When A Workhorse Falters

Falcon 9 launch A Falcon 9 launched a Turkish communications satellite last Monday, the last successful flight of the rocket before an upper-stage anomaly on a launch Thursday night. (credit: SpaceX) When a workhorse falters by Jeff Foust Monday, July 15, 2024 Bookmark and Share Last week was not shaping up to be a great week for launch vehicles even before Thursday night. On Wednesday, a small Chinese commercial rocket, the Hyperbola-1 from iSpace (not to be confused with Japanese lunar lander developer ispace) failed to reach orbit when the fourth stage of the solid-fuel rocket suffered an unidentified anomaly. It was the fourth failure in seven flights for that rocket. Stéphane Israël, CEO of Arianespace, said his company was “perfectly on track” to conduct the vehicle’s second launch late this year despite the APU problem. That launch came a little more than 24 hours after the long-anticipated debut of Europe’s Ariane 6. The rocket lifted off Tuesday afternoon from French Guiana and initially performed well, reaching orbit and deploying a set of cubesats. ESA even issued a statement declaring the launch a success. “I am privileged to have witnessed this historic moment when Europe's new generation of the Ariane family lifted off—successfully—effectively reinstating European access to space,” said Josef Aschabacher, ESA’s director general, in that statement. However, when that statement was issued the rocket still had one final maneuver to perform: a deorbit burn to put the spacecraft onto a trajectory to burn up over the South Pacific. It would also deploy two small reentry capsules attached to the upper stage, one developed by The Exploration Company, the European startup selected by ESA in May to begin design work on a spacecraft to ferry cargo to and from low Earth orbit. That deorbit burn did not take place. An auxiliary power unit (APU) that pressurizes the liquid oxygen and hydrogen tanks malfunctioned, keeping the Vinci engine from reigniting. The stage was left in low Earth orbit, its reentry capsules still attached. (Ironically, it comes as ESA emphasizes a “zero-debris” policy intended to prevent the disposal of upper stages in orbit.) Officials played down the incident at a post-launch press conference. Stéphane Israël, CEO of launch services provider Arianespace, said his company was “perfectly on track” to conduct the vehicle’s second launch, and first operational mission, late this year. That mission, the payload for which has not been disclosed, likely will not need the multiple ignitions of the Vinci engine planned for this mission. Other customers, though, such as Amazon’s Project Kuiper, likely will need multiple relights for their satellite deployments. The Chinese launch failure and Ariane 6 upper stage anomaly were overshadowed, though, by what took place Thursday night. A Falcon 9 lifted off from Vandenberg Space Force Base in California on what has become a routine mission for the rocket, carrying 20 Starlink satellites. The first stage performed nominally and landed on a droneship in the Pacific, completing its 19th flight. Those watching the webcast, though, noticed something unusual from the cameras on the second stage as it ascended to orbit: a buildup of ice on parts of the engine. The company didn’t comment on the ice buildup on the webcast and ended it, as usual, after the first stage landed and the second stage completed its initial burn. The second stage was scheduled, about 52 minutes after liftoff, to perform a brief second burn to circularize its orbit, followed by deployment of the Starlink satellites. That time came and went without any updates from the company. Two hours after launch, SpaceX CEO Elon Musk posted on X (formerly Twitter), his social media company. “Upper stage restart to raise perigee resulted in an engine RUD for reasons currently unknown,” he said. “RUD” is an acronym popularized by SpaceX for “rapid unscheduled disassembly,” suggesting the engine exploded. The bigger impact from the failure is not the loss of 20 Starlink satellites but the grounding of the Falcon 9. Exactly what happened to the upper stage is not yet clear. In a statement Friday, SpaceX said there was a leak of liquid oxygen in the second stage, which would explain the ice buildup seen on the webcast. “After a planned relight of the upper stage engine to raise perigee – or the lowest point of orbit – the Merlin Vacuum engine experienced an anomaly and was unable to complete its second burn,” it stated. It added, though, that the stage “survived” that anomaly and was able to deploy the satellites and “passivate” itself, removing sources of energy that could cause an explosion. The low perigee of that transfer orbit, just 135 kilometers, doomed the Starlink satellites. The electric thrusters on those spacecraft, while very efficient, are not strong enough to overcome the high atmospheric drag at that low altitude. Musk said engineers updated software for the thrusters to operate them “at their equivalent of warp 9. Unlike a Star Trek episode, this will probably not work, but it’s worth a shot.” Indeed, the additional thrust was not sufficient, and the satellites did not survive. The bigger impact from the failure is not the loss of 20 Starlink satellites but the grounding of the Falcon 9. While the term “workhorse” is often overused, it is clearly applicable to that vehicle, which large parts of the global space community have used and increasingly relied upon given a lack of capacity elsewhere in the market. The Starlink launch was the 70th this year for the Falcon family, including one flight so far of the Falcon Heavy. Starlink was by far the largest single customer for the vehicle, but so far this year the vehicle launched astronauts and cargo to the International Space Station for NASA, Earth science satellites for NASA and for ESA, Galileo navigation satellites for the European Commission, a lunar lander for Intuitive Machines, communication satellites for several companies, dozens of classified satellites, and a wide range of smallsats on rideshare missions. Among others. Many of those customers came to SpaceX because of a lack of options elsewhere, including their own vehicles. Northrop Grumman used a Falcon 