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It was only days ago that NASA’s Upper Atmosphere Research Satellite (“UARS”) fell to earth, fortuitously landing in a remote area of the Pacific Ocean. Now, the German Aerospace Center reports that another satellite (“ROSAT”) is headed our way, with estimates placing its descent in early November. Frighteningly, as much as 1.6 tons of ROSAT is expected to survive the scorching re-entry into the atmosphere and reach the Earth’s surface.
The world was first made aware of the dangers of falling space debris with the infamous crash of Skylab in 1979, which largely disintegrated over the Indian Ocean. Nevertheless, over 1,500 pieces of the satellite were recovered in or near the small Australian coastal town of Esperance. Though no citizens were injured or property damaged, the town did issue the United States a $400 littering ticket for clean-up expenses.
While the Skylab threat has largely faded from our memory, the recent events of UARS and ROSAT once again raise an important question: if space debris were to cause harm to an individual or property, who is liable? Truthfully, the chances of any particular piece of space matter causing injury are quite low. In fact, NASA estimated the probability of UARS hitting one of Earth’s seven billion residents at 1 in 3,200. However, the frequency with which these events occur is rising. Currently, there are over 19,000 pieces of “Large Orbital Debris” circling the Earth, with an average of one piece falling to the surface each day. This number is only growing, as it is estimated that in the next decade over 1,200 more satellites will be launched into orbit. Thus, the question may not be IF such debris causes damage, but WHEN.
So who is liable? In the case of UARS and ROSAT, the Convention on International Liability for Damage Caused by Space Objects (ratified by the United States, Germany and 80 other nations) declares that any “launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight.” However, Article VII exempts a launching state from liability to its own citizens. Thus, under the agreement, the United States government would have been liable if UARS crashed in Toronto, but not Manhattan.
In the latter hypothetical, it is unclear whether a sovereign immunity defense would insulate the United States from liability. The Federal Tort Claims Act (“FTCA”) provides a cause of action for private persons against the government, so long as it is “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Thus, the FTCA does not apply to uniquely governmental functions — arguably a characteristic of space exploration even 20 years ago. Today, however, over one third of satellite launches are private commercial ventures, which may be sufficient to provide private parties standing under the FTCA.
In any case, the question still remains whether private companies may be held liable when their commercially operated satellites cause damage on Earth’s surface. Though there is no case law in this matter, it certainly seems plausible that a negligence claim against satellite operators may fit well within the parameters of tort law. In that case, punitive damages may be appropriate to incentivize safer methods of decommissioning satellites. However, the public policy implications seem to call for a different result — namely, limiting liability to compensatory damages. Under a basic economic rationale, in order to effectuate change amongst satellite operators, punitive damages would have to be astronomical due to the extreme rarity of a harmful event. Furthermore, the social, scientific, and technological value that satellites provide is practically immeasurable. To increase the development costs for satellites by requiring more safety mechanisms — essentially a drag on innovation — would arguably cause more societal harm than it prevents.
Perhaps the United States, at least symbolically, agrees — it never paid its $400 littering ticket.
– Sam Beutler
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