Aviation law, now with rockets!

How a new wave of space entrepreneurship is taking this practice area from the blue into the black

Until recently, space activity in the U.S. was exclusively the stuff of federal agencies—namely, NASA and the Department of Defense—and a few commercial space-based communications providers. Not surprisingly, therefore, the legal practice area serving the space sector has traditionally involved such staple “space law” specialties as government contracting, satellite insurance and Federal Communications Commission compliance.

That is all changing. Thanks to the emergence of well-capitalized enterprises like Virgin Galactic (founded by Virgin Group’s Sir Richard Branson), SpaceX (headed by PayPal’s Elon Musk), Blue Origin (started by Amazon.com’s Jeff Bezos), Armadillo Aerospace (spawned by computer game programmer John Carmack), and Bigelow Aerospace (run by hotelier Robert Bigelow), rocket engineers in remote places like Mojave, Calif. and Caddo Mills, Texas are building hardware to take fare-paying passengers—or, as the Federal Aviation Administration’s (FAA) new spaceflight regulations refer to them, space flight participants (SFPs)—into the black of space. And things are well beyond the drawing table.

The Spaceship Company, which will be providing the ride for Virgin Galactic’s customers, is currently putting its spacecraft through glide testing. In May 2012 SpaceX famously berthed an uncrewed version of its Dragon capsule to the International Space Station. Bigelow Aerospace actually has prototype modules of its planned human space habitat orbiting the Earth. It won't be long before these companies and others will be conducting the business of transporting persons to suborbital space, Earth orbit, and perhaps even the moon. A few of these customers will be wealthy space tourists, but the sustainable market for most companies will likely be domestic and foreign government agencies wanting to conduct science, and corporations pursuing commercial interests in space.

The significance of all this to what it means to be a space lawyer has not been lost on either the technical or legal communities. The American Institute of Aeronautics & Astronautics now regularly includes one or more programs on the law of this new aspect of the space industry at its conferences, as does the American Bar Association’s (ABA) Forum on Air & Space Law. And the ABA’s Section of Science & Technology Law recently added an entirely new space law committee devoted exclusively to this “new era in spaceflight.” That committee has also published an excellent book for interested practitioners entitled “The Laws of Spaceflight: A Guidebook for New Space Lawyers.”

Aviation lawyers will perhaps benefit the most. The addition of this new, SFP-focused portion of the space industry creates an offshoot of the space law field that leads straight into the wheelhouse of the aviation lawyer, particularly the aviation accident litigator. Those engaged in the building of spacecraft, and the service of hurling humans into space aboard them, will do so within essentially the same legal and risk management environment that aviation lawyers work in every day. When accidents occur, liabilities will be established and allocated according to the same kinds of state statutes and common law doctrines that have historically governed aviation accidents—albeit with a few spaceflight-specific state statutes sprinkled in (for example, Texas’s recently enacted Act Relating to Limiting the Liability of Spaceflight Entities). Attorneys will likely defend and indemnify companies under liability insurance policies written by the same insurers who have historically issued aviation policies.

Space-related FAA regulatory processes and compliance, and their interplay with accident litigation, will be familiar territory for practitioners in the heavily-regulated aviation industry. The reality is that although spacecraft and aircraft take people into different physical atmospheres, the legal atmospheres will be much the same. The space context does uniquely call upon knowledge of export control laws, including the International Traffic in Arms Regulations, and orbital and interplanetary operations can implicate international laws such as the Outer Space Treaty. These areas, like the other traditional space lawyer bailiwicks mentioned above, will continue to fall within the space lawyers’ realm, but the aviation lawyer wanting to take full advantage of this new age will want to add them to his or her legal flight bag.

The rapidly emerging commercial human spaceflight sector is poised to put a new face on the practice of space law, and to add an exciting set of new hardware and flight regimes to the practice of aviation law. Both the space lawyer and aviation lawyer can look forward to applying their specialized expertise to helping this fledgling commercial sector thrive and sustain. Ad astra!

Contributing Author

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Doug Griffith

Doug Griffith is a Los Angeles attorney whose practice caters exclusively to clients in the aviation and commercial human spaceflight industries. Formerly with the aviation practice...

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