Beyond This Horizon

Beyond This Horizon: 
Understanding the Political and Economic Context of The U.S. Commercial Space Launch Competitiveness Act

Abstract.
I. Introduction.

Part One: Politics and Property Rights in the Context of International Law
II. H.R. 2262 Title IV—Space Resource Exploration and Utilization Act of 2015.
III. Treaties and International Law
IV. The Future of Public Policy on Asteroid Mining.

Part Two: Economics and Cooperation between Public and Private Sectors
V. The Case for a Space-Based Market.
VI. The Risk of Price Crashes and Other Economic Considerations.
VII. Uniting the Public and Private Sectors.

VIII. Conclusion.
References.

 

Abstract.

The U.S. Commercial Space Launch Competitiveness Act, signed into law in November, 2015, brought the world the first national policy to grant citizens and companies property rights to resources they can extract from asteroids and other objects in space. The Act takes care to remain consistent with existing international treaties, aligning with the Outer Space Treaty and contrasting with the more cooperative but failed Moon Treaty. The Act further mandates the development of national policies to address safety, launch coordination, and commercial partnerships. It requires a number of reports and assessments due in 2016 from various agencies, especially the Secretary of Transportation. The National Oceanic and Atmospheric Administration issued new policy in early 2016 to address partnering with the commercial sector on space missions, and the nation of Luxembourg has begun developing its own national policy on these matters of property rights and commercial partnerships. An economically viable asteroid mining industry will depend on the development not only of new technologies, but on the creation of a space-based economy using the extracted resources for propellants and construction in space. Collaborative partnerships between the governmental, commercial, and academic sectors will be a driving force in making this economy possible.

Keywords: Academic Sector, Asteroid Exploration, Asteroid Mining, Commercial Space Exploration, Extracted Resources, H.R. 2262, NASA, Outer Space Treaty, Property Rights, Public Policy, Private Sector, Space-Based Resources, Space-Based Economy, U.S. Commercial Space Launch Competitiveness Act

 

I. Introduction.

In November, 2015, President Obama signed into law H.R. 2262, The U.S. Commercial Space Launch Competitiveness Act. This Act provides new clarity about private U.S. citizens’ property rights concerning resources extracted from asteroids and other objects in space. Multiple private companies are planning their own commercial space travel, exploration, and extraterrestrial mining operations in the next few years, giving birth to an industry unlike anything in history. With a new industry come new opportunities for policy makers to address the legal, political, and economic concerns uniquely raised by the industry, as well as opportunities to encourage the technological developments required to make that industry grow. H.R. 2262 positions the USA as a policy leader in defining rights to space-based resources to stimulate commercial involvement in the embryonic industry of asteroid mining, and sets the stage for a global movement towards making this industry a significant economic force by fostering collaboration between the governmental, commercial, and academic sectors.

 

Part One: Politics and Property Rights in the Context of International Law.

 

II. H.R. 2262 Title IV—Space Resource Exploration and Utilization Act of 2015.

H.R. 2262 addresses many space-related concerns in its brief nineteen pages. We first consider its Title IV which has given private industry the greatest cause for celebration. In a globally unprecedented move, the U.S. has addressed the concept of property rights as they apply to resources extracted from objects in space. The scope and meaning of Title IV requires an understanding of the international treaty environment which carries obligations for the U.S.

The Corporation as Citizen.

One thing must be made clear from the beginning. Title IV uses the term “United States citizen”. To avoid confusion over whether or not this language applies to private companies and corporations, H.R. 2262 defines “United States Citizen” per the United States Code, Title 51, Section 50902. That document defines a “citizen of the United States” as one of three things: “an individual who is a citizen of the United States”; “an entity organized or existing under the laws of the United States or a State”; “or an entity organized or existing under the laws of a foreign country if the controlling interest (as defined by the Secretary of Transportation) is held by” one of the two previously named types of citizens. For the purposes of H.R. 2262, corporations are included in statements about citizens.

Private Property Rights.

After a brief Section 51301 which provides definitions, Section 51302 authorizes the President to encourage “commercial exploration” and “commercial recovery of space resources by United States citizens”. It authorizes the President to “discourage government barriers” to developing economically viable industries for these purposes. This section requires the President to “submit to Congress a report” recommending how responsibilities on this matter will be allocated to federal agencies. This report is due within 180 days of the bill’s enactment, placing its deadline in May, 2016.

Next, Section 51303 “Asteroid resource and space resource rights” gets to the heart of the matter. In its entirety, it reads:

“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”

Representative Brian Babin (R-TX), Chairman of the Space subcommittee of the House Committee on Science, addressed concerns over these international obligations  in a speech to the 10th Eilene Galloway Symposium on Critical Issues in Space Law in December, 2015 (Planetary Resources, 2015). According to Babin, Title IV is:

“…consistent with U.S. international obligations. Article VI of the Outer Space Treaty explicitly recognizes that non-governmental entities, such as private corporations, may explore and use outer space, including the right to remove, take possession, and use in-situ natural resources from celestial bodies” (Babin, 2015).