9 to launch a Cygnus cargo spacecraft in January while its own Antares rocket is being upgraded in cooperation with Firefly Aerospace. Ariane 6 delays forced the European Commission to launch Galileo satellites on Falcon (even if it would only refer to the rocket as “the launcher” in public statements about it.) Issues with the smaller Vega C led ESA to launch the EarthCARE mission on a Falcon 9. That reliance means that many customers are affected by even a short-term grounding of the rocket. In the near term, the biggest impact is on NASA. A Falcon 9 was scheduled to launch another Cygnus cargo spacecraft in early August, followed later in the month by the Crew-9 mission. Both are now likely to be delayed A Crew-9 delay in particular has ramifications for ISS operations, since the Crew Dragon spacecraft for Crew-8 will likely have to return no later than September, after six months in space. That would reduce the station’s crew to three, with just one NASA astronaut, Tracy C. Dyson, affecting ISS operations. (This assumes, of course, that Starliner returns in late July or early August, but right now, who knows?) “I have no doubt they will arrive at a cause quickly and ensure the most cost-effective and reliable launch vehicle keeps delivering payload to orbit,” said Isaacman. NASA hasn’t offered any insights into its thinking on ISS operations or other effects of the failure. “NASA receives insight from SpaceX on all items of interest about the Falcon 9 rocket, as part of the agency’s standard fleet following activities,” NASA said in a statement late Friday, adding that SpaceX had included NASA in the investigation. “NASA will provide updates on agency missions including potential schedule impacts, if any, as more information becomes available.” Also on hold is another private astronaut mission, Polaris Dawn. That mission was scheduled to launch as soon as the end of July, launching a four-person crew on a Crew Dragon that would demonstrate, among other things, new EVA suits developed by SpaceX. It is part of the Polaris program of private missions backed by Jared Isaacman, the billionaire who led the Inspiration4 mission in 2021. “I have no doubt they will arrive at a cause quickly and ensure the most cost-effective and reliable launch vehicle keeps delivering payload to orbit,” Isaacman, who will command Polaris Dawn, stated after the Falcon 9 failure. “As for Polaris Dawn, we will fly whenever SpaceX is ready and with complete confidence in the rocket, spaceship and operations.” Many other customers are affected by the failure, including returning customers. The European Commission planned to launch two more Galileo satellites on a Falcon 9 this fall, while ESA’s Hera asteroid mission—a followup to NASA’s DART planetary defense mission to the asteroid Didymos—is scheduled in October. NASA’s Europa Clipper mission is scheduled to launch in a three-week period in October on a Falcon Heavy, whose upper stage is similar to the Falcon 9 upper stage. (That mission, though, has problems of its own involving transistors that may not be as radiation tolerant as expected.) The level of impacts caused by the anomaly will depend on how long the rocket is grounded. The FAA is involved in the investigation and noted in a statement Friday that it will have to approve SpaceX’s report into the investigation and corrective actions before allowing launches to proceed. However, it added that its focus is on “determining that any system, process, or procedure related to the mishap does not affect public safety.” An upper stage malfunction has limited effects on public safety, which could accelerate the approvals it provides. One industry source, speaking on background, said the best-case scenario would be for SpaceX to rapidly track down and correct a minor manufacturing defect with the stage and resume launches in a matter of weeks, starting with Starlink satellites to demonstrate to other customers the vehicle is safe for them. An investigation that drags on for months, though, would be “catastrophic” for much of the industry, that person warned. That’s because there are few options for customers to turn to. Other vehicles are either not flying or have full manifests for years to come. Even as vehicles like Ariane 6, H3, Vulcan Centaur and (soon) New Glenn start flying, they have large backlogs of customers to fly and little ability to squeeze new customers in. A situation where the malfunction of a single vehicle can disrupt plans by many companies and agencies, with little recourse, is not sustainable for the industry for the long term. Last month, ULA announced it would fly an inert payload on its second Vulcan launch in September because of delays in the final testing of Sierra Space’s Dream Chaser spacecraft. ULA wants to launch by September to secure certification by the Space Force for national security launches scheduled before the end of the year. ULA CEO Tory Bruno, posting on social media Sunday, ruled out flying a customer payload on that Cert-2 mission instead of the mass simulator. “We have a high priority national security launch directly after Cert-2 that must be preceded by Cert-2, and the USG’s [US government’s] evaluation of the Cert-2 data. So, it’s not worth risking a potential delay in either integration or the payload being late,” he said. Even if quickly resolved, the failure shows the relative brittleness of space access today. A situation where the malfunction of a single vehicle can disrupt plans by many companies and agencies, with little recourse, is not sustainable for the industry for the long term. A vibrant industry needs multiple ways of getting to space, each with its own specific value propositions—low cost, high performance, etc.—but with enough overlap to provide for competition and alternatives. Until then, the growth of the space economy will remain limited. Jeff Foust (jeff@thespacereview.com) is the editor and publisher of The Space Review, and a senior staff writer with SpaceNews. He also operates the Spacetoday.net web site. Views and opinions expressed in this article are those of the author alone.

Special Guests Discuss HBO Documentary WILD WILD SPACE

The Supreme Court Ruling Striking Down Chevron And Its Impact OnOrbital Debris.

