Is the US Leasing Out the Moon to Corporations? We Asked a Space Lawyer

It’s time to figure out how to handle commercial space expansion.

Feb 4 2015, 7:50pm

​1984 moon base concept with inflatable space habitat. Image: NASA/Dennis M. Davidson.

​Yesterday, news broke that the Fe​deral Aviation Administration (FAA) wrote a letter to the private company Bigelow Aerospace about setting up shop on the Moon. A flurry of headlines about the FAA auctioning off lunar territory ensued, but despite the uproar, this development is nowhere near so salacious.

According to Joanne Gabrynowicz, a prominent space lawyer and professor emerita at the University of Mississippi, the FAA is not making some kind of impulsive, extraterrestrial land grab, but rather initiating a discussion about the inevitability of commercial development beyond Earth.

"It sounds like they are catalyzing a conversation, because right now, there are so many unanswered questions for a company going on the Moon," Gabrynowicz told me over the phone.

"There's a lot of risks, because there's a lot of open questions about the legality of conducting business on the Moon," she continued. "It's kind of like gently throwing down the gauntlet, and letting the rest of the space community and the rest of the world know that we may have to make this decision some time in the future."

Indeed, George Nield, the associate administrator for the FAA's Office of Commercial Transportation and the author of the FAA letter, immediately clarified this point in the Reuters article that broke the story.

"We recognize the private sector's need to protect its assets and personnel on the moon or on other celestial bodies"

"We didn't give (Bigelow Aerospace) a license to land on the moon," he said. "We're talking about a payload review that would potentially be part of a future launch license request. But it served a purpose of documenting a serious proposal for a US company to engage in this activity that has high-level policy implications."

Bigelow's inflatable space habitats. Image: NASA/Bill Ingalls.

"We recognize the private sector's need to protect its assets and personnel on the moon or on other celestial bodies," he added.

In other words, the FAA is preparing the space community for a new milestone: the first commercial launch license request that includes a payload intended for establishing lunar facilities.

This shouldn't come as a particular surprise, considering that Bigelow has been open about its plan to set up inflatable structures on the Moon for years, and will even be testing its designs on the International Space Station later in 2015. But it does suggest that after decades of false starts, the age of Moon-based business is finally nigh.

"I've been in the space law business for 30 years," Gabrynowicz told me. "What we have now, for the first time, are companies that have credible leadership teams who have good track records in other businesses. We have some real credible contenders for the first time."

This new level of sophistication necessitates a corresponding legal framework that stipulates which entities can claim ownership of territories, or extracted resources. Other territories that are considered "global commons," such as the seabed or Antarctica, are already subject to treaties ensuring international access and regulating industrial activity. But these kinks have yet to be worked out when it comes to outer space.

Fortunately, space lawyers and other aerospace professionals have plenty of experience diving into uncharted legal waters, so there are already some speculative models for how the discussion might evolve over the coming years. Gabrynowicz gave the example of managing orbital debris, a process with which she was deeply involved.

"We had to start setting some guidelines in place so that we can start to address the debris problem in space," she said. "It started out with one small group of countries who had a reason to do this, and had the knowledge and expertise to develop a set of guidelines."

These initial recommendations were eventually introduced to the United Nations where they were modified further, and ultimately endorsed by the General Assembly in 2008. "That's one way it can happen," Gabrynowicz told me. "Another way it can happen is that it can be introduced as an issue into the United Nations from the beginning." 

She didn't expect Bigelow's intention to set up lunar facilities to take that route, though. "I think there will be a need to get some traction on the subject first," she said.

The International Space Station is legally akin to an embassy. Image: NASA.

Another potential model for the conversation sparked by the FAA's letter is the meticulously well-considered legal framework behind the International Space Station. "I think the space station agreement doesn't get near as much press as it deserves to get," said Gabrynowicz. "If we wanted to have some kind of international facility on the lunar surface, we could use the space station agreement as a precedent."

No matter what direction the discussion takes over the coming decades, the pertinent point at the moment is that the FAA is not parceling out Moon turf to businesses with abandon. It is, however, suggesting that the global aerospace community must weigh in on how to proceed with the next giant leap in spaceflight—commercial expansion into the off-Earth frontier.