It is also “consistent with United States obligations under Article II of the Outer Space Treaty and is not an assertion of sovereignty or jurisdiction over any celestial body” (ibid). Representative Babin clarifies here the intention of the final paragraph of Title IV, which states the U.S. “does not assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.” Examining these treaties further illuminates the new law.

 

III. Treaties and International Law

The Outer Space Treaty: Existing Treaty Obligations.

The Outer Space Treaty, first created in 1967, is formally called the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. Some language in the treaty suggests a cooperative approach to space-based resources, that they should be used for the benefit of everyone on Earth. For example, Article I states,

“The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind” (Treaty, 1967).

Article IX of the Outer Space Treaty includes language about the well-being of other nations, such as:

“States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the earth resulting from the introduction of extraterrestrial matter”.

However, the Outer Space Treaty does not address ownership of extracted resources, or any obligation to share them with other nations. Article IV only says “that non-governmental organisations [sic] have to be supervised by their nation states”, a clause which creates a “compromise” giving “private companies a chance to exploit the new frontier” of space-based resources (Brooks, 2014, p. 26). H.R. 2262 builds on this idea that claiming ownership of areas, such as a parcel of land on the Moon, is not allowed, but ownership may attach to the extracted resources, even by commercial companies. H.R. 2262 aims to stimulate a competitive environment where private enterprise stands to gain a financial stake in extracting resources from space. To those who would argue for the ideals embodied in a more cooperative environment of sharing those resources with all nations, it is worth examining the failure of another treaty which sought exactly that: the Moon Treaty.

The Moon Treaty versus Profit Motives.

The Moon Treaty, formally titled The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, has gathered only seven signatory nations since its creation in 1979 (Agreement, 1979). Put simply, “The seven nations which have ratified the Moon Agreement have no investment in it—they are not space-faring” (Brooks, 2014, p. 26). Within its twenty-one articles, the treaty includes such noble language as “the moon and its natural resources are the common heritage of mankind” and requires that “all space vehicles, equipment, facilities, stations and installations on the moon shall be open to other States Parties.” It also advocates sharing of extracted resources between nations:

“An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.” (Agreement, 1979)

The authors of Space Mineral Resources agree the Outer Space Treaty, being the most widely ratified, is the dominant space treaty, and  the Moon Treaty was a “failure” because it sought to “systematically prohibit the profit motive that so many societies see as their life’s blood” (Dula, 2015). The lack of signatory nations suggests the Treaty’s focus on cooperation, equitable sharing, and global consideration of developing nations does not appear attractive to the more developed space-faring nations. It stands in stark contrast to the private-ownership provisions of H.R. 2262. Space Mineral Resources argues that the “common heritage of mankind” concept—that the use and benefits of space-based resources belong to all humans equally and should be shared—is unlikely to become an enforceable policy given the failure of the Moon Treaty (ibid). Whether or not one believes that believes space-based resources should be shared by all humanity, such an international agreement about property rights in space stands very little chance of being ratified.

H.R. 2622 evidences a belief that competition between private citizens will create the economic incentive necessary to encourage asteroid mining. When speaking of lunar exploration and usage, Bigelow Aerospace attorney Mike Gold told Dissent magazine, “Property rights are key to gaining the investment necessary to move forward” (Riederer, 2014, p. 8). Title IV of H.R. 2262 embodies this thinking, assigning property rights to private citizens for their extracted resources, while simultaneously denying any ownership or sovereign claims to celestial bodies themselves.

Sovereignty, Jurisdiction, and Customary International Law.

If that sounds potentially complicated, Michael Simpson, executive director of the Secure World Foundation, an “organization dedicated to the sustainable use of space resources”, agrees: “In recorded history, we have never dealt with a system of governance, whether formal or informal, in the absence of sovereignty” (Riederer, 2014, p. 10). What exactly is meant by “sovereignty”?

The Encyclopædia Britannica defines sovereignty as “the ultimate… authority in the decision-making process of the state”, noting the modern meaning of “absolute authority to declare the law” stems from the works of philosopher Thomas Hobbes (Encyclopædia, 2014). Therefore, an absence of sovereignty in space means no single nation may be the ultimate source of laws or authority in space or on celestial bodies. However, this concept does not relegate human activity in space to an environment of lawless anarchy, for nations do have jurisdiction over their citizens in space, as well as having guiding principles of international law to consider.

The Outer Space Treaty addresses jurisdiction using a rationale similar to the United Nations Convention on Law of the Sea (Dula, 2015). While a nation cannot lay claim to a celestial body as its territory, the nation’s laws govern its citizens upon it. This concept is called quasi-territorial jurisdiction. It is the same concept that binds a nation’s citizens to that nation’s laws when they are at sea, outside the recognized geographic borders of the nation.

