The inverse implication of this statute is obvious: an EIS is not required for every action that will affect the environment, but only those that significantly affect it.
How is that determination made? Under 40 C.F.R. 1501, an agency can conduct a more preliminary “Environmental Assessment” (“EA”) to assess the extent of the affect. If the agency’s EA determines that the action will not significantly affect the environment, they will issue a “finding of no significant impact” or “FONSI” (yes, that is the real acronym that both this brief and courts more broadly use). Furthermore, courts have allowed agencies to issue a “mitigated FONSI” which is a finding that although the action itself would have a significant affect on the environment, the mitigating efforts listed in the FONSI bring that level of affect down below the “significant” threshold that would trigger the need for an EIS. Once either a FONSI or a mitigated FONSI is produced, the agency can then close the book on the environmental aspect of its licensing procedure and continue with its decision-making process more broadly, such as deciding whether to issue SpaceX a launch license.
Starship’s Mitigated FONSI
The FAA had already completed an EIS many years ago for the launch of the Falcon rocket before issuing the Part 450 license to SpaceX for that vehicle. Although the FAA’s Chief of Staff for the Office of Commercial Space Transportation initially stated that the FAA planned to conduct a new EIS for Starship, the agency changed its mind along the way and on June 13, 2022, the FAA released both its EA and its mitigated FONSI regarding the Starship/Super Heavy Launch Vehicle Program, declining to conduct a new EIS. Specifically, this mitigated FONSI contains approximately 70 mitigating actions that SpaceX promised to take in order to bring the impact down below the “significant affect” level that would trigger an EIS.
While plaintiffs in the lawsuit take issue with some of these, regardless, the EA and mitigated FONSI paved the way for the FAA to issue Starship a Part 450 Launch License on April 14, 2023, and that license went up in smoke just six days later.
Plaintiff’s Claim and Request of the Court
The plaintiffs’ argument boils down to one main point: 1) the FAA failed to fully consider and address the impacts of Starship through an EIS, and this failure is a violation of NEPA.
The plaintiffs point out that the mitigating factors either have no explanation with them that connect them to a decrease in environmental affect, or they are wholly pointless. For example, the plaintiffs complain that one of the mitigating factors is that the lights surrounding the launch area be turned off when not needed for launch/preparation operations, while elsewhere in the report it points out that lights are in fact needed 24/7. They also claim that some of the “mitigating actions” are simply required actions by other federal laws such as the Clean Water Act, inserted into the FAA application as if they were done on SpaceX’s own accord. Because of these inadequate mitigating factors, the plaintiffs believe that skipping an EIS was unwarranted, and doing so was in violation of NEPA.
To be fair, the FAA has not yet filed a response, and SpaceX has just filed a “Motion to Intervene,” asking the court to allow it in the lawsuit as a co-defendant with the FAA. Both parties will likely point out some flaws in the plaintiffs’ arguments, and their filings should be looked at with just as much analysis as the complaint.
As for relief, or what the plaintiffs want, they have asked the court to declare the EA/FONSI for Starship invalid, and to vacate and remand the FAA’s decision to issue Starship a launch license.
Conclusion
While this litigation will undoubtedly drag on for several months, should the plaintiffs succeed, it will mean a large timeline setback for SpaceX and the commercial space industry at large, as the FAA will have to start from scratch in getting Starship a new license. All the way back to its environmental assessment, to an environmental impact study (should it determine it needs one), to the Part 450 Launch License more broadly, Starship could be looking at months if not years of more regulatory slog should they go back to square one. As such, this will be a lawsuit worth watching.