Srijesh Kumar Singh

SpaceX’s starlink satellites stream across the sky in Southern Brazil. The lack of a proper legislation/international instrument in this regard will inter alia hamper the environment, space exploration and astronomy

Elon Musk’s SpaceX  is preparing to send around 40,000 satellites to the Lower Earth Orbit to form a mega satellite constellation orbiting the Earth. This project has been named “Starlink” and it seeks to create a constellation of satellites in the lower orbit of the Earth. It was announced in the year 2015 and with the recent launch of 58 satellites in the month of June, 2020, 540 satellites have been placed in the Lower Earth Orbit. The project is meant to exponentially boost the internet speed on earth. It is supposed to provide an internet speed of 1 GB per Second. Amid the path-breaking stint being made, there are concerns growing over its legality.

EXISTING LAW

For regulating the activities in space, International Space Law is applied. The core of International space Law lies in Five Space-specific international treaties. These treaties were adopted under the aegis of the UN. The most relevant treaty to mention here is the ‘The Outer Space Treaty’.

Article 1 of the outer Space Treaty, 1966 declares that Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies. Now, when it is available for anyone to conduct research, it means that people with the help of ground-based technologies can conduct any research to explore the outer space and at the same time, people with the help of artificial satellites can also explore the outer space. The major concern is the conflict of rights between persons who use ground-based technologies and persons (or companies) who rely on artificial satellites for the aforesaid purpose.

POSSIBLE LEGAL HURDLES:-

Astronomer’s Rights v. the Rights of a Corporation

The constellation of satellites that the company is going to make in the lower earth orbit will have a grave effect on astronomy as the capability of ground based astronomical instrumentation is being endangered by the deployment of satellite fleets of unprecedented size. Astronomers are of the view that due to the metallic reflectiveness of the satellites, the light rays reflected, makes them visible as a slow moving dot in the sky at night. This poses a difficulty before the ability of the ground based astronomical telescopes to determine the movement of stars, planets and other cosmos behaviour. Moreover, the radio signals emitted from the satellite constellation obstructs the astronomical research too. The main problem lies in the unprecedented amount of satellites that is being sent as greater the number of satellites, greater will be the emission of radio waves which in turn will further obstruct the astronomical research.

Recently, an extremely rare comet, NEOWISE came closest to the sun after 6800 years, offering visibility, but its view was ruined due to the presence of Starlink satellites (presently, they are only 540 in number. One can imagine the situation when it increases to 40,000!). Further, the NEOWISE satellite-chasers have reported that the starlink satellites are leaving bright smears across their snaps, thereby restricting their view

It is clear that space is such a void where everyone is free to explore. Everybody reserves a right to do research on the planetary behaviour, movements and phenomena Ejusdem Generis. A corporation has unfettered powers to send any number of satellites into space but at the same time, astronomers also have the right to explore the outer space. Presently, there is no legislation which deals with this issue of encroachment of rights.  A lack of proper legislation to this effect is begetting a situation of conflict between them. Hence, there is an urgent need to curb the issue of encroachment of rights in space. There must be a legislation to ensure that one exercises one’s rights in such a way that it does not infringe upon the rights of another i.e. a corporation uses the space in such a way that it does not comes in the way of ground based astronomy.

Sarah Bordelon, an environmental lawyer familiar with NEPA cases observes that if astronomers are affected in their work and the project is blocking their ability to do their jobs, then they would have a locus standi, at least in the US Federal court.

Questioning the FCC’s Approval

For these kinds of operations to take place in the United States, the Federal Communications Corporation (FCC), is required to give approval taking into account the National Environment Policy Act, 1970 (NEPA).

Sec. 2 of this Act tells that it was enacted to determine a national policy which will encourage productive and “enjoyable harmony between man and his environment”. Apart from this, the act also seeks to promote efforts which will prevent or eliminate damage to the environment and biosphere.

According to a statement by the International Dark Sky Association, the NEPA act needs a modernization and that the understanding of the ‘human environment’ in NEPA should be extended to consider the orbital space around the Earth. Hence, the author believes that while providing licence, FCC did miss out on some of the environmental concerns:-

View of the night sky

Owing to the nature of the satellites being sent, the view of the night sky will be hampered. The satellites  form a trail of light beam which shines brighter than the stars and planets. There are about 6000 stars that are clearly visible to the naked eye above Earth. These natural stars and constellations provide viewing pleasure to the people on earth. An important question to consider here is whether it can be challenged in the federal court that failing to consider the night sky within the ambit of NEPA warrants a review of the approval given.

Title 40, chapter 5 of the Electronic Code of Federal regulations talks about the regulations for protecting the environment. Section 1508.8 of this regulation says that both direct and indirect effects to the environment can warrant a review of the NEPA. Indirect effects within its definition include inter alia ecological, aesthetic and cultural effects whether direct or indirect or cumulative. View of the night sky is counted as nature’s aesthetic beauty, interfering with which can be a basis for the Federal court to review the approval given by the NEPA.

Debris Management

Another environmental concern is the management of debris that would be generated by the satellite constellation. The debris generated due to the dysfunction of satellites, can collide with other satellites roaming in the space such as The International Space Station (ISS). An aggregation of 42,000 satellites can also be a cause for creating a large amount of space junk that can be a hurdle for future research in space. When the chance of a collision is greater than one in 10,000, the ISS is moved. It has been estimated that if all of the mega-constellations are launched, 67,000 annual collisions would take place. This generates a grave risk of space debris being accumulated causing concern for the space environment.

The major problem with these kinds of launches is that there is no maximum limit to the number of satellites being sent. Starlink is not the only project. Several other companies such as OneWeb, Telesat and Amazon’s Project Kuiper are also planning to send around 46 thousand satellites into the Lower Earth orbit. According to the United Nations Office for Outer Space Affairs, this number is more than five times the amount of objects been sent in space in the past 60 years. SpaceX has started launching the satellites before the law could creep in. There is no regulation  to prevent them from launching an unlimited number of satellites, which would be the death knell for ground-based astronomy.

These mega-constellations can also be a cause for Kessler syndrome to take place. It is a scenario in which due to the density of objects in the lower earth orbit, collisions between objects causes a cascade where each collision generates space debris which increases the likelihood of further collisions. This can be a reason for space activities being rendered impractical for generations to come. Every space probe (satellite, manned mission inter alia) has the potential to produce space debris and the likelihood of Kessler syndrome becomes more, when the number of satellites increases.  There are no international laws as of now to address such scenarios.

CONCLUSION

A company sending around 40,000 satellites, can in future even lakhs of of satellites. Competing with this, others will also try to do the same for profit maximisation. The question is what is the limit? Such projects inter alia will infringe upon the rights of astronomers, the right of common people to enjoy the view of night sky and create a large amount of space debris. Hence, there is a strong need to have domestic legislation and an international consensus  to tackle these issues.

The author is a student at National Law University Jodhpur.