The authors of Space Mineral Resources also explore the concept of Customary International Law (CIL), which is the area where norms become binding to some degree, whether through general established practice or general legal opinions. The authors predict a relatively new development in CIL, where commercial, non-governmental companies play a major role in establishing those norms and general practices, simply by virtue of the major role they will play in this new frontier (Dula, 2015). This could be a cautionary note to policy makers, lest the absence of a strong legal framework allows commercial enterprise to define public law.

IV. The Future of Public Policy on Asteroid Mining.

H.R. 2262 and Public Safety.

Safety remains an important public policy matter where private space launches and exploration are concerned. The Outer Space Treaty comes from the days when the U.S. and U.S.S.R. were the dominant players, and the Moon was the main target. Now, policy makers face a potentially complex and unsafe environment, a multitude of individual commercial missions with their own agendas and timetables. The authors of Space Mineral Resources proposed creating a “Space Traffic Control Center” to coordinate traffic, time launches, and reduce the possibility of collisions and disasters (Dula, 2015).

H.R. 2262 does not offer definitive safety guidelines, but it sets the wheels in motion to establish them. Title I addresses the need for safety in Sections 108-111, requiring reports from the Secretary of Transportation in consultation with NASA, the FCC, the Secretary of State, the Secretary of Commerce, the Secretary of Defense, the Commercial Space Transportation Advisory Committee, and “the heads of other relevant Federal agencies, and the commercial space sector”. These reports will clarify how commercial space launches will be authorized and supervised (Sec. 108), the management of space traffic and space assets of both the government and private sectors (Sec 109), and releasing “safety-related space situational awareness data” in a manner consistent with national security concerns (Sec. 110). Section 111 focuses on developing “regulatory approaches” and “performance standards” for the commercial sector, requiring ongoing reports through 2021 on “the progress of the commercial space transportation industry in developing voluntary industry consensus standards that promote best practices to improve industry safety” and a report “specifying key industry metrics that might indicate readiness of the commercial space sector” to adopt a “safety framework” as mandated.

NOAA Commercial Space Policy.

H.R. 2262 Title III addresses the role of the Office of Space Commerce after renaming it from the Office of Space Commercialization. This agency operates under the National Oceanic and Atmospheric Administration (NOAA), which in turn operates under the U.S. Department of Commerce. In January, 2016, less than two months after the enactment of H.R. 2262, the NOAA issued its Commercial Space Policy. This policy designates the Office of Space Commerce “as a single point of entry for commercial providers” to work with the agency on its data collection, its promotion of the space industry, and improving its mission capabilities (NOAA, Jan. 2016). On March 16, 2016, NOAA took another step to “provide transparency to the commercial industry” by posting its satellite requirements, including requirements for the Deep Space Climate Observatory (DSCOVR) which “had not previously been available to the public” (NOAA, Mar 2016).

Space Mineral Resources draws attention to a policy “vacuum” of legal frameworks and property rights for asteroid mining, an industry the authors describe as “embryonic”. However, within months of its publication, H.R. 2262 has taken the first steps to address this policy vacuum and create a policy regime to stimulate commercial industry involvement. As the NOAA continues to integrate the commercial sector into its agency goals, and as the reports from the Secretary of Transportation and the President come in this year, we will see definitive progress towards policy that fosters public-private cooperation in exploring space and extracting its resources. And, by recognizing its existing treaty obligations, H.R. 2262 models how a nation might create its own unique responses to the industry while remaining a team player on the international level.

Luxembourg.

The U.S. is not the only country interested in defining extraterrestrial property rights through public policy. In February, 2016 the Luxembourg Ministry of the Economy announced a similar policy initiative. “Luxembourg is the first European country to announce its intention to set out a formal legal framework which ensures that private operators working in space can be confident about their rights to the resources they extract, i.e. rare minerals from asteroids” (Luxembourg, 2016). As an example of the economic significance of public-private partnerships in this new industry, the Ministry says it will “consider direct capital investment in companies active in this field” (ibid). Luxembourg is preparing this policy as part of their SpaceResources.lu budget, which will fit into the international framework of “the next multiannual budget of the European Space Agency, to be decided in December 2016” (ibid).

To date, “Luxembourg and the U.S. are the only two countries in the world who have begun to take legal action toward securing property rights for commercial companies who could, one day, collect rare and precious resources from asteroids” (Orwig, 2016). But it seems likely that other nations will begin to follow suit as excitement about the economic possibilities of asteroid mining continues to rise. “National laws are the major framework that individual actors, both private and government, will accept as a means for specifically developing and acting in space,” write the authors of Space Mineral Resources, but “international law will be the most relevant to prevent and solve potential international conflicts of interest concerning space actors from different countries” (Dula, 2015). National policy will need to be consistent with international law to create legal certainty and clarity for the asteroid mining industry. The near future should prove whether the policies from the U.S. and Luxembourg will serve as models for other nations, or if we will see different approaches to extraterrestrial property rights.