Supreme Court The Supreme Court ruling striking down “Chevron Deference” could have implications for regulation of commercial space activities. (credit: Joe Ravi, CC-BY-SA 3.0) Taking the thumb off the scale: Chevron Deference, its repeal, and the effect on regulation of orbital debris by Michael Listner Monday, July 15, 2024 Bookmark and Share The US Supreme Court issued a seminal decision on the power of federal agencies to regulate in Loper Bright Enterprises v. Raimondo on June 28, 2024.[1] Loper challenged a regulation by the National Oceanographic and Atmospheric Administration that mandated fishers to pay for at-sea monitoring programs via the Magnuson-Stevens Act even though the act is silent on the matter. Loper also challenged whether the holding in Chevron v. Natural Resources Defense Council creates an ambiguity where a statute creates a requirement where the court under the Administrative Procedures Act (APA) must defer to an agency’s interpretation of the statute. The Court overruled Chevron when it held: “The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.”[2] This essay will briefly discuss the APA, concisely explain the Chevron Deference and elaborate on how the Chevron Deference might have figured into the issuance of regulations relating to orbital debris by two Outer Space Treaty Article VI agencies and how Chevron’s demise might affect those regulations. The Administrative Procedures Act The Administrative Procedures Act governs the procedures of administrative law. It also establishes how federal administrative agencies establish regulations and how those regulations are decided. The APA is codified in 5 U.S.C. Subchapter II (§§ 551-559). Federal district courts have subject matter jurisdiction over appeals of administrative decisions under the APA. [3] Final orders like those of the FCC may be directly appealed to US Court of Appeals.[4] The court’s review of administrative actions are de novo and governed by 5 U.S.C. Chapter 7 (§§ 701-706).[5] It is in the context of judicial review under the APA where the Chevron Deference comes into play. The Chevron Deference The holding in Chevron v. Natural Resources Defense Council created a standard of judicial review under the APA that replaces de novo review. Under Chevron, a court defers to the interpretation of the administrative agency instead of its own when it reviews a statute that is ambiguous or silent as to the authority of an administrative agency to implement the statute. In other words, when applied by the court under the APA, the Chevron Deference substitutes the court’s de novo review and defers its judgment to the interpretation of the agency. This makes the agency and not the court the arbiter of the interpretation of the statute and hence the judgment of the agency as to what the law says instead of the court.[6] Non-governmentals may seek to challenge regulations based on ambiguous statutory construction or even silence previously relied upon by agencies. The threshold inquiry is whether the Chevron Deference applies or not and begins with the premise that the implementing agency in question has been given the authority by Congress to act as a surrogate to interpret ambiguity or silence in the statute they are authorized to implement.[7] The key question being whether Congress delegated authority in the statute to the agency to speak with the force of law.[8] The purview of the deference to the agency is broad, and it has been found to apply when an agency is acting within the scope of its statutory jurisdiction and when it is determining the scope and limits of that jurisdiction.[9] Once the court determines the Chevron Deference applies to the statutory interpretation in question, a two-step analysis is applied. Step 1 of the Chevron Deference requires the court to evaluate whether Congress “directly addressed” the precise question at issue and determine if the statute in question is ambiguous or silent.”[10] Step 1 analysis is accomplished using the traditional tools of statutory construction.[11] If the statute is unambiguous, then the court must apply the statute as Congress intended and not defer to the agency’s interpretation.[12] If statute is silent or ambiguous, Step 2 of the Chevron Deference is tripped. Once triggered, Step 2 of the Chevron Deference requires the court to consider whether the agency’s interpretation of the statute is “reasonable.”[13] Under Step 2 analysis, if Congress has given the agency statutory authority to fill in the blanks of an otherwise ambiguous or silent statute, the courts will give “controlling weight” to reasonable interpretations of the statute by an agency. This means the courts do not have authority to perform de novo review and cannot substitute their own interpretation for a statutory interpretation by an agency that is reasonable.[14] This means if an inquiry reaches Step 2 analysis, the agency will have a stacked deck that will allow the agency to prevail in almost every instance. The crux of the Chevron Deference resides in its ability to sideline the judicial branch’s independent interpretation of an ambiguous statute for an interpretation that disproportionately benefits the agency and hobbles judicial independence. The Supreme Court recognized this in Loper noting: “Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. The Framers anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment. Chevron gravely erred in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power—perhaps the occasion on which abdication in favor of the agency is least appropriate.”[15] The overall effect of Loper is that the Court effectively put the weight of statutory construction and interpretation back in the hands of Congress and the judiciary and restored de novo review under the APA.[16] This shift will have substantial impact on all regulatory agencies, and it may have a significant impact on agencies who are Article VI authorizing agencies for non-governmental space activities. The effect of Loper on non-governmental space activities The ripples of Loper and the abolition of the Chevron Deference will be felt throughout administrative agencies, the courts, and Congress. Litigants appealing rulings from administrative agencies based on ambiguous statutes will no longer be disadvantaged by the thumb on the scales afforded by the Chevron Deference. Moreover, non-governmentals may seek to challenge regulations based on ambiguous statutory construction or even silence previously relied upon by agencies. Indeed, two agencies who are Article VI authorizing agencies for non-governmental space activities have taken advantage of the thumb-on-the-scale approach of the Chevron Deference may find challenge by non-governmentals to current and proposed regulations now that Chevron is overturned. The FCC’s assumed authority over orbital debris The Federal Communications Commission is one of the three Article VI authorizing agencies and perhaps the most significant as its authority over radio spectrum makes it a player in any non-governmental space activity.