Don't Mind the Gap: Practical and Ethical Consequences of Domestic Planetary Protection Regulations

• Author: Kane Yutaka Tenorio
• Position: J.D., Georgetown University Law Center (expected May 2023); B.A., University of California Santa Barbara (2018)
• Pages: 1151-1168

Don’t Mind the Gap: Practical and Ethical

Consequences of Domestic Planetary Protection

Regulations

KANE YUTAKA TENORIO*

INTRODUCTION

Planetary protection impacts every human being on the planet. Yet, this

practice is often left out of conversations regarding the development of com-

mercial space regulations. While government-affiliated missions operate

under updated planetary protection policies, domestic regulations governing

corporations and non-governmental organizations have struggled to keep up

with the growing private sector. The current “regulatory gap” guarantees that

the United States is unable to fulfill its international obligations under the

Outer Space Treaty (OST) and highlights limitations in the Federal Aviation

Administration (FAA) licensing framework. While different initiatives may

signal an eventual end to the problem, no long-term solutions to “fill” the cur-

rent regulatory gap are being meaningfully undertaken.

Closing the regulatory gap also aids practitioners in ethically counseling

clients about disclosure of planetary protection concerns. From navigating

the FAA’s licensing process to exigency scenarios, clients in the commercial

space industry would benefit from regulations prohibiting harmful contami-

nation of the Earth and other celestial bodies. This Note aims to give practi-

tioners guidance in the meantime by conveying a simple message: “don’t

mind the gap” — abide by the Model Rules of Professional Conduct (Model

Rules) despite regulatory limitations. This guidance encourages attorneys to

exercise their conscience and discretion should they become aware of plane-

tary protection concerns.

Part I of this Note gives background on planetary protection and the domestic

commercial space industry. Part II explains the current regulatory framework

governing the industry and the domestic regulatory gap. Part III surveys proposed

solutions to the regulatory gap. Part IV imparts advice to practitioners, exploring

two scenarios where they may confront planetary protection concerns and exam-

ining possible grounds for discipline under the Model Rules.

* J.D., Georgetown University Law Center (expected May 2023); B.A., University of California Santa

Barbara (2018). © 2022, Kane Yutaka Tenorio. This note would not be possible without the assistance of

Georgetown University Law Professors Caryn Schenewerk, Stephen Mirmina, David Koplow and Philip

Schrag.

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I. PLANETARY PROTECTION AND THE COMMERCIAL SPACE INDUSTRY

“Planetary [p]rotection is the practice of protecting solar system bodies from

contamination by [life on Earth] and protecting Earth from possible life forms

that may be returned from other solar system bodies.”

1

Nat’l Aeronautics & Space Admin., Planetary Protection, https://sma.nasa.gov/sma-disciplines/planetary-

protection [perma.cc/2B5J-HN2U] (last visited Dec. 18, 2021).

The United States has an

international obligation to prevent biological contamination of the Earth or other

celestial bodies, otherwise referred to as forward and backward contamination.

2

Ker Than, How do we protect planets from biological cross-contamination?, STANFORD ENG’G (May 11,

2020), https://engineering.stanford.edu/magazine/article/how-do-we-protect-planets-biological-cross-contamination

[perma.cc/3SFU-R2TK].

While these principles are not often talked about, the dangers of forward and

backward contamination have existential consequences for both the future of

space exploration and life on Earth.

3

Forward contamination refers to an entity

originating from Earth contaminating the Moon or another celestial body.

4

The

introduction of terrestrial material into extraterrestrial environments can hinder

the accuracy of research obtained from space exploration.

5

Even more troubling

are the consequences of backwards contamination, where an entity originating

from Earth brings material back from space that may have an adverse effect on

the Earth’s environment.

6

In the past two decades, the United States has increasingly moved away from a

centralized, government-directed human space activity model in favor of public

initiatives promoting the private space industry.

7

See Mark Weinzierl and Mehak Sarang, The Commercial Space Age Is Here, HARV. BUS. REV. DIGITAL

ARCHIVES (Feb. 12, 2021), https://hbr.org/2021/02/the-commercial-space-age-is-here [perma.cc/AR3L-

KQAS].

Coupled with technological

advances such as the lowered cost of launches, this shift has contributed to the

industry’s substantial growth during the past five years.

8

See Alexander Salter, Space Is No Longer Government’s Exclusive Domain, WALL ST. J. (Oct 19, 2021),

https://www.wsj.com/articles/outer-space-government-business-shatner-property-rights-exploration-11634596203

[perma.cc/57N8-J2NA].

As of the second quarter

of 2020, the global space economy’s valuation totaled $447 billion with commer-

cial space products and services making up approximately 80 percent of that fig-

ure.

9

Space Foundation, Global Space Economy Rose to $447B in 2020, Continuing Five-Year Growth, https://

www.spacefoundation.org/2021/07/15/global-space-economy-rose-to-447b-in-2020-continuing-five-year-growth/

[perma.cc/8KFP-9FSK] (last visited Dec. 18, 2021).

This shift in U.S. policy has also led commercial space companies to

diversify the services and products they offer to governments and private custom-

ers. From space tourism to private space research and exploration, private busi-

nesses wishing to occupy the field have not only increasingly partnered with

1.

2.

3. See Victoria Sutton, Planetary Protection and Regulating Human Health: A Risk that is Not Zero, 19

HOUS. J. HEALTH L. & POLICY 71, 77-78 (2019).

4. Id. at 82.

5. NAT’L SPACE COUNCIL, NAT’L STRATEGY FOR PLANETARY PROTECTION 2 (Dec. 2020).

6. Id.

7.

8.

9.

1152 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:1151