 

Part Two: Economics and Cooperation between Public and Private Sectors

If the main goal is economic stimulation, then what will make asteroid mining economically viable? Dante Lauretta of the University of Tucson, principal investigator for NASA’s OSIRIS-REx mission to the asteroid Bennu, points out the economic challenge inherent in asteroid mining. Laurette estimates that “for the recoverable value in any given asteroid, you’re spending half that to bring it back” to Earth (Science Teacher, 2013, p. 16). This idea that mined asteroid resources will be brought to Earth may represent the popular conception of asteroid mining. After all, what is the point of mining in space if we do not bring the materials to Earth? But, the massive cost of doing so has prompted researchers to argue the best economic use is to keep them in space.

 

V. The Case for a Space-Based Market.

In Asteroid Mining 101, John S. Lewis creates a case for a space-based economy as a necessity for successful exploitation of asteroid resources. Its proposals include using water—and other elements currently found as ice in asteroids—for propellants (rocket fuel), and using mined ferrous metals for constructing equipment and dwellings in space. The authors of Space Mineral Resources agree that a mining industry “based upon precious metals to terrestrial markets alone appears to be a non-starter”, and that making asteroid mining economically feasible would depend on having “in-space customers for propellants, consumables, structural materials, and shielding” (Dula, 2015).

The Influence of Gravity.

Earth’s gravity is largely to blame for this dim view of bringing extracted resources to Earth. Put simply, it requires a huge and expensive amount of fuel to launch a rocket from Earth’s surface and propel it through the atmosphere into space. And by comparison, it takes miniscule amounts of fuel to move a vessel through space outside of Earth’s sphere of gravitational influence and in a vacuum or near-vacuum. Mathematically speaking, the important figure in calculating the energy of getting a spacecraft from one point to another is expressed in the term “delta V”, meaning the required change in velocity, with the necessary energy being proportional to the square of delta V (Lewis, 2015, p. 82).

In terms of delta V, the Moon is less accessible than Mars’ moons and the estimated 3800 Near Earth Asteroids (NEAs) because of the high delta V required to both land a spacecraft on the Moon safely and to relaunch that craft from it (ibid, p. 84). Ten years ago, in a paper published in the AIP Conference Proceedings, Ken Erickson predicted several things as “reasonably likely” to be “realized or about to be put in place” by 2015: “substantial orbital tourism, tourist trips to the Moon, human exploration of the lunar surface for scientific and economic purposes, and robotic and human scouting missions with intention of building lunar bases” (Erickson, 2006, p. 1150). He based the likelihood of these events on “lunar exploration initiatives of the U.S., Russia, E.U., China, and others”, as well as the expected increase in demand for certain resources (ibid, 2006, p. 1148).

But these things have not come to pass to any significant degree, and the Moon’s gravitational strength is a major reason why they have not. Near Earth asteroids now seem a much more likely target for resource extraction, considering their high resource potential and the low delta V required to exploit it. A space-based economy with construction and launches from low Earth orbit to and from NEAs would greatly reduce the incredible cost of propellants needed to overcome gravity.

Using Resources in Space.

John S. Lewis identifies “an in-space demand for ferrous metals” as a condition for the economic viability of extracting platinum-group metals (PGMs) from asteroids (Lewis, 2015, p. 113). PGMs will not be mined directly, but are “lucrative byproducts” of mining ferrous metals, such as iron and nickel (ibid, p. 109-10). Space-based construction would use ferrous metals to build equipment, satellites, housing, research stations, probes, and other tools of exploration. Lewis also applies this space-based approach to resources which could serve as propellants. Water mined from asteroids and extinct comets which now orbit like asteroids could be used in steam-based propulsion systems, such as those that heat water using refracted sun rays (solar thermal propulsion) and those that run water over a nuclear reactor core to make steam (nuclear thermal propulsion) (ibid, p. 107).

Space Mineral Resources calls water “the currency of space” and sees the establishment of spaceports “selling water that was mined from the Moon or asteroids” as a necessity for expanding human activities beyond Earth (Dula, 2015). Water will play an important role in generating energy, serving as propellant, enabling extraterrestrial agriculture, and, of course, fulfilling humans’ biological need to drink it (ibid). Water is also an effective radiation shield, even more effective than the silicates found in many asteroids, and could be incorporated into the architecture of spacecraft and moveable housing to protect humans from damage by cosmic radiation (Lewis, 2015, p. 102, 108-9). Earth’s atmosphere protects humans on this planet, but radiation exposure in space presents a serious threat. Therefore, despite the popular notion of mining asteroids to make a fortune in rare metals, water may well prove to be the most important resource extracted from celestial bodies.