[17] The FCC receives its authority through the Communications Act of 1934 as amended found in 47 U.S.C. Chapter 5 (§§ 151-646). However, Chevron, through the Chevron Deference, has given the FCC latitude to interpret the act beyond the scope of Congress’ specific intent. This is glaringly obvious with the FCC’s assumed authority over orbital debris. When formulating its legal rationale to regulate orbital debris, the FCC was doubtless cognizant that any challenge to its asserted authority would fail if challenged under the APA because of the Chevron Deference. The FCC is the primary Article VI licensing authority for satellites (space stations) whose primary function is to receive and radiate in the electromagnetic spectrum. The FCC exercises its authority in 47 CFR Part 25 of the Code of Federal Regulations. As part of the licensing process, the FCC further assumes authority to regulate orbital debris over the satellites it licenses. The FCC’s authority to regulate orbital debris in 47 CFR § 25.114(14) is not explicitly granted by the Communications Act and is silent on the matter. The FCC reconciles this silence and ambiguity and justifies its authority using 47 U.S.C. § 303(g) of the Communications Act where: “Except as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall— Study new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest;” The FCC exemplifies 47 U.S.C. § 303(g) and asserts its authority over orbital debris in its June 9, 2004, Report and Order: Mitigation of Orbital Debris.[18] The FCC has not only reaffirmed this position for the past 20 years but also used it to promote further regulations for orbital debris, including adopting a five-year disposal requirement in 2022 for inactive space stations in low-earth orbit.[19] When formulating its legal rationale to regulate orbital debris, the FCC was doubtless cognizant that any challenge to its asserted authority would fail if challenged under the APA because of the Chevron Deference. Consider the following line of thinking that may have occurred when the FCC proposed its regulation on orbital debris: A challenge to the FCC’s asserted authority over orbital debris would have led the court to examine as a preliminary matter whether the Chevron Deference applied, i.e. did the Congress intend in 47 U.S.C. § 303(g) for the FCC to speak with the force of law?[20] The court would likely find that was Congress’s intent and the court would be required to apply the Chevron Deference to the statute in place of de novo review. The court would begin its analysis with Step 1 where it would evaluate whether the language of 47 U.S.C. § 303(g) was silent or ambiguous on the issue of orbital debris. The court would certainly find 47 U.S.C. § 303(g) is silent on the issue of orbital debris, which would trigger Step 2. In Step 2, the court would quash its own interpretation of 47 U.S.C. § 303(g) and determine whether the FCC’s interpretation was “reasonable”. The FCC would demonstrate its interpretation of 47 U.S.C. § 303(g) was reasonable and the court would in all probability agree. This would compel the court under Chevron to defer to the FCC’s interpretation of the silence in the statute and rule in the agency’s favor. In summation, the FCC may have considered the Chevron Deference would allow it to prevail in any potential challenge to its interpretation of 47 U.S.C. § 303(g) and thus act as a deterrent, which would discourage non-governmentals from challenging the legality of the FCC’s interpretation of the Communications Act with respect to orbital debris. Even if a challenge was mounted, the FCC certainly concluded that Chevron would permit it to fend off any challenges made through the APA. With Chevron overruled and de novo review restored with the abrogation of the Chevron Deference for reviews under the APA, future orders from the FCC regarding orbital debris and interpretations of 47 U.S.C. § 303(g) could be challenged under the APA with a result not favorable to the FCC’s interpretation of the Communications Act. Furthermore, the restoration of de novo review in APA reviews by Loper will clear the path for the holding in West Virginia v. EPA and the major questions doctrine to be brought to bear, which means a challenge to a future order on orbital debris regulations could strike at the heart of FCC’s interpretation of 47 U.S.C. § 303(g) and the FCC’s claim of on-orbit authority and its regulation of orbital debris. All this presumes a non-governmental operator would risk rocking the boat with the FCC. Still, with Chevron overturned, the legal atmosphere is ripe for a challenge. The question is whether the political risk would justify and support a business case to pursue an action to challenge if not the current regulations in Part 25 relating to orbital debris, then future regulations proposed by the FCC.[21] FAA proposed rule regulating upper stages The Federal Aviation Administration issued a notice of proposed rulemaking (NPRM) on September 26, 2023. The proposed regulation seeks to require non-governmental launch providers who will perform a launch or reentry that will have an altitude greater than 150 kilometers to submit an Orbital Debris Assessment Plan (ODAP), which would include physical evidence, test results, and analyses to demonstrate removal activities prior to each operation.[22] The proposed rule would apply to spent upper stages and other components that are released during launch or reentry, during on-orbit aspects of launch or reentry, or during disposal operations. Any pieces greater than five millimeters in size would be required to be removed from highly used regions within 25 years. However, the FAA does not have explicit authorization as Title 51, Chapter 509 does not mention orbital debris. The FAA faces the prospect that implementing the proposed rule with Title 51, Chapter 509 as is will invite a future challenge via the APA under de novo review that the FAA could lose. The FAA’s authority to “authorize” non-governmental space activities is limited to launch and reentry as Congress has not given the FAA “on-orbit” authority to “continually supervise” non-governmental space activities that occur between launch and reentry. Thus lies the problem with proposed rule: orbital debris is a created between launch and reentry and falls into the category of “continuing supervision” under Article VI of the OST. Title 51, Chapter 509 does not give the FAA on-orbit authority to continually supervise non-governmental space activities, which means it cannot regulate orbital space debris regardless of whether a launch and reentry license is involved. The FAA tries to get around this and cites Title 51, Chapter 509 of the U.S. Code and emphasizes 51 U.S.C. § 50905(b)(2)(B) to try and use the ambiguity within to amplify its authority to license launch and reentries under 51 U.S.C. § 50905: “The Secretary may prescribe — any additional requirement necessary to protect the public health and safety, safety of property, national security interests, and foreign policy interests of the United States;” This assertion of authority is dubious at best, especially since the House Committee on Committee on Science, Space, and Technology and specifically the Subcommittee on Space and Aeronautics is the body that can grant the FAA “on-orbit” authority.