On Who Should Pay When Orbital Debris “Trickles-Down” in a Tragedy of the Low Earth Orbit Commons

Abstract

In March 2023, NASA released the most rigorous and wide-reaching orbital debris analysis in the space law literature that provides a cost-benefit analysis of removing orbital debris from low Earth orbit (LEO), a region of the Earth’s environment with no environmental regulation. NASA contextualized the motivation in releasing this report as rooted in the exponential growth of the commercial satellite industry, noting that “the number of tracked and untracked debris in LEO is projected to grow . . . even if no new satellites are launched into space, yet launch traffic is likely to increase in the coming decade compared to recent history.” Similarly, in a May 2023 Congressional Budget Office (CBO) report, the CBO argued that the “number of satellites operating in LEO has increased significantly in recent years, driven in large part by commercial [satellite] constellations,” which are networks of identical satellites whose orbits and positions are coordinated to accomplish a given mission, such as providing global broadband internet. Underscoring the dangers of launching thousands of satellites into a finite orbital space with no environmental regulation, SpaceX, who operates the world’s largest constellation, Starlink, reported that from December 2022 to May 2023, Starlink had to perform 25,299 collision avoidance maneuvers in LEO. This number of collision avoidance maneuvers is double the number of maneuvers reported by SpaceX during the previous six-month period, which is alarming to industry experts. Concerning the risks that satellite constellations pose to the sustainability of LEO, experts note that the global space market grew by 8% to $424 billion in 2022 and is expected to be valued at more than $737 billion by 2030, which is a market that will certainly be impacted if LEO is enshrouded in an impenetrable maelstrom of orbital debris moving at speeds seven times faster than a bullet. Cross-referencing the most current orbital debris numbers from the European Space Agency with NASA’s estimated costs of $300 per debris removed with ground-based lasers, and $6,000 per debris removed with space-based lasers, the total estimated cost to remove the 1,036,500 trackable pieces of orbital debris from LEO is from $310 million to $6.2 billion. On the other hand, the cost to remove the estimated 130 million pieces of currently untraceable orbital debris from LEO is from $39 to $780 billion, all of which is a sizeable liability for the United States (U.S.) government to allocate to the U.S. taxpayer. Indeed, under both the Outer Space Treaty and the Proposed ORBITS Act of 2023, which is a bipartisan bill recently unanimously passed by the U.S. Senate, the U.S. taxpayer will be left with footing the bill for remediating the debris left behind by U.S.-authorized commercial satellite operators. Describing the LEO environment as a classical “tragedy of the commons” and drawing from studies conducted by NASA, the Government Accountability Office, the CBO, United Nations, and others, the purpose of this article is to tackle the question of who should pay when orbital debris “trickles down” in a manner that compromises Earth’s satellite-reliant infrastructure and otherwise causes damage to Earth’s environment, persons, and property. This article then recommends specific language to amend Title III of the Communications Act of 1934, which created and charged the Federal Communications Commission (FCC) with regulating commercial satellite systems, to establish a satellite constellation “orbital use fee” (OUF), which the FCC will levy as a requirement for receiving a license to operate in LEO. This OUF will then fund orbital debris remediation projects, related research, and remediation of the environmental impacts of satellite constellations. Given that the U.S. leads the world in the total number of satellites in space per country, and SpaceX will own more satellites than each country in the world combined once it fully deploys Starlink, this article concludes by arguing that the U.S. is uniquely positioned to engage its allies in forging the foundation of customary international space law. First, through passing into law the types of model legislation provided in this article, which will then form the basis of bilateral and multilateral treaty negotiations with both current and potential space-faring nations. This legislative and diplomatic strategy will help to operationalize the 1967 Outer Space Treaty (OST) proclamation establishing space as the “province of all mankind,” and promote its peaceful use and exploration for the “benefit and in the interests of all countries.”