On Launching Environmental Law into Orbit in the Age of Satellite Constellations

In September 2022, the Federal Communications Commission adopted a new rule changing the deorbiting timeframe for satellites ending their missions in low Earth orbit from a twenty-five-year recommendation to a five-year legal requirement. The adoption of this rule, which seeks to cultivate a sustainable orbital environment for satellites, followed the United States’ July 2022 National Orbital Debris Implementation Plan, which tasked federal agencies with reviewing the effectiveness of their orbital debris-related rules. In the wake of the Supreme Court’s June 2022 West Virginia v. EPA decision, however, federal rulemaking in the area of orbital debris may not survive judicial scrutiny in the absence of explicit congressional authorization to do so. The purpose of this Article is to provide arguments for why Earth’s orbital environment should be protected under the National Environmental Policy Act and to provide draft legislation that is responsive to both the Orbital Debris Plan and the Supreme Court’s recent EPA ruling, which will enable FCC rulemaking in the area of orbital debris

Rising to China\u27s Challenge in the Pacific Rim: Reforming the Foreign Corrupt Practices Act to Further the Trans-Pacific Partnership

It is a commonly held myth that the rise of U.S. global economic hegemony rests upon a free trade philosophy. On the contrary, protectionist trade policies were central to galvanizing American industrialization. This misconception lies at the heart of why the trade liberalization policies enforced under the U.S.-led Bretton Woods institutions, the World Bank and the International Monetary Fund (IMF), brought ruinous results to many poor countries. The subsequent decline in credibility of these institutions challenges their continued relevance and opens a space for powerful nations to fashion alternative rules of trade. China is a member of the IMF but has only 3.8% of the voting share of the institution—the same power as Italy, whose economy is five times smaller. Consequently, China is now developing its own set of financial institutions to rival the Bretton Woods institutions and is building Free Trade Agreements (FTA) with countries in its emerging sphere of influence in the South China Sea. The reduction in credibility of the Bretton Woods regulatory order has affected the U.S.’s outsize ability to influence the economic architecture of global trade. As a result, the United States is seeking to meet the challenge of growing Chinese power by establishing its own network of FTAs. FTAs have become a key foreign-policy plank used to structure the architecture of global trade and increase geopolitical influence. Notably, FTAs contain provisions that maintain protective tariffs on imports from nonmember states, which run counter to the global free market philosophy of the Bretton Woods institutions. The U.S. and China are thus engaged in a zero-sum game to rewrite the rules of global trade for the post-Bretton Woods world. The goal is to establish enough FTAs to achieve regional economic hegemony. This “pivot to Asia” animates U.S. interests in leading ongoing negotiations among twelve Pacific Rim nations for the Trans-Pacific Partnership (TPP), which will operate in the Chinese sphere of influence and redesign the economic architecture for 40% of global trade. While traditional critics of FTAs highlight the potential negative effects on U.S. labor and the dangers of increasing corporate power, the animating force of the TPP is not built upon a free trade philosophy. Rather, the animating force rests upon the U.S.’s realpolitik goal of restraining the rise of Chinese hegemony and ensuring adherence to the international rule of law, customs, and norms established during the Bretton Woods regulatory order. Notably excluded from the TPP negotiations is China, which covets regional economic hegemony. China’s exclusion from the TPP negotiations is not an accident, as recent Chinese initiatives aimed at creating parallel financial institutions represent an unambiguous effort to displace Western institutions and ideologies. These actions are consistent with the public statements of China’s paramount leader, President Xi Jinping, who cares little for the Bretton Woods regulatory order, which China played no role in establishing, and even less for its Western principles. The success of the U.S.’s geopolitical strategy, however, is threatened by the overzealous, extraterritorial application of a U.S. criminal law designed to curtail corporate bribery of foreign officials: the Foreign Corrupt Practices Act (FCPA). The Obama Administration interprets the FCPA in a way that criminalizes the giving of gifts to foreign business persons employed by state-run enterprises. The Obama Administration’s draconian enforcement of the FCPA threatens to undermine the success of the U.S.’s TPP policy objective, which is to design an economic architecture to counterbalance China’s regional and even global economic ambitions. It does so by disincentivizing U.S. corporations from investing in the Chinese sphere of influence. The FCPA prohibits U.S. citizens, corporations, and their employees from giving “anything of value” to “foreign officials” in order to secure business advantages. The policy objective of the FCPA is to deter bribery to better aid the U.S. in building international economic and diplomatic alliances—an objective similar to that of the TPP. However, deeply-rooted cultural norms of gift-giving and the maintenance of personal relationships in many Asian TPP member states create a business culture where the FCPA’s overly-broad conception of bribery occurs in the regular course of business. Gift-giving that would be termed bribery under the FCPA is not only common in the Pacific Rim, but is accepted as a valid means of doing business. Thus, the vague language of the statute creates a compliance minefield for U.S. businesses operating in the Chinese sphere of influence. The FCPA, which calls for criminal fines of up to $2 million per violation, is strictly enforced by the courts. Recent cases have resulted in fines of over$1.6 billion, and courts have sentenced Americans to prison terms of up to fifteen years for major violations. Moreover, an indictment alone, not even a conviction, can lead to suspension of the right to transact business with the U.S. government. The Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have significantly increased enforcement efforts in recent years. Between 2003 and 2006, for example, the DOJ and SEC brought a total of thirty two enforcement actions. By contrast, in 2010 alone, the DOJ and SEC brought seventy-four enforcement actions, up 85% from 2009. In addition, the amount of fines has increased dramatically over the past five years. In 2007, U.S. authorities levied FCPA-related fines of $87 million. In 2010, the DOJ assessed$1.8 billion in aggregate FCPA penalties, including fines and disgorgements. Moreover, a company cannot pay fines levied against individuals. The vague language and strict enforcement of the FCPA conspire to disincentivize corporations from entering those TPP markets that the U.S. perceives to be more corrupt, and thus where it enforces the FCPA most strictly. One of the most negative ways in which FCPA enforcement undermines the TPP is in its definition of what constitutes a “foreign official.” A federal court recently ruled that the question of whether an employee of a state-owned enterprise (SOE)44 is a foreign official is a fact-based inquiry based on the totality of the circumstances. Because SOEs are a primary feature of many TPP members’ economies, potentially labeling all employees of an SOE as “foreign officials” disincentivizes U.S. corporations from investing in the region, because all such individuals could be potential sources of FCPA liability. The purpose of this Article is to provide a realpolitik argument for why the TPP furthers the U.S.’s geopolitical objectives in the Pacific Rim, to define how the U.S’s enforcement of the FCPA undercuts those objectives, and to recommend reforms to the FCPA that will align its enforcement with the policy objectives of the TPP