[23] It appears the FAA is using 51 U.S.C. § 50905(b)(2)(B) to mimic the FCC’s exercise of “on-orbit-authority” and by extension its authority over orbital debris using 47 U.S.C. § 303(g) of the Communications Act of 1934 as amended. If this is the case, the FAA may be attempting to use 51 U.S.C. § 50905(b)(2)(B) to assert “on-orbit authority” to orbital debris. If successful, the FAA could theoretically use 51 U.S.C. § 50905(b)(2)(B) to expand “on-orbit authority” to other non-governmental space activities. Yet, the proposed application of 51 U.S.C. § 50905(b)(2)(B) to orbital debris and other on-orbit non-governmental activities may be moot considering the decision in Loper. The FAA may have relied on Chevron when formulating the proposed regulation, and like the FCC, may have included in its calculus the deterrent effect of Chevron to discourage a legal challenge via the APA using the Chevron Deference to extend its authority through 51 U.S.C. § 50905(b)(2)(B). The FAA’s consideration of the effect of Chevron may have included modeling a hypothetical future challenge to the FAA’s proposed regulation. Consider, with the Chevron Deference intact a hypothetical challenge would allow the FAA to show the court in an APA challenge that as a preliminary matter Congress intended the FAA to speak to 51 U.S.C. § 50905(b)(2)(B) with the force of law, which means the court would find the Chevron Deference applies.[24] In the hypothetical, the court would move to Step 1 and undoubtedly determine 51 U.S.C. § 50905(b)(2)(B) is silent on the issue of orbital debris. This would trigger Step 2, and the court would be required to set aside de novo review and would hear arguments from the FAA that a reasonable interpretation of 51 U.S.C. § 50905(b)(2)(B) permits the agency to regulate orbital debris and gain de facto on-orbit authority. The court, stripped of de novo review would almost certainly agree the FAA’s interpretation is “reasonable” and Chevron’s thumb on the scale would require the court to rule for the FAA. It is notable that the FAA announced the proposed rule before the Supreme Court heard oral arguments on Loper, but it was doubtless aware that briefing was well underway even though oral arguments were not scheduled on the docket until November 17, 2023. The question is whether the FAA’s decision to publish the proposed regulation in the Federal Register before oral arguments reflects the FAA’s confidence Chevron would not be overturned or it was a gamble that the proposed regulation could be implemented despite the outcome of Loper. With Chevron overturned, the deterrent factor of the Chevron Deference no longer exists. The FAA faces the prospect that implementing the proposed rule with Title 51, Chapter 509 as is will invite a future challenge via the APA under de novo review that the FAA could lose, especially with West Virginia v. EPA as an arrow in the quiver of a future petitioner to invoke the major question doctrine. What remains to be seen is whether the FAA can reconcile the proposed rule without further input from the Committee on Science, Space, and Technology or amendment from Congress, implement the rule despite Loper, and survive de novo review under the APA if it is challenged. Closing thoughts The decision in Loper is in the books and is the supreme law of the land.[25] The defeat of Chevron and the abolition of the Chevron Deference will have wide-ranging impacts on administrative law on all federal agencies and not just the FCC, the FAA, and the future of the regulation of orbital debris. However, those changes will not appear overnight and will take petitioner employing Loper via the APA to give it solid legs. Some will use political arguments to invoke the specter of orbital debris and denigrate the Court’s decision in Loper and this author’s analysis of the FCC’s regulation and the FAA’s proposed regulation as not being sensitive to the issue of orbital debris. To that the author offers the following: If the statutory authority for regulating orbital debris can be granted legislatively for one agency, it can be granted legislatively for others. First, the issue of orbital debris is a logistical problem, not an emotional issue. Thus, it must be addressed logically and in the context of proper regulations promulgated through explicit Congressional authorization. The emotional argument of an impending Kessler Syndrome and the threat to sustainability compels any means necessary to prevent that end will amount to little more than a temporary feel-good fix that will have little long-term benefits and result in little more than positive political optics without contributing to a long-term solution. Proper regulations that have legislative backing and will survive judicial scrutiny will not only start to address the logistical issue of orbital debris but also preserve the means to create regulations for non-governmental space activities moving forward. In that regard, the decisions in Loper and West Virginia are positive steps in that direction. Second, the decision in Loper is not the end of any chance of regulatory authority to address orbital debris. Rather, it is a rebalancing of the separation of powers between the three branches that will permit pragmatic regulation to evolve. With that balance restored through Loper and with the decision of West Virginia to complement that balance, the ball falls back to Congress to legislate and provide the explicit regulatory authority to address orbital debris. While some lament that Congress is slow to act, consider the National Oceanographic and Atmospheric Administration issued a Request for Information regarding its intent to seek guidance or initiate rulemaking for the disposal of spacecraft licensed under NOAA’s Article VI jurisdiction.[26] Unlike the FAA and the FCC, NOAA has explicit legislative authority to require disposal of spacecraft upon termination of operations.[27] If the statutory authority for regulating orbital debris can be granted legislatively for one agency, it can be granted legislatively for others. Finally, as the domestic governance of non-governmental space activities matures the need to implement regulations will become increasingly debated. Think tanks, academia, and NGOs will all play a part in promoting the future of regulation, including its scope and form. That does not diminish the necessity of clear legislative authorization to the agencies tasked to promulgate regulations nor does it diminish the importance of agencies to work within that authorization. Loper and West Virginia have restored the responsibility of both Congress and the judiciary in their respective roles as authorizers and umpires of the administrative agencies who will implement future regulations. With all in their proper place, there is a fair chance to get future regulation right and based on national interests instead of political and ideological preferences. This will provide a balanced and effective regulatory environment to promote non-governmental space activities in the years and decades to come. Endnotes Loper Bright Enterprises v. Raimondo, 603 U. S. ____ (2024) (slip). Id. at 5-7. 28 U.S.C. §1331. 47 U.S.C. § 402. 