Climate Change Management in the Space Age

This Article is about how we can use space technology and regulation to help overcome adverse effects of climate change on Earth. It describes the growing use and importance of outer space technology for monitoring, understanding, and resolving the problems of climate change. It describes precedents for the current climate crisis, discusses relevant international space laws, and explains how they fit into the existing international laws on climate change. It emphasizes the oversight role of the United Nations (“U.N.”). It describes the heavy duties placed by current climate laws on the developed countries compared with the developing countries. It explains the situation and options of the United States, China, and the developing countries. Finally, it makes 11 recommendations toward resolution of the current stalemate. Defining climate change is a necessary first step. Virtually all states, including the United States, are parties to the 1992 U.N. Framework Convention on Climate Change (“UNFCCC”), which establishes the legal definition of climate change. The UNFCCC Article 1(2) definition of climate change is: “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.” The same definition of climate change applies to the 2015 Paris Agreement, which seeks to implement the UNFCCC. Climate change attributable to human activity thus is the subject of this Article. Climate change is one of the most complex legal issues ever to occur, because it affects life on the entire planet Earth. It is similar to another current problem, COVID-19, in having a paralyzing effect on all life on Earth. It differs from COVID-19 in that climate change effects have a longer time frame. Climate change involves many aspects of the laws of land, sea, and air as well as outer space. Climate change mitigation, similar to COVID-19 elimination, can only be resolved if all countries cooperate. Climate change may affect the current generation moderately, but it can make life unbearable for the next generations unless the current generation assumes responsibility for resolving the problems before they become permanent. Climate change is inherently an outer space problem because it involves the Sun and its effect on planet Earth. We have seen results of similar climate conditions on other celestial bodies, for example on the planet Mars. Experience with the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, which established global restrictions on harmful aerosols, shows that international climate change problems can be resolved. Today global warming and the related greenhouse effect is a much greater problem than the ozone hole addressed in the Montreal Protocol; but current earthly climate change contains global aspects similar to those referenced in the Montreal Protocol. The Montreal Protocol shows that nations can successfully agree to resolve this kind of problem and actually do it. The Sun is a cause of global warming on Earth. The 1967 Outer Space Treaty (“OST”) subjects the sun to international space law in that it is included within the definition of celestial bodies. The Sun is inherently an immense source of energy produced by continuous interior thermonuclear explosions. Part of that energy radiates through solar gas and magnetic storms to the surface of the Earth. It is important to keep in mind that current global warming is related to the Sun and that solar radiation is naturally changeable as it goes through phases like solar storms. Climate change is one of the most important problems facing life on Earth. Unless we manage to control climate change, human beings on Earth will be so adversely affected by the end of the twenty-first century that it will be extremely difficult to maintain human life. Space technology is an important tool for the control of climate change. Use of satellite technology to observe and control climate change on Earth is illustrated as follows: In 2018 a European Space Agency (“ESA”) satellite observed 120 metric tons of methane gas per hour streaming out of a natural gas well, part of a fracking enterprise in Ohio. The methane gas continued to stream out uninterrupted for twenty days. The total emission was twice the size of previously detected emissions. Only a satellite could observe the magnitude of this methane gas emission. Once the ability of the satellite to observe and measure the emission was discovered, it was employed to detect other large leaks of similar nature. Methane is natural gas which burns twice as clean as coal when burned to produce electricity. But when it escapes into the atmosphere, it may warm the planet Earth eighty times more than similar amounts of carbon dioxide (CO2). Subsequently, the leak in the Ohio well was fixed and the well is now back in operation. Orbiting satellites, like the ESA satellite described, are able to monitor similar hot spots on Earth by repeated overflights. “Studies of oil fields in the United States have shown that a small number of sites with high emissions are responsible for the bulk of methane releases.” One aspect of Earth’s uniqueness is the abundant life forms which it hosts. So far we have not found life elsewhere in the universe. Plans are now made on planet Earth to send human beings to the Moon and Mars and outer planets. Astronomers have located other planets that appear to be sufficiently like planet Earth, where human beings may be able to exist. But the unique requirements for sustaining human beings in outer space are a barrier which has not yet been overcome. The search to find other habitable planets like the Earth is becoming urgent. Melting ice causes the oceans to rise, thus reducing significantly the land areas on which humans can live. The increase in heat on Earth due to climate change, as well as the reduction in resources necessary for life on Earth, will restrict humans’ ability to thrive. This prospect makes it absolutely necessary to: (1) Prevent further climate change by removing and mitigating its causes; (2) Make human life on Earth possible in the different climate that is produced by climate change; and (3) Expedite current efforts to escape from planet Earth to other planets thought to be able to sustain life forms currently found on Earth

Outer Space: How Shall the World\u27s Governments Establish Order Among Competing Interests?

We are in a period of transition in outer space; it is becoming increasingly congested. As one example, small satellites are beginning to interfer with astronomical observations. The objective of this article is to examine and evaluate how the various outer space interests interact, coordinate or conflict with each other. This article examines legal order options and the consequences of choosing among those options

Profit or Safety: Where Is Outer Space Headed?

The space powers (the U.S., the European Space Agency (ESA), China, and Russia) are now preparing national space traffic regimes with insufficient regard for the Outer Space Treaty’s (OST) agreed “Principles Governing the Activities of States in Exploration and Use of Outer Space.” The rapidly growing traffic of satellites, resulting in space debris, and the scarcity of radio frequencies and related orbits create obvious dangerous situations. States, including the U.S., agreed in the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) on twenty-one Guidelines for Long-Term Sustainability of Space, some of which relate to space traffic management (STM). UNCOPUOS is also beginning work on common STM practices. Yet the United States’ space management policy—pronounced in two White House policy statements by former President Trump—anchors U.S. STM policy on a “light touch” management, which diverges from ongoing STM efforts in the UNCOPUOS, the ESA, and the Russo-Chinese outer space alliance. The two White House policy statements assign U.S. STM policy leadership to the Department of Commerce (DOC) based on the management of traffic data provided by private industry and government sources. The DOC contracted with the National Academy of Public Administration (NAPA) for a study of and recommendations on best STM management. NAPA’s report accepted the two White House policy statements and made recommendations accordingly but with insufficient consideration of international space law, guidelines, and subsequent policy priorities. This Article analyzes the NAPA Report, criticizing it for inadequate consideration of international space law and failure to adequately consider the interests of all stakeholders—in particular the science and astronomy communities. The NAPA Report pays insufficient attention to important government policies on climate change, energy, astronomy, and national security, which are top priorities of the current administration. The Article recommends adherence to applicable international law. It stresses that space traffic safety by the Federal Aviation Administration (FAA) is more important than space traffic promotion by DOC. It recommends (1) separating FAA regulation of operational management of safety in space from the promotion of the space commerce industry and (2) assigning a different administration in the Department of Transportation (DOT) to handle economic regulation and promotion. Doing so would adopt a separation policy similar to the one applied in air commerce. It then recommends the establishment of an international outer space agency to supervise international space traffic rules of the road. Finally, this Article suggests that U.S. commercial space policy decisions be made in the context of related U.S. policies on science, astronomy, climate change, and renewable solar energy

Interlocutory Appeal Procedures in Administrative Hearings

There are, therefore, substantial arguments for and against permitting interlocutory review of an examiner\u27s rulings. With so even a balance in principle, factual analysis of agency practices becomes critical. This study measures agency practice against the standard that hearing procedures must be fair, and unnecessary delay is as unfair to the parties and the public as are arbitrary and erroneous interlocutory rulings