In a single decision, the Federal Communications Commission (“FCC,” “the Commission”) authorized SpaceX to operate more satellites in 15 years than have been launched, total, in all of human history—and it did so without assessing the environmental impacts of that dramatic authorization.
By design, these satellites will be deployed into low-earth orbit (LEO), function for a few years, and then burn up in the earth’s atmosphere. The results could be startling: millions of pounds of harmful pollutants dumped into the atmosphere, where they will potentially affect climate change and harm the ozone layer, while the satellites may collide with each other and other objects in space, creating more space debris—and exponentially more collisions—that could ultimately make LEO unusable for a lifetime or more.
Understanding the National Environmental Policy Act
The National Environmental Policy Act (“NEPA”) requires environmental review before major federal actions. Congress enacted NEPA to ensure that federal agencies consider “the critical importance of restoring and maintaining environmental quality,” as part of “the responsibilities of each generation as trustee of the environment.” NEPA thus “places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action,” ensuring “fully informed and well-considered decision-making.”
To fulfill these goals, NEPA requires that federal agencies include “a detailed statement” regarding the environmental impact of any “major federal actions significantly affecting the quality of the human environment.” If the evidence submitted shows that the particular action “may have a significant environmental impact,” the agency must at least prepare an environmental assessment (“EA”) to determine whether a more rigorous environmental impact statement (“EIS”) is necessary.
Viasat’s arguments at the FCC and DC Circuit
The Commission itself conceded that under NEPA it must conduct at least an EA before issuing operating authority if SpaceX’s contemplated operations “may have a significant environmental impact.” We believe that legal standard was easily satisfied here. However, the Commission wrongly concluded that an EA was unnecessary here because it wasn’t certain exactly how bad this deployment might be for the environment.
Viasat and others thus sought legal clarity, explaining through hundreds of pages of briefing and more than 1,500 pages of academic studies and other exhibits, why SpaceX’s unprecedentedly large deployment of LEO satellites at the very least “may” significantly impact the environment from polluting the atmosphere to littering both space and Earth’s surface with dangerous debris. Indeed, as Viasat explained in dozens of filings at the FCC, and ultimately in an appeal at the DC Circuit, if there were ever a time for the FCC to conduct a NEPA review, this is it. And Viasat was not alone. One of the most reputable environmental groups in the world, the NRDC, wrote a blog post explaining why Viasat’s understanding of NEPA is correct. Prominent astronomers also filed an amicus brief at the DC Circuit similarly backing Viasat’s legal position.
Since the Commission’s Order, scientists, academics, and policy experts have continued to sound the alarm about the environmental impacts of a number of proposed LEO deployments, warning that they risk “multiple tragedies of the commons, including tragedies to ground-based astronomy, Earth orbit and Earth’s upper atmosphere.”
The DC Circuit’s decision
We appreciate the Court’s attention to this case, which has brought further significant attention to the issue of space safety and the impact new LEO satellite constellations may have on the environment. We believe that the Court’s decision and its choice to ignore the merits is a setback for both space sustainability and environmental protection. The resulting environmental damage may be incalculable.
Regardless, Viasat will continue to strongly advocate for space safety and further encourage all industry participants and relevant regulators to be responsible stewards of our shared orbital environment.