2010: Space Law in the sunshine state.

• Author: Ravich, Timothy M.

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This article endeavors to increase a general awareness about space law and to highlight the key laws governing private sector spaceflight in Florida. Great efforts are made by elected officials and other stakeholders to promote the state as a unique geo-political gateway to the Caribbean and Latin and South America. At least an equal amount of energy should be dedicated to the refinement of a legal regime that stimulates private aerospace activity in Florida given the state's global lead in aerospace operations historically, the economic and societal value of space exploration generally, and the scheduled retirement of the space shuttle fleet imminently.

Outer space travel exploration today is reminiscent of the period following the Wright Brothers' historic first flight of a powered, heavier-than-air airplane in 1903. Only 11 years later, the first scheduled airline passenger flight in the United States departed--an 18-mile, 23-minute, one-passenger journey between Tampa and St. Petersburg for $5 one-way. Today, Miami, Ft. Lauderdale, Jacksonville, Orlando, and Tampa, among other locations around the state, are muscular staging areas for state-of-the-art cargo and commercial airplanes to quickly, routinely, and safely transit millions of passengers and tons of goods over domestic, transcontinental, and international routes for mere dollars. Florida again is uniquely positioned to stage the next mode of human travel and to lead an emerging space travel and tourism industry just as it facilitated modern commercial aviation. Despite these opportunities, however, space law is largely a foreign topic for many Floridians.

Practitioners unfamiliar with space law may dismiss the subject matter as a species of science fiction, a fantastical, imaginative, and precedentless topic that exists outside the sphere of regular business and legal discourse. Among nonlawyers, too, there is scant first-hand knowledge about outer space as fewer than 500 humans have traveled there. Despite that fact, space law is a substantive area of the law that consists of a discrete set of international treaties, (1) resolutions, (2) statutes, (3) regulations, (4) and court opinions that address aerospace activities, among other contexts, in terms of contract, (5) tort, (6) property, (7) patent, (8) and even tax law. (9)

Space law is and should be particularly important for Floridians. Not only has Florida served as the originating point for major space operations dating back to the 1950s, but the recent enactment of new laws in Florida and elsewhere, together with the emergence of a space tourism industry, construction and development of local "space ports," (10) and evolution of a burgeoning cadre of private aerospace entrepreneurs, means that space law has real gravity and presents serious economic opportunities and challenges for Floridians and their lawmakers.

Existing National Policy: Lost in Space

America's current space policy is adrift. (11) The space shuttle fleet that has flown since 1981 is scheduled to retire in 2010, creating an operational "gap" that will leave the country that won the "space race" without an independent means of human spaceflight until completion of the next generation of rockets, at earliest, in approximately 2015. Thousands of residents of Florida's "Space Coast" who contribute to the aerospace industry are losing jobs as a direct result. (12) Meanwhile, putting aside the suspicious outer space programs of North Korea and Iran, other nations, including Brazil, China, and India, together with heavily subsidized private competitors abroad, are fast-developing as viable, intensively competitive, cost-saving alternatives to aerospace assets in Florida, particularly in terms of human capital and expertise in the "STEM" areas of science, technology, engineering, and math.

True, in 2004, President Bush proposed a "Vision for Space Exploration" involving a return to the Moon and to Mars and worlds beyond. The federal government proposed the "Constellation" program and production of the Ares and Orion rockets and crew launch vehicles toward those destinations. Not only have those programs been put on hold in the current economic climate, but "a big lesson of the race to the Moon was that it was a dead end" (13) in any event. Moreover, a "Review of U.S. Human Space Flight Plans Committee" convened by President Barak Obama in late 2009 concluded that, given current budgetary constraints, the United States space program is on an "unsustainable trajectory" and will not be able to engage in human exploration beyond low earth orbit for the foreseeable future. (14)

The horizon for human spaceflight should be brighter, and national space policy and Florida's aerospace sector should have a more robust and less cosmetic mission than revisiting the Moon. The commercialization of space is promising in this respect. Just as the privatization of airlines vitalized and democratized travel and catalyzed modern globalism, so, too, might private enterprise and market impulses resuscitate a space policy that is anchored down by Cold War philosophies.

Space Exploration or Exploitation? The Role of Private Enterprise

In October 1957, at the threshold of the Cold War with the United States, the Soviet Union shocked the West by launching the first artificial satellite, Sputnik. In doing so, U.S.S.R. Premier Nikita Khrushchev fueled his inflammatory rhetoric announced in 1956 ("We will bury you") and triggered a "space race" with the United States. Sputnik "wasn't about the peaceful uses of outer space. It was a matter of ballistic-missile throw weights and the strange nuclear-weapons game of deterrence. In 1957, if you could launch a satellite into orbit, you at least raised the question of whether you could use a missile to deliver an atomic bomb." (15) Unmistakably, space exploration began as an exclusively military and foreign policy competition between two sovereign superpowers, pitting Western capitalism against Soviet Marxism. (16)

Soon after the United States countered Sputnik by launching its own rocket, Explorer I, in January 1958, the United Nations General Assembly created a permanent Committee on the Peaceful Uses of Outer Space (COPUOS). (17) As a matter of law, too, the United States developed a federal statutory framework to administer space operations, namely the National Aeronautics and Space Act of 1958, 42 U.S.C. [section][section]2451-2477 (1958). As a precursor to the space treaties and conventions codified by the United Nations from the late 1950s to the early 1970s, (18) Congress expressed a national policy "that activities in space should be devoted to peaceful purposes for the benefit of all mankind." (19)

Significantly, Congress also promoted the exploitation--not merely the exploration--of outer space, stating that "the general welfare of the United States requires that the National Aeronautics and Space Administration ... seek and encourage, to the maximum extent possible, the fullest commercial use of space." (20) To that end, federal law today identifies bioengineering research and development as an objective of national space operations, funds a cash prize program to stimulate innovation in basic and applied research and technology, and establishes the space shuttle system for government and commercial space missions. (21)

Retirement of the Space Shuttle Program

At the dawn of the "space age," in 1961, President John F. Kennedy called upon Congress and the country to send an American to the Moon and back before the end of the decade. (22) To implement this national goal, officials of the National Aeronautics and Space Administration (NASA) focused on Florida as a lunar launch site and selected Cape Canaveral, an Air Force...