16 January 2020
The FCC’s Approval of SpaceX’s Starlink Mega Constellation May Have Been Unlawful
By Jonathan O'Callaghan
A new paper suggests that the agency broke U.S. environmental law in its approval of the satellites and that if it were to be sued in court, it would likely lose
A battle for the sky is raging, and the heavens are losing. Upcoming mega constellations of satellites, designed to blanket Earth orbit in spacecraft beaming high-speed Internet around the world, risk filling the firmament with tens of thousands of moving points of light, forever changing our view of the cosmos. Astronomers who rely on unsullied skies for their profession and members of the general public who enjoy the natural beauty of what lies above stand to lose out. The arrival of such a large number of satellites “has the potential to change our relationship, and our connection, with the universe,” says Ruskin Hartley, executive director of the nonprofit International Dark-Sky Association. But with no binding international laws or regulations in place to protect the night sky, anyone opposing the advancement of mega constellations is surely fighting a losing battle. Right?
A new paper to be published later this year in the Vanderbilt Journal of Entertainment and Technology Law argues that the Federal Communications Commission—the agency responsible for licensing the operation of these constellations in the U.S.—should have considered the impact these satellites would have on the night sky. In ignoring a key piece of federal environmental legislation, the FCC could be sued in a court of law—and lose—potentially halting further launches of mega constellations until a proper review is carried out.
“Astronomers are having these issues [and think] there’s nothing they can do legally,” says the paper’s author Ramon Ryan, a second-year law student at Vanderbilt University. “[But] there is this law, the National Environmental Policy Act [NEPA, pronounced ‘Nee-pah’], which requires federal agencies to take a hard look at their actions. The FCC’s lack of review of these commercial satellite projects violates [NEPA], so in the most basic sense, it would be unlawful.”
Enacted in 1970, NEPA obligates all federal agencies to consider the environmental impacts of any projects they approve. Such impacts cover a variety of issues, from the effects of casino barges on rivers to any project’s contributions to climate change—the latter has been a recent target of the Trump administration’s regulatory rollbacks. The reviews can take multiple years, producing anywhere from hundreds to thousands of pages of paperwork. Federal agencies can circumvent NEPA, however, if they are granted a “categorical exclusion” for some or all of their activities—usually by arguing that such activities do not impact the environment and thus do not require review. The FCC has had a sweeping categorical exclusion since 1986 across almost all of its activities—including its approval of space projects—despite other agencies involved in space—most notably NASA—being required to conduct NEPA reviews.
“There are other agencies that use categorical exclusions, but I don’t think there is one that’s as broad as this,” says Kevin Bell, staff counsel at Public Employees for Environmental Responsibility (PEER), a nonprofit organization that works with government whistle-blowers on environmental issues. “It is a policy that was designed for another time, before large scale space exploration.”
In light of the concerns about the impacts of satellites on the night sky, Ryan says, this categorical exclusion would be unlikely to stand up in a court of law. SpaceX alone has been licensed by the FCC to launch 12,000 satellites in its Starlink constellation in the coming years, dwarfing the current number of approximately 1,500 active satellites in orbit—and the company has plans for 30,000 more. It has already launched about 180 Starlink satellites, with another 1,500 scheduled for 2020. Following the first launch of 60 satellites in May 2019, many observers were surprised by their brightness at dawn and dusk—popular times for both astronomy and simple stargazing. “That’s the time that most people enjoy the sky,” Hartley says. “These new satellites are brighter than 99 percent of [those] in orbit at the moment. And really, that’s the root of this concern.”
In an e-mailed statement, a spokesperson for the FCC said the agency rejects Ryan’s theory. “The FCC’s action in unanimously approving the SpaceX deployment was entirely lawful,” the spokesperson said. “The Order provides ample legal rationale based on the public record—which incidentally did not include any comments along the lines of these after-the-fact criticisms.”
