Loper Bright and the Space Legal Realm

On June 28, 2024, the United States Supreme Court issued a decision in the case Loper Bright v. Raimondo that has many experts touting its significantly far-reaching consequences in the American legal framework. One Space News contributor posed the question, “What does fishing for herring (the fact pattern of Loper Bright) have to do with developing outer space?” He didn’t leave the reader guessing before posing his decisive answer: “A lot, actually.”¹

Quick Background

This decision strikes down the 40 year old Chevron Doctrine, which had to do with how federal agencies create and maintain rules to meet their mandated responsibilities. Under “Chevron deference,” courts were directed to defer to a given agency’s interpretation of their authorizing statutes, leaving power in the hands of the agency to leverage any ambiguities that may exist. Instead, under the Loper Bright decision, “courts must determine what powers agencies hold when an authorizing statute is unclear.” The Space News article is quick to point out that this does not completely throw out the idea of court deference, as it leaves in place the even more venerable Skidmore deference principle from 1938, “which still directs courts to provide substantial weight on the agency’s expertise, procedural due process, and consistency in the way it has implemented its authority in the past.” The author wraps it up in an easy-to-digest takeaway: “So agency deference is not dead, it’s just no longer a slam dunk.”

Why Does It Affect Space Law?

Again, I’ll leave it to the author to put it incredibly succinctly: “This is important to the future of commercial space precisely because we’ve never had a National Space Act” [emphasis added]. Yes, there is an existing framework laying out responsibilities on the international stage in the Outer Space Treaty, but specific responsibilities for the United States federal government has never been explicitly codified in legislation. Instead, agencies “have been left to cobble together their authority from enabling statutes that, in many instances, were crafted prior to the space age.”

The author points out a couple of key anecdotes to illustrate just how quickly space policy is being developed, from the Federal Communications Commission (FCC) going beyond its normal role of allocating spectrum as it aims to regulate in-space servicing, assembly and manufacturing (ISAM), to the Federal Aviation Administration (FAA) looking to govern what happens to rocket upper stages after orbital insertion, something that Congress has explicitly denied the FAA in the past. So, as I suggested in the title of this blog post, space law is in danger of becoming even more “Wild West” if further action is not taken to explicitly define roles and responsibilities in space.

Cybersecurity Implications

One of the key challenges facing the developing space economy is the question of how to implement effective cybersecurity standards that work to meet the needs of government and commercial space users. Without clear guidance of which agency is responsible for which aspect of this challenge, we run the risk of multiple lines of effort ending fruitlessly, only adding to the confusion. The author points out that this approach must “find a balance on the continuum between ‘permissionless innovation’ (where nearly anything goes), and the ‘precautionary principle’ (where the government must micromanage and approve every activity by U.S. citizens in space).” With space technology touching most if not all critical infrastructure sectors, it is reasonable for many to push towards such a precautionary principle.

The question Loper Bright forces us to ask, however, is which experts are being employed to determine just how far in that direction we should go? Will this decision only serve to slow down the already glacial pace of legislative proceedings in codifying America’s approach to space? Or will it open up an avenue for self-review, introducing a new layer of resilience to absorb the damage of faulty policies and allow for the system to self-heal as we continue to search for the right set of standards to apply to space cybersecurity? Loper Bright provides a means for arcane or arbitrary regulations to be brought up for review, and that can be a good thing, but this still poses unique challenges for the relatively young space industry, where that legal framework is still very much in its developmental stages.

One of the key inhibitors to the development of a comprehensive set of cybersecurity standards for space systems is that it has not been properly prioritized at the highest levels of government. Sure, there is a lot of talk about how important cybersecurity is, but the fact that we still do not have an actual National Space Act defining who is responsible for developing such regulations shows that we have not taken the commensurate action. The Loper Bright decision makes this more important than ever, lest we find ourselves in an endless cycle of unproductive litigation and hand-wringing.

1. James Dunstan, “Regulating outer space after Loper Bright,” Space News, 05 July 2024, https://spacenews.com/regulating-outer-space-after-loper-bright/, accessed 07 July 2024. ↩︎