These conclusions bring to light the kinds of industries and technological innovations the President and federal agencies will need to “encourage” per H.R. 2262, Title IV. Federal policy makers will need to think beyond the limited and economically flawed idea of bringing resources to Earth, and instead focus on creating the space-based market that will make the best use of those resources.

VI. The Risk of Price Crashes and Other Economic Considerations.

Price Crashes in Mineral Markets.

The literature advocating asteroid mining often touts the monetary value of asteroid-bound minerals as a major incentive for developing the industry. But this value creates a problem which public policy may need to solve: the risk of a price crash that would utterly devalue said minerals. Asteroid Mining 101offers the following estimates of minerals present in the Near Earth Asteroids (NEAs), not to be confused with the Asteroid Belt between Mars and Jupiter.

“Given the total mass of the NEA swarm of 120×1015 kg, it is possible to calculate the Earth-surface market value of its materials at present market prices. The balance sheet includes 37×1015 kg of iron worth $11,000 trillion, 2.5×109 kg of Ni [nickel] worth $70,000 trillion, 2×108 kg of cobalt worth another $70,000 trillion, and 1.8×106 kg of PGMs [platinum group metals] worth yet another $70,000 trillion” (Lewis, 2015, p. 113).

Although Lewis believes “there is absolutely no prospect of importing even a tiny proportion of these materials to Earth”, he cautions that importing PGMs to Earth only makes economic sense “if the PGM import rate is tightly controlled so as to avoid a price crash” (ibid). Flooding Earth’s market with rare resources would drive their prices down, inadvertently de-incentivizing a mining operation, from an economic standpoint. As The Independent Review’s write-up on Asteroid Mining 101 states, Lewis’ estimated monetary value of asteroid ores “should not be taken literally—bringing these ores to market would obviously greatly decrease their price due to the massive supply increase” (Salter, p. 459). Currently, no public policy addresses this risk of a price crash, perhaps because even NASA’s ambitious OSIRIS-REx mission only aims to bring back 60 grams of asteroid samples from its seven-year mission to Bennu and back (NASA, Feb. 2016). But as technology develops over the next few years and science fiction begins to turn into science fact, policy makers will undoubtedly need to address price control and market regulation.

Insurance and Licensing.

Title I of H.R. 2262 addresses two other economic concerns for the budding commercial space exploration industry: insurance claims and licensing. Section 102 charges the Secretary of Transportation to evaluate and, if necessary, update the “methodology used to calculate the maximum probable loss under section 50914 of Title 51, United States Code”. This section of the U.S. Code concerns “liability insurance and financial responsibility requirements” related to any death, injury, or property damages caused by space launches and re-entries. It requires an annual report every May 15, and—as amended by the Act—gives federal courts the exclusive jurisdiction over claims. H.R. 2262 mandates the Comptroller General to evaluate and report on the results of the report, and any steps required to implement it.

Section 105 requires the Secretary of Transportation to submit a report “on approaches for streamlining the licensing and permitting process of launch vehicles, reentry vehicles” and their components to “improve efficiency, reduce unnecessary costs, resolve inconsistencies, remove duplication, and minimize unwarranted constraints” as well as assess “existing private and government infrastructure… in future licensing activities”. Clearly the federal government wants to make sure companies are not only properly insured but properly licensed for the protection of all those involved, and to clarify the process to achieve these goals.

 

VII. Uniting the Public and Private Sectors.

Arguments for Private-Sector Leadership.

The much-publicized increase in private space launches parallels a shift towards an attitude Ken Erickson describes as, “Yes, people do go into space on their own, recreationally, without needing a huge government agency to do it” (Erickson, 2006, p. 1151). In keeping with this private-not-public approach to space exploration and mining, Erickson’s Next X-Prize article sets forth a detailed program in which private industry would offer a cash prize in a competition to establish a viable base at L1, one of the five Lagrange points where, due to the physics of gravity, an object could maintain a stable position in space relative to the Earth and Moon. Erickson models this proposal on “the Ansari X-prize that led to the first private manned flight into space by Scaled Composites” (Erickson, 2007, p. 1145). He cites The Aldridge Commission’s 2004 report that estimated this $10 million prize created a “$400 million private and industry investment supporting the many teams competing to win the prize”, effectively creating a demand and resulting in economic stimulation.

A principal finding of the study presented in Space Mineral Resources also supports this idea of private enterprise operating independently from the government.

“SMR ventures cannot wait for government programs to lower technological and programmatic risks. Commercial ventures must determine the optimum path for commercial success and aggressively lead the way beyond low Earth orbit (LEO). During the first half of the 21st century, space leadership will come from commercial enterprises and not depend upon government space programs” (Dula, 2015).