Apologies All Around: Advocating Federal Protection for the Full Apology in Civil Cases

This Article joins the current debate regarding the proper relationship between apology and the law. Like Rule 408, this Article focuses exclusively on civil cases. This Article adds to scholarly debates about apology and law by giving legal change a final push. Namely, this Article provides language, and a rationale for the language, that makes federal protection for “full apologies” in civil cases possible. In particular, this Article considers the aforementioned limitations of Rule 408 and provides a critique of its effectiveness in facilitating its modus operandi of encouraging private settlements between adversarial parties. Part II discusses apologies generally and considers the role they can play as a dispute resolution tool. Part III then proposes an amendment to Rule 408, which would prevent full apologies offered during compromise negotiations from being admissible in civil cases. The amendment to Rule 408 that this Article proposes also furthers the underlying policy priority of Rule 408 by encouraging private settlements. Part IV provides support for the proposed amendment to Rule 408 by examining empirical evidence that suggests this amendment would, in fact, do more to encourage private settlements between adversarial parties than Rule 408 currently does. Part V describes apology exclusionary rules that states have adopted and gauges the effectiveness of these exclusionary rules. Part VI addresses critiques of the fully protected apology, which assert that such an exclusionary rule is not only fraught with moral ambiguity, but rewards bad actors engaging in strategic tactics by offering insincere apologies, thereby allowing them to escape proper punishment. This section reconsiders the resistance to the fully protected apology and suggests that this resistance stems from two ideas—the propensity of U.S. law to quantify harm in economic terms, and the belief that the United States has a naturally litigious culture. These critiques miss the point, as studies suggest, that the fully protected apology is both good business and consistent with U.S. cultural values. Concluding Part VII offers final thoughts on this Article’s proposed amendment to Rule 408

