L. Neil Smith's
Number 246, November 9, 2003

Wrong Way, Right Way

HR3245: A positive step in an imperfect world
by Thomas Andrew Olson

Exclusive to TLE

While I agree in principle with Lehr Duquesne's assessment of HR3245 ([Issue 245]), the "Commercial Space Act of 2003", I still support the bill, and would humbly suggest that the larger picture is being overlooked. This article is an attempt to explain that picture.

The reader has every right to ask, why in the hell would a good Libertarian write in favor of a piece of statist legislation? The answer lies in the opportunity this legislation affords.

All of us reading this would like nothing better than to see the State go away. Unfortunately, we have neither the dollars nor the bodies to make that happen, now or in the near future. Today, whether we like it or not, the reality is that the federal government does arrogate to itself "the sole authority to license launch vehicles", and no legislation changing that is liable to come down the pipeline anytime soon.

The reason this is so is due to something that is very Constitutional, i.e., the authority of the federal government to enter into international Treaties. In fact, there are no less than five international treaties, to which the US is a signatory, regarding space launches:


One treaty in particular, the Convention on International Liability for Damage Caused by Space Objects (i.e., the "Liability Convention"), holds governments (and their hapless taxpayers) liable for damages if any launch vehicle (public OR private), launched from their sovereign territory, loses control and causes damage to someone else's sovereign territory. Also, as a result of this, the US government became the major insurer of launch services. It is therefore in their best interests to keep a lid on things. That policy has also held back commercial space efforts for 25 years or more.

To date, there are only a handful of "commercial" launch services in the US, mainly spinoff operations from insider NASA/DoD contractors like Boeing and LockMart, who have the hardware and fiscal resources to get through the regulatory maze. But "the Other Space Program", small, homegrown, privately financed launch service companies, is developing and growing, and some companies may see real launch success within the next 12 months. As Rick Tumlinson, of the Space Frontier Foundation, claimed in his recent testimony before the Senate Transportation Committee regarding the future of NASA, the next astronaut to fly will be neither a NASA employee nor fly a government spaceship. Instead, that person will fly sub-orbitally to the edge of space in a private custom craft, built for a cost of less than US$20 million.

While we may all agree that bureaucratic logjams are anathema to free minds and free markets, anything that will truly streamline the launch permit process, in a way that everyone, statist and free marketer alike, can live with for awhile, is better than what we have now. Today it can take over two years for a company to navigate the minefield of agencies, regulations, and bureaucratic agendas to get a permit to fly or even test, for that matter. One can only imagine how discouraging the costs of such a nightmare can be to an already-lean startup firm and many have fallen by the wayside because of it.

What HR3245 does is split off a sub-section of the FAA that already exists—the Administrator for Commercial Space Transportation (AST) —and gives it its own independent authority to license private commercial launch services, without subject to veto by "higher" FAA officials, which is the precarious position it enjoys now.

Why is this important? Because AST is, in fact, committed to licensing private launch services. Their small, dedicated team really wants private commercial launches to succeed. I've talked at length with one of AST's directors, Jay Garvin, at the Space Frontier Foundation conference in L.A. last month. His only concern is to make sure that accepted safety and environmental impact standards are adequately addressed by license applicants. You meet the standards, you get the permit to launch—pure and simple. We may not agree with the statist philosophy behind it, but if we are stuck with a bureaucracy, isnt it better to have one that is ostensibly on our side(at least until we can collectively render it irrelevant)?

So what is the upside to this bill? For the first time, it offers truly "private" launch services, such as those being developed by Scaled Composites and Armadillo Aerospace, a level regulatory playing field alongside the old boy/big boynetwork. Getting permission to flywill no longer be an impossible process, but rather one with predictable ground rules. Given that the cost of regulation imposes immense economic burdens in this country, at least now in the field of commercial space, those burdens will be predictable, and startup companies can realistically factor them into their fiscal projections, so potential angel and venture investors have something more solid to go on.

Successful launches by these new firms will prove to the public that space need not be a complicated and expensive government-only domain, but rather a rewarding place to do business. With successful launches comes increased private investment, enabling these companies to grow and expand their market base. A track record of success will also encourage private insurers to participate, taking the pressure off the feds, and the taxpayers. The dream of cheaper cost-to-orbit will finally have a shot at being realized.

It's not a perfect world, by any means. But (1) we don't live in one, (2) were not going to create one anytime soon, and (3) if we wait for the State to wither and die before we can even begin to hope for a commercial ticket to ride, our grandchildren will still be waiting thirty years from now.

To make any progress at all, we need to work with the tools we have, until the day arrives where we can fashion some better ones. If we wait for Fed.govto collapse of its own weight before even attempting anything, we'll waste yet another generation's potential in space. Ill be 50 in February. Frankly, Im tired of waiting. If we have an opportunity to build a private commercial space infrastructure now, we should take it, for it will still exist should America one day undergo, shall we say, a Grand Evolution. Well have something to build on afterwards, rather than beginning from scratch.

Commercial launchers and the feds have been in a staring contest for 25 years. We've all suffered as a result. HR3245, if it passes, is, if nothing else, a sign that the Other Guy blinked. Its also a tacit admission that NASA no longer has what it takes to go it alone. Its not perfect, but its an important step in the right direction. To reject the opportunity solely on the basis of philosophical purity will only serve to doom yet another generation to being stuck on the ground. Property rights questions in the high frontier will only be dealt with when a private citizen actually goes to another world and boldly stakes a claim but to do that will require a robust, commercial space infrastructure, something well never build in the present regulatory environment.

Thomas Andrew Olson is CEO of The Colony Fund, a space-investment startup, and is an Advocate of the Space Frontier Foundation.


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