The authors of this study suggest that commercial enterprises will get to space first and “will be able to support government explorations by selling products to them” at designated locations (ibid). The study took place under the auspices of the International Academy of Astronautics (IAA), a non-governmental organization, and several commercial firms contributed to it: Moon Express, Excalibur Exploration Limited, Deep Space Industries (also the publisher of Asteroid Mining 101), Ad Astra Rocket Company, and Shackleton Energy Company. One might expect publications involving commercial space exploration companies to be somewhat biased in favor of private-sector leadership.

These arguments for private-sector leadership in asteroid mining may appeal to those who see government-led exploration as little more than a sinkhole for tax dollars. Erickson criticizes the International Space Station (ISS) as a “government enterprise” which has “stagnated” and “consumed the scientific, technical, and creative energies of many nations, without repaying them a dollar” (Erickson, 2007, p. 1146).

As if in answer to these criticisms, H.R. 2262 addresses the economics of the International Space Station. First, H.R. 2262 Title I Section 114 amends The NASA Act of 2010 to extend the U.S. commitment to using and maintaining the ISS to 2024, from the previous date of 2020. NASA is directed to “pursue international, commercial, and intragovernmental means to maximize ISS logistics supply, maintenance, and operational capabilities, reduce risks to ISS systems sustainability, and offset and minimize United States operations costs relating to the ISS” (42 U.S.C, § 18351). H.R. 2262 states the importance of ensuring “the greatest return on investments made by the United States and its international partners in the development, assembly, and operations” of the ISS, and the importance of taking “all necessary steps” to keep the ISS “viable and productive” in support of “exploration and partnership strategies”. This language makes it clear that Congress views the ISS not as a financial liability but a facility that can support commercial partnerships that make money, not lose it.

Arguments for private-sector leadership sometimes gloss over the fact that even private companies use government infrastructure. For example, the commercial company SpaceX uses launch pad 39A at Kennedy Space Center in Cape Canaveral, Florida under a 20-year agreement signed in 2014 with NASA (NASA, 2014). This is the same launch site used for, among other historic events, the launching of Apollo 11 for the first manned Moon landing in 1969 (ibid). The Center’s Director, Bob Cabana, sees repurposing such historic facilities as part of a “plan for a multi-user spaceport shared by government and commercial partners” (ibid). And despite his criticisms, Erickson argues his proposed L1 base would involve “private industry, government agencies, and wealthy entrepreneurs”, all of whom “stand to gain” from the endeavor (Erickson, 2007, p. 1146). While the private sector takes an increasingly prominent role in exploring space and the quest to extract its resources, the result is not a private-versus-public scenario. Instead, government policy such as H.R. 2262 provides the legal framework, government infrastructure provides the technological foundation for private enterprise, and the result is collaboration and cooperation.

NASA and Public-Private Collaboration.

NASA’s research and pioneering efforts pave the way for the private sector and its partnerships with public agencies. Two NASA missions exemplify their leadership and partnerships. First, NASA remains a leader in the study of the Asteroid Belt between Mars and Jupiter, having recently given the world its most detailed study of 4 Vesta, the second-largest known asteroid in the Belt. NASA’s Dawn Mission began its interplanetary cruise in December, 2007, settling into its first orbit around the asteroid Vesta in July, 2011. Its measurements gave “scientists a near 3-D view into Vesta’s internal structure”, “obtained the highest-resolution surface temperature maps of any asteroid visited by a spacecraft”, and revealed new information about the asteroid’s surface features and mineral content (Cook, 2012). The Dawn spacecraft next moved to the largest-known Belt asteroid, Ceres, entering into its orbit in 2015, and continuing to send back images and data to Earth at the time of this writing. (Dates for the Dawn Mission come from the Mission Status Updates by Chief Engineer/Mission Director Marc Rayman.)

NASA’s leadership in asteroid exploration includes studies of the Near Earth Asteroids, too. NASA has scheduled its spacecraft OSIRIS-REx to launch in September, 2016, with an anticipated return date in 2023. OSIRIS-REx stands for “Origins, Spectral Interpretation, Resource Identification, Security-Regolith Explorer”. Dante Lauretta of the University of Tucson, principal investigator the mission, describes it as a “proof of concept” which will “develop important technologies for asteroid exploration that will benefit anyone interested in exploring or mining asteroids, whether it’s NASA or a private company” (Science Teacher, 2013, p. 14). It will be the “first U.S. mission to collect a sample of an asteroid and return it to Earth for study” (NASA, Feb. 2016). The governmental sector is clearly providing leadership. But did NASA build the spacecraft? No. That job fell to “Lockheed Martin Space Systems in Denver”, a division of the prominent defense contractor Lockheed Martin (ibid). There is no reason to draw a line between government and commercial contributions to these efforts. Rather, partnerships between public and private agencies make them possible.

The Academic Sector.

