My colleague Jenn Lawrence and I have been working on various space-related matters. In the course of our discussions we got to talking about this case about the legal regime for managing satellite orbits that might encroach on others in the context of a recent case. Jenn has jotted down some notes on where such a case might go in the UK context and where things may go in due course. I have made some contributions along the way.
The Viasat case
The Earth’s orbit is increasingly crowded with satellites. This gives rise to questions concerning how to navigate the inevitable territorial disputes between satellite operators. For example, if one operator believes that another operator’s satellites are encroaching on its own satellites’ space, does it have a legal remedy?
This issue recently came before the U.S. Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) in Viasat.[1] The background to that case can be summarised as follows.[2]
Space Exploration Holdings, LLC (which goes by “SpaceX”) maintains a constellation of thousands of communication satellites in low Earth orbit (“LEO”). Typically, communication satellites circle Earth in a geostationary orbit (“GSO”), moving at the same speed as the Earth’s rotation, so they appear fixed in the sky. A single GSO satellite has a continuous sight line to users within its coverage area – and thus can provide them with continuous service. SpaceX’s satellites, by contrast, move at lower altitudes in a non-geostationary orbit in LEO. The lower altitude reduces transmission latency, making SpaceX’s satellites better suited to provide high-speed services. But, these satellites do not synchronise with the Earth’s spin, so a single satellite cannot maintain a sight line with any given user. SpaceX solved this problem by deploying multiple satellites that move and communicate as a constellation. When one moves out of view of a user’s antenna, it transfers the signal to the next satellite in line.
SpaceX sought approval from the Federal Communications Commission (the “FCC”) to deploy its satellites at an even lower altitude to improve service quality. The FCC approved its request. This triggered two of SpaceX’s competitors (DISH Network Corporation and Viasat, Inc.) and an environmental research and advocacy organisation (the Balance Group) to appeal the FCC’s decision – first, to the FCC itself, and second, when that failed, to the D.C. Circuit.
DISH argued, before the D.C. Circuit, that the proposed changes would interfere with its GSO satellite television service. It alleged primarily that the FCC’s decision had violated the Administrative Procedure Act (the “APA”) and the Communications Act. The D.C. Circuit dismissed DISH’s arguments on the merits.
Viasat and the Balance Group argued that the FCC had violated the National Environmental Policy Act (the “NEPA”) by “allowing SpaceX to [deploy its satellites at lower altitude] without first preparing an environmental assessment”. The D.C. Circuit noted that, in order to bring a case in U.S. federal court, a party must establish standing by showing that it has suffered an injury that is “actual, imminent or certainly impending” (i.e. a “speculative possibility of future injury” does not suffice). Further, it noted that to pursue NEPA claims under the APA, a party must show that its injury is “to the interests of the sort protected by NEPA”. It ultimately dismissed both Viasat and the Balance Group’s arguments before reaching the merits of their claims on the ground that neither party met both requirements.
Thought experiment: what would happen in the U.K.?
Viasat is, of course a U.S. case. However, the issues to which it gives rise apply more broadly. It is not difficult to envisage a comparable set of facts arising in the U.K. in the context of the new domestic space regime.[3] To propose a thought experiment: say Company A (akin to SpaceX in Viasat) operates satellites from the U.K. at a certain altitude above Earth and wishes to move them to a lower altitude. However, Company B is concerned that this will negatively affect its own satellites operated from the U.K. and wishes to prevent Company A from doing so. Does Company B have a legal remedy?
The U.K.’s space regime is in its infancy, and challenges of this sort are yet to come before the courts. However, to entertain the thought experiment for a moment longer, we might consider possible legal avenues available to Company B.
The statutory licensing framework
Turning, first, to the statutory licensing framework.
In July 2021, the Civil Aviation Authority (the “CAA”) became the U.K.’s space regulator. The CAA licences space companies and their activities under both the Outer Space Act 1986 (the “OSA”) and the Space Industry Act 2018 (the “SIA”). The OSA governs space activities carried out by U.K. entities overseas. The SIA (and the Regulations and Rules made thereunder) governs space activities carried out in the U.K. It is, therefore, the latter with which our thought experiment is concerned.
The SIA imposes various duties on the CAA. These include the following.
- Under section 2(1) of the SIA, the CAA must exercise its functions regarding spaceflight activities[4] to secure public safety.
- In exercising its functions, the CAA must take into account the factors set out in section 2(2) of the SIA, which include: (a) the interests of the persons carried by spacecraft or carrier aircraft; (b) the requirements of persons carrying out spaceflight activities; (c) the interests of any other persons about the use of land, sea and airspace; (d) the requirements of persons with interests in property carried by spacecraft; (e) any environmental objectives set by the Secretary of State; (f) the interests of national security; (g) any international obligations of the U.K.; and (h) any space debris mitigation guidelines issued by an international organisation in which the government of the U.K. is represented.
