One Small Step Back to the Moon

In early August, Moon Express announced that it had been granted U.S. regulatory approval to send a lunar lander to the moon. This is the first time such permission has been granted to a private company, and it’s a significant step forward in the commercialization of outer space. The ramifications are uncertain and potentially profound because current space policy is complex, ambiguous, and disjointed. If the United States wishes to maintain its lead in space exploration and to allow American innovation to spread among the stars, it will have to rethink its space policy. 

American commercial space companies face several challenges in both the short and the long run. The domestic space industry currently faces numerous regulatory problems — both domestic and international. For example, Moon Express had to develop a customized, one-off license application in order to circumvent existing regulations. No American agency currently has jurisdiction over operations outside Earth’s orbit, yet the United States is bound by the Outer Space Treaty of 1967 to take responsibility for the actions of private American firms working in outer space. With the government on the hook for Moon Express’ activities, the State Department wasn’t about to approve the mission without a special agreement.

This sort of stopgap regulatory “patch” approach is likely to prove inadequate in the future. International tensions over space are increasing and could wind up shutting down ad hoc approaches like the one governing the Moon Express mission. Even if improvisational American space policy passes muster with the United States’ rivals, it still fails to offer the regulatory clarity and certainty needed to encourage continued investment and innovation in space. The voluntary information Moon Express provided to the government was not released, so there is uncertainty about exactly why the mission was allowed to move forward. A more well-defined system is needed.

Another difficulty is that private American space companies face export regulations. Because technology in satellites and launch systems can be used for military purposes, American space companies have to show that such technology will not fall into the wrong hands. However, the rules can be complicated and rigid. American companies report losing business because of the system. In fact, some international competitors pitch prospective customers on the advantages of avoiding the added paperwork and costs of American export control laws.

The government has undertaken reforms, seeking to improve the system to protect both national security and the competitiveness of U.S. companies. However, the rules remain complex — and in some cases have become even more ambiguous. And the system remains divided between two government agencies: The State Department and the Department of Commerce. Both have testified that combining efforts in one agency would benefit national security and business.

These short-run regulatory issues put pressure on American space businesses at a time when international private space competition is heating up. In 2015, the European launch consortium Arianespace outperformed Space Exploration Technologies (SpaceX) in landing commercial contracts. Last month, European regulators allowed Airbus Safran Launchers to acquire a controlling stake in Arianespace, creating a monopoly on both the production and launch of European systems. The goal of both the companies and the European regulators is to enable Europe to compete against nimble American launchers like SpaceX. The move may allow Airbus and Arianespace to continue garnering market share. In an industry where timely launches are vital for licensing requirements and investments, every little advantage helps. And, at a time when more and more countries are developing commercial space capabilities, every little American disadvantage will hurt.

But these are just the near-term hurdles facing American space innovators. Looking further out, the problems become more significant.

Questions about how to handle things such as space tourism, space mining, space debris, the moon economy, criminal justice in space, and conflicts between civil and military space interests will only become more important. The international space treaty’s lack of clarity and the piecemeal regulatory approach of the U.S. government won’t help matters, either. Other issues, such as the lack of rules governing interactions on the moon between private firms and national space agencies, could cause international problems.

The United States needs to craft space policies that promote American competitiveness abroad without sparking conflict with foreign nations. It’s a tough needle to thread, and it’s never too early to starting unraveling and addressing this complex tangle of problems. But it’s especially urgent to start now given that America’s national security space apparatus is set to rely more and more on commercial launch support, and vice versa.  

The flexible approach to licensing Moon Express’s mission shows that when government and business understand each other’s concerns and work cooperatively, commercial space exploration can be pursued effectively. The cooperative relationship between SpaceX, NASA, and other agencies is a good example of how the United States can maintain its edge in space. But in order to make the most of this sort of cooperation with the private sector — to benefit from the innovation and efficiencies companies such as SpaceX can provide — the U.S. government must lay out a clearer framework for navigating the geopolitical dynamics of the new space race.

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