28 U.S.C. § 2342(1). “When a court hears a case “de novo,” it is deciding the issues without reference to any legal conclusion or assumption made by the previous court to hear the case. An appellate court hearing a case “de novo” may refer to the lower court’s record to determine the facts but will rule on the evidence and matters of law without deferring to that court’s findings.” Cornell Law School, Legal Information Institute. “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule.” Marbury v. Madison 5 U.S. 137 (1803). CRS Report R44954, Chevron Deference: A Primer, p. 3, May 18, 2023. (citing Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990) (“A precondition to deference under Chevron is a congressional delegation of administrative authority.”); Envirocare of Utah, Inc. v. Nuclear Regulatory Comm’n, 194 F.3d 72, 79 n.7 (D.C. Cir. 1999) (noting that “when it comes to statutes administered by several different agencies—statutes, that is, like the APA and unlike the standing provision of the Atomic Energy Act—courts do not defer to any one agency’s particular interpretation”). CRS Report R44954, Chevron Deference: A Primer, p. 5, May 18, 2023. CRS Report R44954, Chevron Deference: A Primer, p. 7, May 18, 2023, citing City of Arlington v. FCC, 569 U.S. 290, 295 (2013). CRS Report R44954, Chevron Deference: A Primer, p. 8-9, May 18, 2023, citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). CRS Report R44954, Chevron Deference: A Primer, p. 9, May 18, 2023, citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). CRS Report R44954, Chevron Deference: A Primer, p. 9, May 18, 2023, citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). CRS Report R44954, Chevron Deference: A Primer, p. 12, May 18, 2023, citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). CRS Report R44954, Chevron Deference: A Primer, p. 12, May 18, 2023, citing Young v. Cmty. Nutrition Inst., 476 U.S. 974, 981 (1986). Loper Bright Enterprises v. Raimondo, 603 U. S. ____, pp. 21-22 (2024) (slip). The Court’s ruling in West Virginia v. EPA is complemented by its decision in Loper. West Virginia requires administrative agencies “to point to “‘clear congressional authorization’” when they claim the power to make decisions of vast “‘economic and political significance.” See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, October 10, 1967, art. vi, 18 UST 2410. Mitigation of Orbital Debris, Second Report and Order, 19 FCC Rcd 11575 (2004) (2004 Orbital Debris Order), para. 14. The FCC’s interpretation of 47 U.S.C. § 303(g) grants it “on-orbit authority” and thus “continuing supervision” over non-governmental space activities that it licenses as the primary Article VI authority. See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, October 10, 1967, art. vi, 18 UST 2410. CRS Report R44954, Chevron Deference: A Primer, p. 5, May 18, 2023. Another opportunity to challenge the FCC’s authority over orbital debris lies in the Supreme Court’s decision in West Virginia v. EPA. Theoretically, a non-governmental could file a declaratory judgment posturing that the Communications Act does not grant the FCC authority to regulate orbital debris. This NPRM is likely inspired by a Report required by the 2021 Transportation, Housing, and Urban Development explanatory statement for the Consolidated Appropriations Act of 2021 “the Committee observes that the exponential rise of non-geostationary satellites, particularly those in low earth orbit, poses an increased risk due to reentering debris. Therefore, the Committee directs the FAA to provide a report to the House and Senate Committees on Appropriations within 270 days of enactment of this act assessing how the FAA launch and reentry licensing process can be leveraged to address this risk.” The Report was submitted to Congress on September 22, 2023. Rule VI(b)(4) of the Rules of the Committee on Science, Space, and Technology U.S. House of Representatives For the One Hundred Eighteenth Congress states: “(4) Subcommittee on Space and Aeronautics. Shall have jurisdiction over the following subject matters: all matters relating to astronautical and aeronautical research and development; national space policy, including access to space; sub‐orbital access and applications; National Aeronautics and Space Administration and its contractor and government‐operated labs; space commercialization, including commercial space activities relating to the Department of Transportation and the Department of Commerce; exploration and use of outer space; international space cooperation; the National Space Council; space applications, space communications and related matters; Earth remote sensing policy; civil aviation research, development, and demonstration; research, development, and demonstration programs of the Federal Aviation Administration; space law; other appropriate matters as referred by the Chair; and relevant oversight.” CRS Report R44954, Chevron Deference: A Primer, p. 5, May 18, 2023. “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule.” Marbury v. Madison 5 U.S. 137 (1803). See Title 51 U.S.C. §§ 60101-60162. 51 U.S. Code § 60122(b)(4) - Any license issued pursuant to this subchapter shall specify that the licensee shall comply with all of the requirements of this chapter and shall—upon termination of operations under the license, make disposition of any satellites in space in a manner satisfactory to the President. Michael J. Listner is an attorney and the founder and principal of Space Law & Policy Solutions. He is a subject matter expert and practitioner in outer space law, policy and security and an authority on hybrid warfare and lawfare strategy. He is also the General Counsel (pro tem) and Senior Advisor, of Lesath International. The views expressed here are those of the author in his personal capacity and do not constitute legal advice.

The Signifigance Of Bulgaria Joing The Artemis Accords

Bulgaria signing the Artemis Accords NASA administrator Bill Nelson and Minister of Innovation and Growth for Bulgaria, Milena Stoycheva, as a signing ceremony fot the Artemis Accords in November 2023. (credit: NASA/Keegan Barber) The significance of Bulgaria joining the Artemis Accords by Svetoslav Alexandrov Monday, July 15, 2024 Bookmark and Share In November 2023, Bulgaria signed the Artemis Accords, becoming the 32nd country to do so. In this article I will explain why this was important for us and how it helps us break free from nostalgia’s grip, leaving the ghosts of Interkosmos behind. Bulgarian society is deeply divided and polarized and the differences in the historical narratives plays a huge part in the division. The greatest divide is about how we should treat Russia and its role in our history. In 2019 I wrote an article in which I told the history of Bulgarian efforts to conquer space (see “Bulgarians still dream about space four decades after their first crewed mission”, The Space Review, January 14, 2019.) I’m going to reiterate that Bulgarians, in general, are very proud of their past achievements. It is no wonder that in 2023 Georgi Gospodinov’s Time Shelter became the first book written in Bulgarian to win the International Booker prize: we are so overfocused about our history that we’re not only trying to preserve it, but also recreate it and make shrines so we can escape from the harsh reality of present times. A good example of this is the reaction of many Bulgarians who began grieving when this month the Ukrainian high jumper Yaroslava Mahuchikh broke the women’s high jump world record which was held by our jumper Stefka Kostadinova for 37 years. But why? Why the sadness and anger? It’s not unlike another Bulgarian athlete can’t set another a new world record. But many people reacted like a holy relic was been desecrated. Our significant space achievements have also been sanctified in some way regardless if we’re talking about our only two cosmonauts Georgi Ivanov and Alexander Alexandrov, or the Bulgarian song “Izlel ye Delyo Haydutin,” which is part of the Voyager Golden Records. Unfortunately, the Bulgarian society is deeply divided and polarized and the differences in the historical narratives plays a huge part in the division. The greatest divide is about how we should treat