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Sally Ride’s 1983 launch as the first American woman in space nearly ended in disaster. On the mission’s third day, a small web of cracks appeared on the shuttle’s windshield. Something had struck the glass, penetrating its uppermost layer. Had the fragment pierced all the way through, the cabin would have immediately depressurized, killing all the astronauts inside.
It wasn’t a meteorite or other fearsome space object that struck the windshield. It was a paint chip, no larger than a person’s pinky fingernail.
No one knows where that paint chip came from, but it served as a warning that orbital debris–remnants of abandoned spacecraft circling Earth–is a very real problem.
Objects orbiting Earth hurtle through space at speeds upward of 17,000 miles per hour. At that velocity even tiny, seemingly harmless bits of junk become deadly missiles.
It’s not just astronauts who face danger. Commercial satellites, many of which become debris themselves at the end of their life cycles, provide an easy target for wayward trash in an ever- more crowded space environment.
In February, a defunct Russian satellite collided with a functioning commercial U.S. satellite operated by satellite-phone provider Iridium. The impact destroyed both satellites, launching more than 1,400 new pieces of debris into orbit. It was the first known collision between two complete satellites, NASA reported.
While orbital debris issues have been on the international regulatory radar for decades, February’s collision made it clear that it’s time to escalate mitigation efforts. By 2013, the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) plans to implement updated guidelines governing orbital debris mitigation. The immediate consequences of a collision between a satellite and a piece of junk could include Internet, phone and other service outages. But in the longer term, whole swathes of space could become so densely populated with debris as to become unusable, crippling an entire sector of the economy.
“Satellites touch every aspect of business life on the planet,” says Joanne Gabrynowicz, director of the National Center for Remote Sensing, Air and Space Law at the University of Mississippi School of Law. “And there’s no country that’s more dependent on them than the U.S.”
Space debris mitigation efforts have followed a slow build from the earliest days of the space program. The U.N. first drafted an orbital debris liability regime in a 1972 addition to its Outer Space Treaty. That document holds the launching country fiscally responsible for all harm caused by debris resulting from spacecraft licensed to it.
“Space debris is still considered to be a space object in legal terms, which allows us to allocate any damage caused by space debris to the launching state or the launching states,” says Frans von der Dunk, a space law professor at the University of Nebraska College of Law.
Over the next few decades, space debris raised few concerns. “Man-made space debris today poses little risk to ordinary unmanned spacecraft in Earth orbit,” stated COPUOS’s 2002 guidelines. The recommendations, developed by the committee’s Scientific and Technical Subcommittee (STSC), nonetheless recognized the need to preserve a sustainable space environment for the future.
Indeed, the concentration of space debris is intensifying rapidly. In 1990, the U.S. tracked roughly 4,700 objects 10 cm or larger in Earth’s orbit. This year, according to the State Department, it tracked about 19,000. Anything larger than 1 cm has the potential to seriously damage a spacecraft.
There are two primary levels of orbit around Earth–low-Earth orbit (LEO), primarily populated by government satellites, and geostationary orbit (GEO), which mostly hosts commercial satellites. LEO, the lower of the two orbits, is relatively self-cleaning, with most debris harmlessly re-entering the atmosphere. But what happens in GEO, stays in GEO. And technology hasn’t evolved to allow humans to do anything about it.
“We don’t have something that’s the equivalent of a space Hoover to vacuum it all up,” Gabrynowicz says. “So when debris propagates, it has the potential of limiting everybody’s access to space, and that’s why it’s so serious.”
Though COPUOS’s standards, which the U.N. General Assembly adopted in December 2007, are voluntary at an international level, many countries, including the U.S., co-opted them for their own mandatory national regulations.
The Federal Communications Commission (FCC) implements its satellite debris mitigation rules through licensing agreements, though it’s an area that’s still very much evolving, says Scott Pace, director of the Space Policy Institute at George Washington University and a former NASA official. To obtain a satellite license for GEO, the operator must present the FCC with an orbital debris mitigation plan that includes provisions for responsible end-of-life disposal, which typically includes launching the satellite into an unused area of space.
Even though the U.S. is ultimately liable for damage caused by any satellite licensed to its soil, a commercial operator that causes damage must then repay the government, von der Dunk says. The liability could include lost revenue from service disruptions or traffic rerouted to other satellites–as well as the cost of replacing a hugely expensive spacecraft. Then there’s the brand fallout from consumers who can’t place calls on their smart phones or listen to their satellite radios.
Under the Outer Space Treaty, the basis for liability in space is negligence. The plaintiff needs to demonstrate the defendant knew or should have known its satellite had the potential to become or release debris that could damage another spacecraft.
“That’s a pretty high standard in space,” Gabrynowicz says. “But the idea is that if you yourself are in space, you are a sophisticated actor. Otherwise you couldn’t be up there. So you have the wherewithal to figure out what went wrong.”
As for litigation resulting from orbital debris damage, like many things in space, it’s still an unknown, says Steven Baruch, head of Lerman Senter’s satellite and spectrum policy group. “You’re talking about an area over which no country has jurisdiction,” he says. “There are myriad issues that could be looked at.”
The Right Stuff
In-house counsel need to closely track these international developments, as the FCC will likely adopt them into future satellite licensing rules, von der Dunk says.
Pace recommends examining insurance policies to make sure they include a backup plan to divert traffic to another satellite in the event of a service outage. He also encourages in-house attorneys to monitor or even get involved with international discussion for the latest ways to contribute to a safer environment.
“It’s kind of like environmental issues,” he says. “If some companies obey the rules and are really strict, and other companies don’t, it’s not only a business cost differential, but it also creates a hazard. It’s in everybody’s best interest to keep it clean and sustainable.”