- Under section 2(3) of the SIA, if there is a conflict in applying the subsection (2) provisions, the CAA must apply them in whatever way it thinks reasonable.
Sections 8 to 15 of the SIA empower the CAA to grant operator licences authorising the licensees to carry out any spaceflight activities specified, subject to such conditions the CAA considers appropriate. When a condition is imposed, it is an offence for a licensee to fail to comply with that condition. Under section 15(3) of the SIA, the CAA is empowered to vary a licence, inter alia, with the licensee’s consent.
Turning back to our thought experiment: Company A would have a licence from the CAA, which would likely impose obligations concerning the altitude(s) at which it was permitted to fly its satellites. If Company A wished to vary its licence, it could ask the CAA to do so (which the CAA could then do, following a mandatory consultation with the Secretary of State). In making that decision, the CAA would be required to take into account the factor set out in section 2(2)(c) of the SIA – namely, “the interests of any other persons in relation to the use of land, sea and airspace” which would include the interests of Company B. However, if the CAA was still minded to grant Company A’s request, what could Company B do about it?
Very little, it would appear. Under section 3 of Schedule 10 to the SIA, an appeal against a decision of the CAA or Secretary of State to vary, or refuse to vary, a licence may be brought “only by the holder of the licence” – meaning only by Company A. There is no remedy in the statute for Company B. Interestingly, this differs from the position under the Civil Aviation Act 2012 (“CAA12”), which regulates operators of dominant airports (such as Heathrow). Section 25(2) of the CAA12 allows an appeal against a decision of the CAA to modify a licence condition to be brought by either “the holder of the licence” or “a provider of air transport services whose interests are materially affected by the decision”.
It is unclear why the right to appeal under the SIA was not drafted in similar terms. At a high level, Parliament appears to have considered judicial review to be a sufficient remedy for third party non-licence-holders affected by licence variations by the CAA under the SIA.
Judicial review
We move on, then, to judicial review. In order to bring an application for judicial review against the CAA’s decision to allow Company A to lower its satellites, Company B would need to demonstrate “sufficient interest” in the matter to which the judicial review related.[5] The courts have avoided defining exactly what amounts to a sufficient interest. However, they have tended to interpret the concept flexibly having regard to the nature of the case. Flexibly does not always, though, mean broadly. Ultimately, whether Company B had standing would depend on the particular facts of the case.
It is possible to imagine a situation where the CAA’s decision to allow Company A to fly its satellites at a lower altitude would directly impact Company B in a demonstrable manner. Notably, this wasn’t the case in Viasat, where Viasat had argued that it faced imminent injury on the ground that lowering SpaceX’s satellites could potentially cause an indirect collision with its own satellites. According to Viasat, first, one of SpaceX’s satellites could collide with a piece of space debris, thereby creating more space debris and, in the process, increasing the chance of a collision with one of Viasat’s satellites.[6] The D.C. Circuit found Viasat’s theory of injury “much too speculative”. It is possible that a U.K. court would find the same.
In any event, it is essential to bear in mind that standing is only the first hurdle. Even if standing were established, Company B would need to establish that the CAA acted unlawfully in deciding to vary Company A’s licence on traditional public law grounds. It is impossible to elaborate further on the likely success of any such arguments in the abstract.
Final thoughts: managing future space relationships
To sum up the outcome of our thought experiment, it is unclear whether Company B would have a legal remedy against the CAA and/or Company A in the U.K. The statutory right to appeal in the SIA would not assist Company B. However, Company B might be able to bring a successful claim in judicial review against the CAA if it could establish standing. The answer would ultimately depend on the specific facts of the case.
This thought experiment has proceeded on the assumption that both Companies A and B were operating satellites from the U.K. But what if we were to turn the lens outwards? What if Company A was based in the E.U.? Or what if Company A acted as agent of the European Space Agency – an inter-governmental organisation of which the U.K. is a member state? It is an artefact of the history of space exploration that these matters that will have a greater and greater international component are still matters for national regulation. And the underlying substantive issues are likely to arise again in real disputes. Given the rate at which Earth’s orbit continues to grow more crowded and commercialised, it is likely that real legal solutions to this sort of issue will have to be found.
[1] Viasat, Inc. v. Federal Communications Commission, 47 F.4th 769 (D.C. Cir. 2022).
[2] See summary in case.
[3] For which see https://www.gov.uk/guidance/spaceflight-legislation-and-guidance.
[4] Broadly defined in section 1(4) SIA. Insofar as our thought experiment is concerned, they include “operating a space object”.
[5] Section 31(3), Senior Courts Act 1981.
[6] This theory appears to have been based on the Kessler Syndrome – recently defined in the European Space Agency’s 2022 Space Environmentreport as “the situation in which the density of objects in orbit is high enough that collisions between objects and debris create a cascade effect, each crash generating debris that then increases the likelihood of further collisions”. https://www.esa.int/Space_Safety/Space_Debris/ESA_s_Space_Environment_Report_2022.