Russia and its role in our history. Now, a brief historical background is needed. Bulgaria was founded in 681 AD and during medieval times two great empires existed: The First Bulgarian Empire and the Second Bulgarian Empire. The second one ceased to exist by the early 15th century after being conquered by the Ottomans. Bulgarians remained under Ottoman rule for almost five centuries until the Russo-Turkish War of 1877–1878, which led to the re-establishment of the Bulgarian state. The following decades were very turbulent with many wars, frequent coups, and changes of governments, but any hopes for democracy evaporated as soon as Bulgaria became USSR-aligned after 1948. The subsequent 45-year period of communism was deeply traumatic, with forced collectivization of land and creation of collective farms, lack of freedom of speech, and political repressions. It was also, however, a period of rapid industrialization as part of the goal of the Communist Party to transform agrarian and rural sites into shining socialist factories. Space exploration also played an important part of the ideology of the ruling class. The revolutions of 1989, which led to the end of the communist rule in Eastern Europe, marked the transition to democracy and market economy. New political parties were formed and they represented the voices of the people. A large percent of the population was generally unhappy with the pro-Soviet orientation and believed that our future will be secured if we join the European Union (EU) and NATO, which eventually happened. For the goal of this manuscript I’ll refer these people as “pro-European” (I consider myself to be part of them). According to a survey conducted by Exacta Research Group in the period December 5–12, 2022, pro-Europeans are about 71% of the population. About 22% do not approve the EU and NATO. These people,which I’ll refer to as “pro-Russian,” believe that the Soviet rule was the best period of Bulgarian history. They’re nostalgic and strongly object the current geopolitical course of our country. Although pro-Russians are a minority, they’re very vocal in the social networks and gradually gain influence. The following paragraphs will be dedicated to how space exploration and its history fits in the narrative of the both groups who use it for their goals. Pro-Russians firmly support the narrative that the fall of communism meant the end of Bulgaria as a space country and NATO, EU, NASA, and the Western world in general do nothing to support us. In April 2023, the first Bulgarian cosmonaut, Georgi Ivanov, was invited to speak for Martin Karbovsky’s YouTube channel. He said, “During the period of socialism we were able to create. Now we no longer create anything.” Pro-Russians are quick to point out that we haven’t had any new cosmonauts since 1988 and, as a proof that Americans do nothing to modernize our aviation infrastructure, constantly remind us that the delivery of eight F-16 airplanes, for which the Bulgarian government paid $1.3 billion back in 2019 to replace the aging MiGs, is being continuously delayed. We, by ourselves, cannot have a space program and launch our own cosmonauts to orbit. We’re too small. Yet we have two cosmonauts. Why do we have two cosmonauts? Because someone else, the Soviets, did it for us. Certain radicals are prone to adopt popular pseudoscientific and misinformed beliefs. A lot of them are convinced that NASA never sent astronauts to the Moon and according to them it is obvious that the American space program lags behind Russia because it is unable to produce its own engines (they’re referring to the fact that the USA bought RD-180 and RD-181 engines for the first stages of American rockets, but those radicals go one step further and claim that the USA doesn’t have any rocket engines and even Elon Musk uses Russian engines for his Falcon rockets.) There’s no doubt that the American readers will be surprised of the extent of the propaganda in the former Eastern bloc countries. Pro-Europeans frequently argue with pro-Russians on the social networks and do some efforts to correct misinformation because they’re less prone to belief in conspiracy theories. Some of them, however, including the popular pro-western journalist Ivo Indzhev, support the idea that Gagarin never flew to space: instead the Vostok spacecraft was launched empty, with animals aboard or there was another phantom cosmonaut who crash-landed or died. But this is more like an occasional knee-jerk reaction to the Apollo hoax theories (you dare deny Armstrong, then I’ll deny your Gagarin.) Conspiracy theories rarely get mentioned amongst the pro-Europeans; rather, they prefer to point out to the current accidents of the Russian space program, like rocket crashes and the recent ISS leaks. As a space enthusiast, I was somewhat disturbed by the joy some people expressed when the Luna-25 mission crashed on the Moon last year, but we have to understand that pro-Europeans have rightfully been disgusted by the Russian attacks on Ukraine, especially on civilian infrastructure like hospitals. That’s why most pro-Europeans share the sentiment that it’s hard to support a Russian project, even if it’s a scientific or engineering one. Unfortunately, I have to say that some pro-Europeans are among the most vocal proponents of the idea that Bulgaria cannot afford to support fundamental research, that taxpayer funding of scientific institutions is socialism and backwards thinking. If there’s one thing that pro-Europeans and pro-Russians will agree upon, it is the transition to market democracy turned out to be harder than many expected and disappointing to all of us. Bulgaria survived two periods of hyperinflation, a lot of sectors we left unreformed, and as today it remains the poorest country in the EU in terms of GDP distribution. Both groups, however, are aware that the USSR is gone, COMECON is gone too, and there’s no going back to the old times. Even pro-Russians admit that we won’t leave NATO and EU; they instead insist to have ties both with the USA and Russia. There’s no political party in our parliament that suggests abandoning capitalism and the revival of communism. But the two groups disagree on why the transition of marked economy led to unsatisfactory results. Cosmonaut Georgi Ivanov isn’t alone in his thinking that we have destroyed everything good that was created during socialism. A lot of pro-Russians share this sentiment: we could have adopted marked economy eventually, but we didn’t have to destroy cooperative farms and we didn’t have to shut down industrial facilities and manufacturing plants. Pro-Europeans strongly disagree, and they provide arguments that those facilities were uncompetitive on the global market and would have to be closed down anyway. Instead, the reason for our poverty is a direct result of the lack of legal and judicial reform and the ineffectiveness of the judicial system is what repels foreign companies from investing in Bulgaria. Pro-Europeans are also right in another critique: during the two periods of hyperinflation a common harmful narrative appeared. It’s that we, as a society, are flawed, we can’t fix us by ourselves so we have to be fixed. This was in a sense a salvation narrative which we’ve heard a lot before many elections. Who’ll fix us? Who’ll save us? And different answers were suggested: the EU, the USA, our king in exile. Many people worldwide are amazed that two decades ago the former