The role of public universities in these endeavors is exemplified by the student-designed equipment included in the OSIRIS-REx mission. “The Regolith X-ray Imaging Spectrometer (REXIS) will determine elemental abundances on the surface of asteroid Bennu, complementing the mineral and chemical mapping capabilities provided by two other instruments on the spacecraft” (NASA, Jan. 2016). This REXIS instrument is essentially a telescope that will image the fluorescence of the regolith on the asteroid’s surface as solar x-rays interact with it, “allowing the production of maps of the different elements present on Bennu’s surface” (ibid). Students working with faculty designed the instrument, and more than 100 students from MIT and Harvard will be involved in the mission, performing “data analysis as part of their coursework” (ibid). The OSIRIS-REx mission demonstrates the important role the public sector plays in forming collaborative partnerships. By drawing on the intellectual capital of universities, NASA missions engage institutions from the academic sector.

Members of the academic community also serve in advisory roles, such as Dante Lauretta, quoted above, and Asteroid Mining 101 author John S. Lewis, who served as an advisor to NASA numerous times. Arizona State University boasts a Mars Space Flight Facility which has contributed to recent Mars missions such as NASA’s Mars Science Laboratory, a rover spacecraft whose landing site was chosen using data from ASU’s Thermal Emission Imaging System (THEMIS) aboard NASA’s orbiting Mars Odyssey spacecraft. The academic sector plays an increasingly important and publicly recognized role in furthering space exploration.

But universities also stand to gain financially from intellectual property rights to the technologies they develop. U.S. law grants universities ownership of the technologies and inventions developed by students and faculty using university resources (Ferrera, 2012, p. 40). The Bayh-Doyle Act of 1980 enabled universities to take title to inventions developed in the course of federally-sponsored work, resulting in thousands of commercial product launches and billions of dollars in revenue for universities (ibid, p. 41). Universities often retain these rights and then license them to students who commercialize them, with Stanford University’s patent ownership of Google’s underlying PageRank algorithm being but one famous example (ibid, p. 41-2).

Conversely, NASA’s Technology Transfer Program works to bring its own patented technologies to business students who may develop commercial business plans around licensing NASA’s tech. In one successful example of this collaborative effort, a student-faculty team at Rollins College developed a prototype and commercialization plan to bring to market a sensor developed by NASA (Heiney, 2012). According to NASA’s Technology Transfer University, this sensor was “originally developed to inspect windows on the space shuttle” (T2U).

Therefore, we can expect to see universities becoming an important economic force in the future of asteroid mining, as they will hold the intellectual property rights to the innovations they contribute to these joint efforts between the public and private sectors, and have opportunities to work with NASA on commercializing existing technologies. The future of space exploration and asteroid mining promises to be a significant source of economic and educational opportunities for universities.

 

VIII. Conclusion.

In an editorial piece in 2000 entitled The Shape of Kleopatra, Science magazine editor William K. Hartmann wrote,

“The idea of asteroid mining raises the question of who owns the resources. Is there a social mechanism by which the benefit of such resources can be spread to all humanity, instead of increasing sociopolitical instability by making only the discoverers (or discovering nations) rich and increasing the gap between the first and third worlds?”

Now, sixteen years later, The U.S. Commercial Space Launch Competitiveness Act has given the world its first clear public policy concerning property rights to resources extracted from asteroids and other celestial objects. It has also spurred the development of new policies concerning safety regulations, launch coordination, and partnerships between the governmental and commercial sectors. These will become clear by the end of 2016, both in offices of the U.S. government and in other countries.

But as the possibilities for the industry congeal into new realities, Hartmann’s question remains unanswered. Will the potentially vast wealth of space-based resources benefit all humanity, or will it be concentrated in the hands of the already wealthy who can afford the massive expenses to explore, extract, and claim it? If profit motives and competition have vanquished the idea of space resources being the “common heritage of mankind” in international and national law, then we must hope the resultant economic stimulation from the commercial asteroid mining industry will benefit societies as a whole by strengthening the public, private, and academic sectors. The resources of space await humanity and draw ever closer to our technological grasp. It will be up to us to use them wisely.

 

References

Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (The Moon Treaty). (1979). Retrieved from http://disarmament.un.org/treaties/t/moon/text

Arizona State University (ASU). “THEMIS Support for MSL.” Mars Space Flight Facility. Retrieved from https://themis.asu.edu/landingsites

Babin, Brian. (9 December, 2015). Remarks to the 10th Eilene Galloway Symposium on Critical Issues in Space Law. Retrieved from http://pri.wpengine.netdna-cdn.com/wp-content/uploads/2015/12/2015-12-9-Galloway-Speech-for-CBB.pdf

 Brooks, Michael. (21 February, 2014). “Lunar land-grab.” New Statesman, 143(5198): 24-27.

“Can We Mine Asteroids?” (October, 2013). Science Teacher, 80(7): 14-16.