In its reasoning for its categorical exclusion, the FCC states that its actions “have no significant effect on the quality of the human environment and are categorically excluded from environmental processing.” Ryan says that the FCC may have been wrong in this assessment, however. “The FCC has never performed a study showing why commercial satellites deserved to be classified as categorically excluded from review,” he says. “And the evidence shows that these satellites are having an environmental impact. If the FCC were sued over its noncompliance with NEPA, it would likely lose.”
There is considerable precedent for such court action being taken. Sarah Bordelon, a Nevada–based environmental lawyer at the law firm Holland & Hart, who is familiar with NEPA cases, says that more than 100 of them are filed every year. One NEPA case in the 1980s saw the National Institutes of Health defeated by environmental groups on the question of the lawfulness of the agency’s approval of genetically modified bacteria for crops without proper review, which could have released recombinant DNA into the environment. In 2000, the U.S. Army Corps of Engineers lost a case in which it had approved licenses for gambling barges in Mississippi without proper NEPA review.
A key question is whether the night sky could be argued to fall under NEPA in a federal court. According to Section 1508 of the policy, there are both direct and indirect effects that can warrant NEPA review, with the latter including “aesthetic, historic, [and] cultural” ones. Ryan says that these factors could, in a court of law, be argued to apply to the night sky. “I definitely think that the night sky would fall under [that],” he says.
Bordelon says that while she is not aware of any previous NEPA cases involving space, Ryan’s argument is plausible. “It’s not a crazy argument,” she says. “If there’s a significant issue that the agency missed, they will probably lose. If astronomers are affected in their work, [if] it’s blocking their ability to do their jobs, then they would have standing, at least, to get into federal court.”
For its part, SpaceX has belatedly attempted to address some of the concerns of the astronomy community. Its latest batch of 60 Starlink satellites, launched on January 6, included one that had been coated in an “experimental darkening treatment” designed to reduce the brightness of the satellites, according to the company, although it is unclear how effective this treatment has been. But even if SpaceX can solve the issue for its satellites, there is a lasting concern that several other companies with planned mega constellations—such as Amazon’s Project Kuiper constellation of more than 3,000 satellites, currently under FCC review—may not be as willing to do so. In the past two years, the FCC has authorized 13,000 satellites from 10 companies, including SpaceX.
If the agency were to be sued over its noncompliance with NEPA, the impacts are not entirely clear. It is possible that while a lawsuit made its way through court, which can take several years, an injunction could be filed to prevent the launch of any more satellites—members of Starlink or otherwise—licensed by the FCC. If the agency were to lose, it could be asked to reevaluate existing licenses and perform appropriate NEPA reviews, Bordelon notes. Or it could simply have to do such reviews for all forthcoming satellite applications. “That’s something the parties would be arguing before the judge,” she says. All told, the whole process could take years to complete.
Ryan says that the FCC could avoid such lengthy legal action by changing its practices going forward. “To prevent a challenge in court, the FCC should assess the environmental impact of commercial satellite projects using NASA as a model,” he writes in his paper. “By doing so, the FCC would create standards in the commercial satellite industry that promote economic growth and stability while complying with Congress’ mandate to the federal government to proactively consider the environmental impacts of its actions.”
The FCC spokesperson said the agency was “aware from press articles and reporters’ inquiries that there have been some concerns raised about the effect of satellites in the Starlink system on observations by astronomers at optical wavelengths.” But, the spokesperson noted the issue had “not been raised in any FCC proceedings.”
For astronomers and members of the general public concerned about mega constellations, however, Ryan’s paper may provide a glimmer of hope. It could be argued in court that the night sky is protected under NEPA and, at the very least, federal agencies such as the FCC could be encouraged to consider the impacts their projects will have on that shared resource in the future. “I think there is a tolerable NEPA argument that can be made,” Bell says. “The beauty of the night sky [and], for astronomers, the ability to conduct science by doing observations of the night sky are both impacts that would be covered by the statute. So there should be a case there.”
This article has
been updated to
its approval of