king Simeon II, who was banished during communism, returned home and was elected as a prime minister. While the pro-Russians are lamenting that the Interkosmos program is gone, new companies have appeared in Bulgaria that are advancing space exploration. I talked a lot about Bulgarian politics in an article ostensibly about space exploration, and I’ll tell you the reason for it. This is the only way you can understand the logic of pro-Russian space enthusiasts. We, by ourselves, cannot have a space program and launch our own cosmonauts to orbit. We’re too small. Yet we have two cosmonauts. Why do we have two cosmonauts? Because someone else, the Soviets, did it for us. Why did they do it for us, not once, but twice—after all, of all Interkosmos countries, only Bulgaria had two space travelers? Because we were loyal. Why we no longer have cosmonauts? Because the USA won’t do it. Why won’t the USA do it? Because they understand nothing of loyalty and besides, they’re greedy and want money from us. It was not so during the socialism where brotherhood reigned and the Soviets did care about us. They did care about us, but we’ve betrayed them by joining NATO and the EU. The narrative continues: Russians did so much for us. They liberated us from the Ottoman rule and ever since then, we’ve proved to be unfaithful. Of course, this narrative is flawed. Nobody did anything about us for free. In the beginning of the previous century we paid for our freedom to Russia with money equivalent to 32 tons of gold. The same is true about our first cosmonaut. The USSR didn’t send Georgi Ivanov to orbit for free. One of the pioneers of space sciences in Bulgaria, associate professor Doyno Petkov, admitted shortly before his death in 2020 that our country invested 20 millions of levs for the launch of Ivanov. Meanwhile, while the pro-Russians are lamenting that the Interkosmos program is gone, new companies have appeared in Bulgaria that are advancing space exploration. Antarta, for example, has revived the production of Bulgarian space food (in 1979, Bulgaria became the third country in the world after the Soviet Union and the US to produce space food.) And of course, we have EnduroSat, a leading nanosat manufacturer that produced eight satellites in the end of 2023 and is currently pursuing an ambitious goal for 2024 of producing ten satellites monthly. This should be enough to invalidate the argument that our space industry has been in a better position during the communist era. As part of the Interkosmos program we only had two satellites: Interkosmos-Bulgaria-1300 and Meteor-Priroda-2-4, both launched in 1981. One can make an argument that we can’t compare nanosats to multi-ton spacecraft, but nanosats have become quite capable in the recent years and previous efforts never led to serial production. EnduroSat alone makes a lot of us happy: the company is building solar panels for the second Intuitive Machines mission to the Moon, a 16U CubeSat called TOLIMAN to study Alpha Centauri as part of a partnership with the University of Sydney and Breakthrough Initiatives, and the Balkan constellation, the first Bulgarian satellite megaconstellation consisting of more than 120 nanosatellites. But there’s one thing that hasn’t changed: we still don’t have another cosmonaut or astronaut and this is depressing for every space enthusiast, regardless of their geopolitical orientation. Of course, pro-Russians and pro-Europeans have different opinions about how we should send a third Bulgarian to orbit. While pro-Europeans point to private space, pro-Russians would prefer an Interkosmos-like program like the one that led to the launch of the Belarussian flight attendant Marina Vassilevskaya earlier this year aboard the Soyuz MS-25 spacecraft. There’s no need to point out that this is just an impossible dream. Partnerships between Roscosmos and Europe ended as soon as the war in Ukraine began in February 2022 and there’s absolutely no way for an EU-allied country like Bulgaria to participate in a major project with Russia. So, let’s look about the realistic options to send a Bulgarian to space: Via an ESA partnership. Bulgaria became the tenth ESA cooperating state in 2016. In 2022, another cooperating state agreement was signed. Because of our status, we couldn’t participate in the last selection that took place in 2021–22. The rules of ESA state that “ESA astronauts can only be selected from countries that are ESA Member States and Associated Member States”. In April 2024 The Ministry of Innovation and Growth announced that a strategy has to be prepared until the end of this year which would make possible for Bulgaria to become an Associated Member of ESA. This would allow us to participate in future astronaut selections. Via space tourism. A private individual could fly to space if they fund their own trip, or alternatively, if their trip is funded by a non-profit organization, for example Space for Humanity. Via a national space program that is strongly backed by Bulgaria’s government. Space enthusiasts can look to Türkiye as an example. Back in 2021 the Turkish government announced a ten-year plan for their space program which included development of space technologies, satellites, a spaceport, a Moon lander, and sending a Turkish citizen to space. The last achievement happened this year: in January astronaut Alper Gezeravci launched aboard a Crew Dragon as part of the Axiom Mission 3, and then in June his backup, Tuva Atasever, flew aboard Virgin Galactic’s Unity spacecraft. This is exactly why signing the Artemis Accords in November 2023 was so important for Bulgaria. First, it signaled that Bulgaria is becoming committed to US-led space activities and desires to be part of them. Second, it truly signifies the end of the old ways of thinking and embraces the new approaches in space exploration which include business and entrepreneurship. Our next steps to the stars have finally been taken. Now it’s up to us to carve a path ahead. This aspiration was further reiterated in April, when The Ministry of Innovations and Growth signed a letter of intent for cooperation with Axiom Space. While it doesn’t mention a commitment to send an astronaut to space, it is said to lay “the first steps for a long-term and sustainable partnership to promote and develop the national space ecosystem”. On June 25th the fourth edition of “Hello Space? Bulgaria Calling!” festival, which is organized by the Atlantic Club under the auspices of the Ministry of Education and Science, was held in Sofia Tech Park. I was among the 15 lectors invited to speak in front hundreds of students, and the festival was also attended by an active astronaut of Axiom Space: Michael López-Alegría, who commanded the Axiom Mission 3 that sent the first Turkish citizen to space. López-Alegría gave an intriguing and inspiring presentation about his flight and also answered many questions asked by the students. Our next steps to the stars have finally been taken. Now it’s up to us to carve a path ahead. During that festival, Galin Tsokov, who is the current Minister of Education and Science, said to the students: “You could become the next world-famous explorers, the next astronauts.” We must not let them down. Svetoslav Alexandrov has a PhD in plant physiology. He’s also a passionate space enthusiast and runs the COSMOS BG website dedicated to covering space news in Bulgaria.

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