NASA's UARS, shown from space.

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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One Response to Heads Up, the Sky Is Falling

  1. Timothy Van Hal says:

    Satellites in space crashing to earth, and indeed possessions in space as a whole, seem to bring a Pandora’s Box of legal issues rarely discussed. Who owns a satellite when it is in space? Is it the launching country which would be held liable for its fall or the private company who paid to put it in orbit? Who can legally defend the satellite against potential attack or subterfuge, and who is obligated to do so? Does the current international framework, where a launching country is liable for any damage caused when the satellite falls back to earth, remain well-suited to a market that is increasingly shifting from public to private?

    A particularly fascinating inquiry to me is whether it would be possible to abandon a satellite in space. It seems that the answer could be yes as it is not real property, but it poses some unique challenges. It is believed by many that a satellite placed in orbit will stay in orbit forever and only fall to earth when designed to do so or as a result of miscalculation. In reality, however, the orbit of satellites decay progressively due to trace amounts of air and other particles striking the satellites, which, over time, decreases their velocity enough that they fall from the sky. In other words, the old adage remains true even in orbit: what goes up must come down. Given this fact, should it be possible to abandon a satellite? What if it no longer has any use and has been in orbit for many years? Does ETA until reentry matter? What if another company wants to reclaim it in order to recommission it or use it for already-in-orbit parts (launch costs to put a satellite in orbit is often more than $2000 per pound)? All of these questions have yet to be answered.

    Sam, your article proved very interesting and I remain excited to see how space law develops as the private market progresses.