MIDLAND, Texas (Legal Newsline) - The idea of buying a ticket to space seems like something that would play out in a summer blockbuster movie.
Companies like Virgin Galactic, XCOR Aerospace and Blue Origin have been working for several years to change that. They not only need to develop and test technology that sends ordinary people to space at a relatively affordable price, but they must also navigate an uncertain legal and regulatory environment before space tourism can get off the ground.
Jay Gibson, president and chief executive officer of XCOR, a spacecraft and rocket engineering company based in Midland, Texas, contends that XCOR’s current challenge is funding. While there are laws and regulations in place to encourage investor confidence in the industry, he says “it takes a bold investor to get involved in the rocket business.”
According to the Federal Aviation Administration, which regulates the U.S. commercial space transportation industry, companies conducting commercial spaceflight operations must ensure that participants are informed of the risks associated with those operations. Companies must also obtain written consent from spaceflight participants that demonstrates acceptance of those risks.
The Commercial Space Launch Amendments Act of 2004 instituted these regulations and also introduced a “learning period” to prevent the FAA from imposing stringent safety regulations that could potentially stifle the growing industry.
An FAA study of launches in 2009 showed that the U.S. commercial space transportation industry generated nearly $208.3 billion – an amount expected to grow as companies continue to introduce new innovations related to commercial spaceflight.
Gibson points out that liability waivers for spaceflight participants are similar to what is standard for risky activities like skydiving, supersonic jet flights and riding in hot air balloons. Participants give informed consent, acknowledge the risks and promise not to sue if something goes wrong.
“The difference is that many skydives, jet flights and balloon rides have happened,” he said. “Nobody has done piloted suborbital space flight since 2004, and that was done by professional test pilots flying solo.”
Gibson adds that the people who have signed up to fly on Lynx – a piloted, two-seat, fully reusable liquid rocket-powered spaceplane that takes off and lands horizontally – understand the risks as well as possible, given those circumstances.
Still in development, XCOR’s Lynx could eventually take both paying travelers and scientific payloads into space.
Virgin Galactic, founded by Richard Branson and located in Las Cruces, N.M., and Blue Origin, founded by Amazon.com founder Jeff Bezos in Kent, Wash., are also developing and testing new reusable suborbital launch vehicles that could be used for space tourism.
Virgin Galactic did not respond to requests for comment. Blue Origin declined to comment.
The most recent update to commercial spaceflight policy and regulation came in the Commercial Space Launch Competitiveness Act in 2015, which was enacted to “facilitate a pro-growth environment for the developing commercial space industry by encouraging private sector investment and creating more stable and predictable regulatory conditions.”
In addition to extending companies’ learning period to 2023, the law permits companies and the government to continue sharing the risks of space launch until 2025.
Under the law, a company licensed by the FAA must purchase insurance covering third-party claims up to $500 million. The federal government compensates the company for losses between $500 million and $3 billion, while the company is responsible for any third-party claims more than that amount.
The law also includes a number of other provisions, including the right of U.S. citizens to own or sell asteroid resources or other resources that they obtain while in space.
The Commercial Spaceflight Federation, a commercial spaceflight industry association, commended Congress for passing the law and said in an article after President Barack Obama signed it in November 2015: “By extending the indemnification regime and learning period, addressing issues of spaceflight participant liability, and laying the legal framework for extraterrestrial resource extraction, this business-friendly piece of legislation will surely be remembered as setting the stage for even more opportunities and growth in commercial space.”
Linda Lipsen, chief executive officer of the American Association for Justice, an advocacy and lobbying organization for the nation’s trial lawyers, disagreed, saying in a statement before the bill’s passage that it would force victims and taxpayers to pay the costs of any private space travel crash or disaster.
“The bill jeopardizes both civilians on the ground and the passengers, whose right to hold anyone accountable would be eliminated,” she said. “Industries that lobby for immunity from accountability might as well hang up a sign saying they don’t trust themselves to be safe.”
While the current legal and regulatory environment may seem uncertain, the future of space tourism faces even more questions.
Joanne Gabrynowicz, an internationally recognized space law expert and editor-in-chief emerita of the Journal of Space Law, explains that current laws and regulations address only suborbital spaceflight.
Suborbital spaceflight occurs when a spacecraft leaves the earth, travels to a high altitude and then returns to the earth after a short time. Orbital spaceflight, on the other hand, occurs when a spacecraft is placed on a trajectory with sufficient velocity to enter into orbit around the earth.
“There is no part of federal government that has jurisdiction for commercial orbital activities,” Gabrynowicz said. “That will require congressional action.”
“Without those regulations, it’s an uncertain environment,” she added. “How a company chooses to address the lack of regulations is part of their business plan.”
According to the FAA, companies are aiming to launch people on short suborbital trips within the next couple of years.