Environmental Reviews of Satellites Considered Long Shot
Viasat's argument the FCC should do a National Environmental Policy Act (NEPA) review of SpaceX's pending license modification (see 2012230003) comes as the incoming Joe Biden administration is likely to put more emphasis on NEPA requirements. However, that may not ripple out to the FCC, environmental and space law experts told us.
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Vermont Law School professor Patrick Parenteau said more stringent environmental reviews and stronger NEPA application will be a priority for Democrats, but the focus will be in areas of climate change and the energy industry. He said it's not likely to be a big policy priority with the FCC, though "it's not frivolous" to suggest NEPA should apply at least to low earth orbit, where satellites can be light pollution and orbital debris concerns.
Viasat's petition isn't likely to go far, since NEPA doesn't apply to outer space, said Space Law & Policy Solutions' Michael Listner. He said the risk is that if the petition is denied and Viasat challenges that in court, NEPA could end up being applied not just to LEO satellites but also geostationary ones. The FCC didn't comment Thursday.
Some see the time having come for NEPA to apply to space. "The 'human environment' envisioned in the text of NEPA arguably includes the orbital space around the Earth, in which case spacecraft of all varieties should be subject to environmental impact assessments," said John Barentine, public policy director for astronomy advocacy group International Dark-Sky Association. Commenting to the White House Council on Environmental Quality (CEQ) last spring, IDA said due to growth of commercial space and mega constellations, "near-Earth space must necessarily be explicitly included as an integral component of the environment under NEPA."
Barentine told us it's within FCC purview to reverse its 35-year-old stance that a NEPA categorical exemption covers satellite systems and to determine NEPA review is needed due to concerns about the effects of satellites on optical and infrared astronomy, radio astronomy, space debris "and access to the night sky for all manner of reasons, including for people whose cultural or religious practices require it." He said he's "encouraged" the Biden administration might take a more expansive view of NEPA: "I think this issue is now very much in play."
The agency has "huge, broad, sweeping" categorical exclusions to NEPA for most things it does, said Cleveland State University environmental law professor Heidi Robertson. Changing that would require an administrative process of notice and comment, with the CEQ approving the changes, she said. The Biden CEQ likely will review how each federal agency adheres to NEPA, said Pace University environmental law professor Nicholas Robinson. Some, like the Army, "do so rather well, and others that seek to avoid doing so," he said.
The FCC believes satellite authorizations don't have environmental effects necessitating environmental review, and Viasat hasn't shown a reason to change that precedent, SpaceX said in an Intentional Bureau filing Wednesday. It said Viasat's "desperation to mislead the Commission into harming competition [is based on] warmed-over and debunked claims as well as material misrepresentations." It said evidence, including the technical studies on which Viasat is relying, shows the proposed license modification would decrease the constellation's effects on the night sky and the risk of satellite collisions. SpaceX seeks approval to move more than 2,800 planned satellites to a lower orbit (see 2007140001).
"Many experts have recognized the 'game changing' nature of the risks the associated with mega-constellations like Starlink," Viasat emailed. "These are serious issues that require a hard look under federal law and by any administration, and we are confident the FCC will do just that."