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Congress shouldn’t rush to tax and regulate space exploration

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Next week, thousands of space professionals from around the globe will converge on Washington, D.C., for the 70th International Astronautical Conference. These professionals and students will present and discuss an array of solutions, concepts and ideas for all things space. But when it comes to formulating new governance structures, rules and regulations, we must remember the vast gap between aspiration and execution in space.

The human ability to imagine, consider and discuss future solutions and problems is nowhere more evident than in space. But that very strength also means the space community dedicates immense time and effort to addressing a universe of problems they would be fortunate to have.

As a very general principle, the three disciplines that govern space projects are, in order of increasing mutability: engineering, finance and law.

First, solve the engineering problem to see if a given project is even feasible. Once the laws of physics have been observed, one can start imposing rules, restrictions and regulations. Applying these principles out of order, let’s say by putting law first, doesn’t provide any clear benefit, but most certainly runs the risk of prematurely and blindly excluding solutions that might otherwise clear the engineering and financial hurdles.

Since our body of law in space is still emergent, there aren’t many legal restrictions already in place. That’s a good thing because it gives planners the luxury of limiting their attention to those things that are imminently likely to occur. We should let engineering and finance take the first two chunks out of the solution space.

If our 60 years of space exploration have taught us one thing, it is to respect the gulf between what might be possible and what gets done. In theory, on paper and PowerPoint, space presents a seemingly limitless array of possibilities and challenges. This alone should strongly bias the space community towards addressing the real, concrete and actionable if even only to manage workflow and resources. Naturally, there is a role for very elegant, sophisticated approaches. But in general, the default should always be towards a kind of philosophical minimalism. Planners should always strive towards failing in favor of execution.

In engineering design, a system may be designed to “fail-safe,” meaning that if the system experiences an anomaly or failure, by default, the system reverts to an inert, safe status. Our policies must be designed so that if there is a regulatory or market failure, the system fails towards encouraging space activity, not discouraging it.

We should be asking if this or that ruleset is incomplete, poorly constructed or generates unintended consequences, will it end up encouraging or discouraging space activities?

Aggressively applying the precautionary principle (first, do no harm) to space activities tends to be more punitive than prescriptive. If anything, we should apply the precautionary principle to laws, rules and regulations themselves. First, our rules should do no unnecessary harm. The margins in space are so thin, the hold so tenuous that unnecessary requirements can mean the difference between success and never taking flight at all.

Overall, this should amount to a change from the current system, based largely on “negative permission” — a given proposal is generically prohibited unless expressly granted permission. The far more prudent course is to default towards a system of “positive permission” — everything should be permitted unless it is explicitly forbidden.

Right now, Congress is giving some thought to how to govern human presence and economic activity in low earth orbit, including the management and operation of the International Space Station (ISS).

Some ideas include placing payment restrictions and receiving royalty payments on any new commercial breakthrough on the ISS. This is a terrible idea. Making claims today on as-yet hypothetical revenue streams tomorrow only makes investment less attractive. First, some enterprising company must make a big commercial breakthrough. After policymakers have a real commercial success to examine, then it will make sense to start talking about how they want to tax it.

Likewise, Senate Bill 919, the Space Frontier Act, addresses how ISS might be managed in the future. The legislation directs NASA to examine what governance structures might be best suited to supporting the U.S. national microgravity effort. But then that legislation immediately directs planners to focus on the creation of a Federally Funded Research and Development Center (FFRDC) — apparently to the exclusion of everything else.

Why on earth would anyone open the solution space for the future of ISS and then immediately constrain exploration to just one option? First, discover what management structure options exist. After decisionmakers know what their options are, then they will be better able to choose the best one.

This is not a cry for some a laissez-faire wild west or libertarian utopia. It is a cry for humility and forbearance in the face of unforeseeable challenges. It is about trying to keep our regulatory and policy ambitions in touch with what we concretely know and understand. It is an appeal to face the unknown not with fear and apprehension, but with careful thought and measured deliberation.

Just because we can imagine future events does not mean we have to start managing every single one of them before we know anything at all about what the future will hold.

Until a given aspiration or vision becomes real, arbitrary constraints are premature. First, realize the vision; only then can we responsibly worry about regulating and taxing the reality. Regulation and limitation of the purely hypothetical should, as far as is possible, remain similarly hypothetical. Concentrate on the difficulties we face today, not future problems we would be lucky to have.

G. Ryan Faith is a space policy consultant who previously served as a professional staff member supporting the House Subcommittee on Space and Aeronautics. Faith was previously VICE Media’s defense and security editor and a research analyst for the Space Foundation.

Tags International Space Station NASA

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