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One small step for man, one giant step for the commercialization of the moon

In this Tuesday, April 15, 2014 photo, the

In this Tuesday, April 15, 2014 photo, the moon turns an orange hue during a total lunar eclipse in the sky above Phoenix. Photo Credit: AP

Maybe plans for the commercial exploration of the moon aren't so far-fetched after all.

The FAA, in a carefully worded policy statement, has essentially outlined a scenario by which a U.S.-based company - Bigelow Aerospace - could stake future claims to lunar property. That could be huge.

For nearly 50 years, ever since the 1967 UN Outer Space Treaty (signed by over 100 nations, including the United States), there has been unanimous international agreement that no nation could stake a sovereign claim to the moon for any reason.

Moreover, every nation's government has also been responsible for any "non-governmental entities" (i.e. corporations or citizens) that wanted to do so. And, as if that weren't clear enough, the so-called "Moon Treaty" of 1979 (signed by nine nations, but not the United States) clearly states that private ownership of the moon is forbidden.

But fast-forward 50 years, and we're suddenly having a serious discussion about returning to the moon. Eighteen entrants are still alive in the Google Lunar X Prize competition, which will award a $20 million grand prize to any team that develops a robotic device capable of landing on the moon, crawling 500 meters on, above or below the moon's surface and sending back HDTV "mooncasts" for people on Earth to watch. If all goes according to plan, we could even see a winning Google Lunar X Prize mission to the moon before the Dec. 31, 2016 deadline.

It's not just U.S. innovators who are getting involved - competitors from Italy, Japan, Malaysia, Spain, Germany, Hungary, Brazil, Canada, Chile, India, China, Romania and Russia are also coming up with their own plans for moon missions. In short, we're coming up against an international space law scenario that everyone's been dreading: "A private launch system based on the Isle of Man, launching somebody into orbit who would then be transferred to L1 on a tug that was run out of Dubai, and then to a lander operated by somebody in Australia."

To make sure that the United States gets first dibs on whatever's out there - maybe helium-3 or valuable rare earth elements - there's been a lot of discussion already about how to create the right legal framework to get around that pesky 1967 UN Outer Space Treaty.

The best option for now is the claim that a "loophole" exists whereby sovereign ownership rights to the moon might be banned, but private ownership rights are not banned. (Remember, we never signed the 1979 Moon Treaty. Ha! Instant loophole.) According to one piece of proposed legislation known as the Space Settlement Prize Act, the first private venture to establish a moon base would be able to claim up to 600,000 square miles of the moon's surface.

Other arguments have made the case that the commercial exploration of the moon should follow the logic of the Law of the Sea Treaty, which can be basically described as "finder's keepers" when it comes to activities such as mineral extraction. And, last but not least, there's the "Well, China is going to do it anyway, so we should do it first" argument for selectively opting out of the parts of the UN Outer Space Treaty that would block U.S. commercial enterprises from freely commercializing the moon.

So that's why the FAA ruling on the moon is so clever - it bends the ball around the 1967 Outer Space Treaty by clearly stating that the U.S. government must still approve whatever a company brings to the moon and whatever it does on the moon. It pays homage to the 1979 "Moon Treaty" by stating that the ruling does not imply "ownership of the moon." It dives into the Law of the Sea Treaty by establishing a provision for mining and exploration rights, provided some base of operation has already been established on the moon's surface. And it keeps America's legal options open to take on China at a later date by suggesting that the "national regulatory framework is ill-equipped to enable the U.S. government to fulfill its obligations" under the 1967 UN Outer Space Treaty.

So what exactly did the FAA give Bigelow? A "landing spot" on the moon? The right to set up an inflatable habitat on the moon? Pre-approval for a future moon payload? If you're not a space law expert, it's hard to tell. Maybe Robert Bigelow, the founder of Bigelow Aerospace, put it best when he told Reuters: "It just means that somebody else isn't licensed to land on top of you or land on top of where exploration and prospecting activities are going on, which may be quite a distance from the lunar station." So here's the deal: Companies are going to the moon, and they don't want to come back empty-handed. They are not getting much money from the government, so they need to make every moon visit commercially viable. The easiest way to do that is by making some aspect of moon exploration relatively routine, while letting NASA figure out all the hard stuff - such as how to get to Mars. For example, Astrobotic envisions ferrying "moon mail" and other payloads back and forth from the moon.

But that's just scratching the surface of the moon. What about mining and exploration? That's could be one big reason why the Chinese are so intent on getting back to the moon. And that could be the real reason for Bigelow Aerospace to get the FAA to make the ruling. Imagine setting up a vast number of Bigelow's inflatable habitats on the moon's surface and getting access to all the surrounding mineral, mining and exploration rights. The company might not "own" a crater or an acre of moon real estate, but it would hold the rights to any helium-3 found.

Right now, the FAA is the only U.S. regulatory body that can regulate moon exploration, by virtue of its ability to license commercial space transportation. In addition, the U.S. State Department would theoretically be in charge of making sure other countries honor any contracts that U.S. companies sign for making deliveries to the moon. Other than that, it's the "Wild West." This might be the rare case where more regulation actually speeds up innovation. Regulation, it turns out, might become the key to making the risk-reward payoff more attractive to private companies and encourage commercial development of the moon.

The problem is, the FAA might not act fast enough. Remember - the FAA is also the body that regulates drones, and that process has been slow and grinding. What's to think that the FAA will be any more speedy with a whole new generation of hoppers, landers and orbital craft?

Maybe we're getting ahead of ourselves, taking about moon property rights before we've even figured out how to get back to the moon. Maybe the FAA has overstepped its authority. But it's important to be talking about these issues now, before some company or nation takes over a big chunk of moon real estate and provokes an international legal war over lunar property rights.

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