On Who Should Pay When Orbital Debris “Trickles-Down” in a Tragedy of the Low Earth Orbit Commons

In March 2023, NASA released the most rigorous and wide-reaching orbital debris analysis in the space law literature that provides a cost-benefit analysis of removing orbital debris from low Earth orbit (LEO), a region of the Earth’s environment with no environmental regulation. NASA contextualized the motivation in releasing this report as rooted in the exponential growth of the commercial satellite industry, noting that “the number of tracked and untracked debris in LEO is projected to grow . . . even if no new satellites are launched into space, yet launch traffic is likely to increase in the coming decade compared to recent history.” Similarly, in a May 2023 Congressional Budget Office (CBO) report, the CBO argued that the “number of satellites operating in LEO has increased significantly in recent years, driven in large part by commercial [satellite] constellations,” which are networks of identical satellites whose orbits and positions are coordinated to accomplish a given mission, such as providing global broadband internet. Underscoring the dangers of launching thousands of satellites into a finite orbital space with no environmental regulation, SpaceX, who operates the world’s largest constellation, Starlink, reported that from December 2022 to May 2023, Starlink had to perform 25,299 collision avoidance maneuvers in LEO. This number of collision avoidance maneuvers is double the number of maneuvers reported by SpaceX during the previous six-month period, which is alarming to industry experts. Concerning the risks that satellite constellations pose to the sustainability of LEO, experts note that the global space market grew by 8% to $424 billion in 2022 and is expected to be valued at more than$737 billion by 2030, which is a market that will certainly be impacted if LEO is enshrouded in an impenetrable maelstrom of orbital debris moving at speeds seven times faster than a bullet. Cross-referencing the most current orbital debris numbers from the European Space Agency with NASA’s estimated costs of $300 per debris removed with ground-based lasers, and$6,000 per debris removed with space-based lasers, the total estimated cost to remove the 1,036,500 trackable pieces of orbital debris from LEO is from $310 million to$6.2 billion. On the other hand, the cost to remove the estimated 130 million pieces of currently untraceable orbital debris from LEO is from $39 to$780 billion, all of which is a sizeable liability for the United States (U.S.) government to allocate to the U.S. taxpayer. Indeed, under both the Outer Space Treaty and the Proposed ORBITS Act of 2023, which is a bipartisan bill recently unanimously passed by the U.S. Senate, the U.S. taxpayer will be left with footing the bill for remediating the debris left behind by U.S.-authorized commercial satellite operators. Describing the LEO environment as a classical “tragedy of the commons” and drawing from studies conducted by NASA, the Government Accountability Office, the CBO, United Nations, and others, the purpose of this article is to tackle the question of who should pay when orbital debris “trickles down” in a manner that compromises Earth’s satellite-reliant infrastructure and otherwise causes damage to Earth’s environment, persons, and property. This article then recommends specific language to amend Title III of the Communications Act of 1934, which created and charged the Federal Communications Commission (FCC) with regulating commercial satellite systems, to establish a satellite constellation “orbital use fee” (OUF), which the FCC will levy as a requirement for receiving a license to operate in LEO. This OUF will then fund orbital debris remediation projects, related research, and remediation of the environmental impacts of satellite constellations. Given that the U.S. leads the world in the total number of satellites in space per country, and SpaceX will own more satellites than each country in the world combined once it fully deploys Starlink, this article concludes by arguing that the U.S. is uniquely positioned to engage its allies in forging the foundation of customary international space law. First, through passing into law the types of model legislation provided in this article, which will then form the basis of bilateral and multilateral treaty negotiations with both current and potential space-faring nations. This legislative and diplomatic strategy will help to operationalize the 1967 Outer Space Treaty (OST) proclamation establishing space as the “province of all mankind,” and promote its peaceful use and exploration for the “benefit and in the interests of all countries.