Comments to Federal Aviation Administration Regarding Commercial Space Launch and Reentry Actions

Introduction and Summary

The Information Technology and Innovation Foundation (ITIF) appreciates the opportunity to comment on the FAA's proposed waiver of specified statutory requirements for commercial space launch and reentry actions.[1] The FAA is right to target procedural deficiencies in the National Environmental Policy Act (NEPA) review, but the NPRM overreaches by waiving provisions of 12 substantive environmental laws for all launch and reentry activities and sites, undermining its defensibility and durability.[2] Instead, the FAA should primarily expand its categorical exclusions (CEs), and reserve a narrower NEPA-only waiver for actions that where CEs are insufficient. This narrower approach will enable spaceport owners and operators to expand and update infrastructure without facing insurmountable legal challenges.

NEPA Upends Critical Infrastructure Projects and Requires Reform

NEPA, a legal framework for reviewing regulatory agency-licensed actions, has become the most significant hindrance to infrastructure development in the United States.[3] The combination of Executive Order 11991 and the 1980 Equal Access to Justice Act allows NEPA to be used as a litigation tool, meaning agencies can be sued for proposed actions.[4] Plaintiffs typically lose their lawsuit, but because the American Rule dictates they are not required to pay federal agencies' legal fees, suing an agency under NEPA carries practically no repercussions.[5] As a result of these lawsuits, companies licensed to carry out the actions often abandon projects due to skyrocketing legal fees, and American infrastructure falls into disrepair.

The FAA is right to pursue NEPA reform for licenses to operate launch and reentry sites, vehicles, and experimental permits because removing unnecessary NEPA procedures will enable U.S. space companies to innovate more quickly and effectively. However, the most durable approach to unburdening space launch and reentry licensing from NEPA will be one that makes comprehensive changes while still being legally defensible.

Therefore, the FAA should primarily expand and refine its categorical exclusions (CEs) under FAA Order 1050.1G, Appendix B.[6] The list of CEs is built on the FAA's existing licensing record, which shows that certain launch and reentry sites and activities do not have significant environmental effects. A wholesale waiver across Parts 420, 433, 437, and 450 of the Code of Federal Regulations, as the NPRM proposes, is likely a bigger step than necessary to solve licensing delays. Expanding the CE list is a more precise method for NEPA reform than a sweeping waiver, making it more durable, more legally sound, and better aligned with Executive Order 14335.[7]

Waiving the Other 12 Environmental Laws is Not Statutorily Justified

Even if the FAA decides to waive NEPA requirements for Parts 420, 433, 437, and 450, it should not do so for the other 12 laws in the NPRM because they are substantive, whereas NEPA is only procedural.[8] Laws such as the Clean Water Act and the Clean Air Act impose actual legal constraints that exist independent of the license review process. That makes these laws distinct from NEPA, and they should receive different regulatory treatment.

Given the difference between NEPA and the other 12 environmental laws, the statutory standard in 51 U.S.C. 50905(b)(2)(C) must be applied differently as well. The statute states that a requirement may be waived only if it's "not necessary to protect the public health and safety, safety of property, and national security and foreign policy interests of the United States;" and, while that standard is certainly applicable to NEPA, it does not fit the other 12 laws as clearly.[9]

While NEPA is procedural, several of the other 12 laws, such as the Clean Air Act, Clean Water Act, and Safe Drinking Water Act, exist specifically to protect health, safety, and property. Even where a law's core purpose isn't public health, safety, or property, bundling its waiver with NEPA's exposes the more defensible NEPA waiver to legal challenges aimed at the other twelve. Bundling these laws with NEPA not only eliminates necessary environmental regulations, but it also undermines the credibility of the legitimate arguments for waiving NEPA review. Treating all 13 laws the same invites heightened legal scrutiny, which the proposed rule change is unlikely to withstand. If the FAA chooses a waiver instead of CEs, it should narrow the NPRM to waive only NEPA review requirements for space launch and reentry, a position that has a strong, legally defensible case.

Different Launch and Reentry Sites Require Different Levels of Regulatory Scrutiny

The FAA should similarly use CEs for launch and reentry sites rather than a blanket waiver for all sites, which is also legally dubious. The NPRM applies a uniform waiver to sites regardless of whether they are existing federal sites or new privately owned and operated sites. However, different sites require different levels of environmental scrutiny, making CEs a more precise and durable approach than a blanket waiver.

For example, expanding an existing federally owned launch or reentry site should not require extensive environmental review. Federal sites are subject to ongoing stewardship obligations, and the land use itself has typically already undergone federal environmental review independent of FAA licensing. In cases where there has already been extensive environmental review, the FAA should add new actions that don't differ greatly from previous construction to the list of CEs.

Alternatively, a new, privately owned launch or reentry site deserves greater regulatory scrutiny because there is no review documentation to rely on, and because such sites lack the backstop of federal environmental stewardship requirements. As such, FAA license reviews are often the only point at which the government examines the potential environmental impacts of private launch and reentry sites and activities. Applying a blanket waiver to these sites doesn't shift the burden of review to another government entity; it eliminates the review.

A broad, weakly justified waiver of all launch and reentry sites regardless of environmental review history is a much larger target for legal challenges than either an expanded CE list or a narrower, NEPA-focused waiver based on the measurable risk posed by each site. Courts and future administrations could unwind an overbroad waiver far more easily than they could unwind an extensive body of CEs or a targeted waiver. Reforming environmental regulations for space launch and reentry will have no lasting impact if legal challenges keep it from taking effect.

Conclusion

Eliminating harmful NEPA review is a necessary reform that will help America continue to lead in space innovation. However, the NPRM's uniform waiver across environmental laws and launch and reentry sites forgoes the risk-based, evidentiary approach that justifies deregulatory action. The NPRM's stated goal is regulatory certainty, but a fragile, overbroad rule undermines that goal more than a narrower one would. The FAA should instead primarily use the CE process to exempt specific sites and actions from NEPA review, reserving a narrower NEPA-only waiver for actions that do not qualify for a CE.

Thank you for your consideration.

Endnotes