Does a starry sky have protections?

Based on potential orbital debris and light pollution, The GAO recently published recommendations that the FCC review and document whether licensing of mega-constellation satellites “normally does not have significant effects on the environment,” establish review process and a time frame for its “categorical exclusion” of such licensing, and make public the factors FCC considers in determining “extraordinary circumstances.” They also report that FCC agreed with their recommendations.

Although a debate over whether people have a right to a dark night sky hasn’t been on the radar screen for all but a tiny and recent sliver of human history, in early 2020 then Vanderbilt law student Ramon J. Ryan argued in The Fault of Our Stars that the FCC should back away from its categorical exclusion of satellites from environmental review, and complete an environmental assessment of direct, indirect and cumulative effects of commonly used satellite components on the environment. Noting that programs like Starlink have the potential to provide internet to billions of people lacking access, such a process would create standards in the commercial-satellite industry that would comply with Congress’s mandate that the federal government proactively consider environmental impacts of its actions, without denying possible positive effects on economic stability and access. He cites NASA’s environmental review of routine payloads in their missions as a model.

In 2019 about 2,200 satellites were orbiting the planet, a number Ryan suggested should increase five-fold in the next few years. Scientific American (SA) now reports that SpaceX alone has been granted permission to launch 12,000 in the next years, with plans for another 30,000, and almost all brighter than anything currently in orbit.

Then a FCC spokesman rejected Ryan’s argument, but other lawyers interviewed for the SA piece believe there is ample precedent, including a successful questioning by environmental groups of the National Institute of Health’s approval of recombinant DNA bacteria without proper review, and the US Army Corps approving licenses for gambling ships in the Mississippi. Considerations mandated under the National Environmental Policy Act include direct and indirect effects on “aesthetic, historic, and cultural” considerations, and Sarah Bordelon, an environmental lawyer, believes that Ryan’s argument that the night sky falls into those categories is “not a crazy argument.” Good to know! Bordelon’s argument includes astronomers’ inability to do their jobs, which would give them standing, and she believes if the FCC missed a significant issue, they would likely lose a legal challenge.

In what the SA calls a “belated attempt” to solve astronomers’ concerns, SpaceX has tried a light-reducing coating for some satellites, but it’s not clear that is working. A court battle would last for years, and there could be an injunction prohibiting new launches. Please remember, it’s our money and this is important information on balancing the possibilities of mega rockets—like obviating the need to fold the James Webb Space Telescope up so it would fit into a rocket—with our love of our night sky.

And anyone reading through a startup’s prospectus that includes such things as a use of mercury rejected by NASA fifty years ago, please take heed.

Philippa Dunne & Doug Henwood