DC Circuit Questions NEPA's Outer Space Applicability

"It does feel a little bit like standing is being dispensed in gross, the astronomers arguing about space junk" and Viasat about light pollution, said Judge Justin Walker. The FCC "kind of punted" on NEPA's scope in the license mod order, but "in some ways it does seem to be the most law-based reason to deny [the Viasat] petition," he said. He called the idea that NEPA covers orbital debris "a tough sell," and more than once pressed appellate lawyer William Jay of Goodwin, representing Viasat, about any hypothetical space activity that Viasat thought NEPA wouldn't cover. Maybe a mission to Mars, Jay said: "It's not that NEPA covers the universe." There's a strong canon of construction that federal statutes don't apply extraterritorially, said Judge Greg Katsas. "If they presumptively don't apply to Canada, they presumptively don't apply to the moon," he said.

The D.C. Circuit went back and forth with Jay and later with FCC Office of General Counsel (OGC) lawyer Rachel May about whether plaintiff Balance Group meets the legal definition of a membership association and thus has standing. May conceded that, under NEPA, if an appellant has standing, that party can raise a full range of environmental harms including ones unrelated to that party's standing.

Katsas said Viasat's argument about having standing to argue possible orbital debris harms "intuitively ... sounds very unlikely to me." He said the statistical likelihood of a SpaceX satellite collision causing harm to a Viasat satellite is "pushing ... toward de minimis."

SpaceX's work to reduce its Starlink satellite reflectivity in response to astronomy community concerns "is a red herring," since those harms haven't been mitigated, Jay said. Even if individual satellites might be dimmed, the FCC hasn't addressed Starlink's cumulative "skyglow" effect of night sky brightness and how that will harm scientific research and twilight observations.

"Mitigation is very much not a red herring" because the company is working with the astronomy community on means of lowering its reflectivity impact, said May. That makes it reasonable for the FCC to conclude impacts of SpaceX satellites don't meet the bar of significant risk, she said. May also targeted Viasat claims the SpaceX constellation would cause it to incur sizable added costs. Judge Robert Wilkins asked why it wasn't self-evident that SpaceX deploying more satellites than the cumulative total launched by humans thus far would make Viasat operations far more complex and costly. May said nothing is in the record aside from Viasat's assertion.

The cost to Viasat isn't just in operating its satellites but in finding launch windows and the inevitable launch delays as space gets more crowded, Jay said.

An environmental assessment (EA) would delay broadband service and mean more time and resources spent by SpaceX, said appellate lawyer Pratik Shah of Akin Gump, representing the intervenor satellite operator. He said the payoff would be "virtually no environmental benefit" as satellite operators would just seek licensing by foreign regimes to avoid EAs and then apply for U.S. market access. He said Viasat's arguments before the FCC for an EA involved a far larger hypothetical SpaceX constellation of tens of thousands of satellites than the license mod involved, while Viasat claims of aluminum particulate pollution were based on an analysis of more than 100,000 satellites from numerous operators. He said if SpaceX deviated from conditions on its operations about beam use, evidence would be detectable and the FCC would be able to act.

Wilkins repeatedly questioned Dish Network outside counsel Pantelis Michalopoulos of Steptoe about claims that the FCC would likely dismiss out of hand any Dish evidence of harmful interference from Starlink. Michalopoulos said the FCC orders ignoring Dish expert witness assertions in favor of SpaceX claims show that. He said the agency claims SpaceX's incentive is to operate within ITU limits, but that there are no negative repercussions for operating at higher power until eventually told by the ITU to dial it down means the opposite. "No harm no foul for SpaceX, harm and foul" for Dish subscribers, he said. Asked why AT&T's DirecTV isn't also arguing the case, Michalopoulos said the direct broadcast satellite operator uses primarily the Ka band, while Dish -- like SpaceX -- relies on the 12 GHz band.

The ITU software SpaceX used to test that its system wouldn't interfere with Dish was designed to make predictive judgments, said OGC lawyer James Carr. He said if there is evidence once SpaceX begins full commercial operations that it's exceeding ITU power limits, the FCC would take enforcement action. Carr said the ITU software represents an international consensus and is the best available predictor if a system will comply with ITU limits. He said the FCC knows of no instance where a system passed and later was shown to be exceeding power levels.

Asked by Katsas how comfortable the FCC is in extrapolating about something the size of SpaceX's proposed plans, Carr said the software was designed to deal with various constellations, including ones that large. He said if Dish thinks the software is deficient, it can approach the U.S. ITU delegation about seeking a revision. Michalopoulos retorted that the ITU only hears from national administrations, and if Dish tried to raise an issue there directly because the U.S. ITU representation has a conflict of interest, "we would be politely, or perhaps not, shown the door." He said the complexity of the SpaceX proposed system is outside what the ITU software was designed to handle.