Code of Laws of the United States of America. 42 U.S.C. § 18351 retrieved from https://www.law.cornell.edu/uscode/text/42/18351

51 U.S.C. § 50902 retrieved from https://www.law.cornell.edu/uscode/text/51/50902

51 U.S.C. § 50914 retrieved from https://www.law.cornell.edu/uscode/text/51/50914

Cook, Jia-Rui C. (25 April, 2012). “Dawn Reveals Secrets of Giant Asteroid Vesta” (News Release). Jet Propulsion Laboratory, California Institute of Technology. Retrieved from http://dawn.jpl.nasa.gov/news/asteroid_vesta_secrets_revealed.asp

Dula, Arthur, and Zhenjun, Zhang, Editors. (27 November, 2015). Space Mineral Resources: A Global Assessment of the Challenges and Opportunities. Virginia Edition Publishing Company.

Encyclopædia Britannica. (2014). “Sovereignty.” Retrieved from http://www.britannica.com/topic/sovereignty

Erickson, Ken R. (2006). “Next X-Prize: L1 Base with Linked Asteroid Mining as Prime Catalyst for Space Enterprise.” AIP Conference Proceedings, 813(1): 1145-1152. DOI: 10.1063/1.2169296

Erickson, Ken R. (2007). “Optimal Architecture for an Asteroid Mining Mission: System Components and Project Execution.” AIP Conference Proceedings, 880(1): 896-903. DOI: 10.1063/1.2437531

Ferrera, Gerald R., et. al. (2012). CyberLaw Text & Cases (Third Edition). South-Western, Cengage Learning: Mason, OH.

Hartmann, William K. (2000). “The Shape of Kleopatra.” Science, 288(5467).

Heiney, Anna. (12 December, 2012). “Business Students Accelerate NASA Technologies to Market”. NASA John F. Kennedy Space Center. Retrieved from http://www.nasa.gov/centers/kennedy/news/nasa_rollins.html

H.R. 2262: The US Commercial Space Launch Competitiveness Act. Retrieved from: https://www.congress.gov/bill/114th-congress/house-bill/2262/text

Lewis, John S. (2015). Asteroid Mining 101: Wealth for the New Space Economy. Deep Space Industries, Inc.

Luxembourg Ministry of the Economy. (2 February, 2016). “Luxembourg to launch framework to support the future use of space resources.” Government.lu. Retrieved from http://www.gouvernement.lu/5653386

National Aeronautics and Space Administration (NASA). (7 January, 2016). “Student-Built Experiment Integrated onto NASA’s OSIRIS-REx Mission.” NASA Status Report. Retrieved from http://www.nasa.gov/press-release/goddard/2016/student-built-experiment-integrated-onto-nasa-s-osiris-rex-mission

NASA. (19 February, 2016). “NASA Invites Public to Send Artwork to an Asteroid.” NASA Press Release. Retrieved from https://www.nasa.gov/press-release/nasa-invites-public-to-send-artwork-to-an-asteroid

NASA. (15 April, 2014). “NASA Signs Agreement with SpaceX for Use of Historic Launch Pad.” NASA Press Release. Retrieved from https://www.nasa.gov/press/2014/april/nasa-signs-agreement-with-spacex-for-use-of-historic-launch-pad/#.VvF-zzEvfl8

National Oceanic and Atmospheric Administration (NOAA). (8 January, 2016). “NOAA Issues Commercial Space Policy.” Retrieved from http://www.space.commerce.gov/noaa-issues-commercial-space-policy/ and http://www.noaanews.noaa.gov/stories2016/010816-noaa-statement-commercial-space-policy.html

NOAA. (16 March, 2016). “NOAA Satellite Program Requirements Posted.” Retrieved from http://www.space.commerce.gov/noaa-satellite-program-requirements-posted/

Orwig, Jessica. (5 February, 2016). “A tiny European country just made an unprecedented move in the space mining business.” Business Insider. Retrieved from http://www.businessinsider.com/luxembourg-wants-to-cash-in-on-asteroid-mining-2016-2

Planetary Resources. (9 December, 2015). “Representative Brian Babin Speaks about Space Law at the Galloway Symposium.” Retrieved from http://www.planetaryresources.com/2015/12/representative-brian-babin-speaks-about-space-law-at-the-galloway-symposium/

Rayman, Marc. (2007, 2011, 2015, 2016). “Mission Status Updates” (Dawn). Jet Propulsion Laboratory, California Institute of Technology. Retrieved from http://dawn.jpl.nasa.gov/mission/status.html

Riederer, Rachel. (Fall, 2014). “Whose Moon is It Anyway?” Dissent, 61(4): 6-10.

Salter, Alexander William. (Winter, 2016). Untitled Review of Asteroid Mining 101: Wealth for the New Space Economy. The Independent Review, 20(3): 458-460.

Technology Transfer University (T2U). “Bringing NASA Technology into the Classroom.” NASA Technology Transfer Program. Retrieved from http://technology.nasa.gov/t2u

 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (The Outer Space Treaty). (1967). Retrieved from http://disarmament.un.org/treaties/t/outer_space/text

Add Your Insight

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s