In a contentious hearing on Wednesday, the Republican controlled House Science Committee approved a measure that would give companies rights to materials they mine from asteroids over complaints from Democrats that the measure was unconstitutional and drawn up to benefit a single company.
The Space Resource Exploration and Utilization Act of 2015 was approved by a party line vote of 18-15. The bill is sponsored by Rep. Bill Posey (R-FL) and Rep. Derek Kilmer (D-WA). Identical legislation has been introduced in the Senate.
Posey said the measure would give companies the right to own and sell materials they mine from asteroids. The measure does not allow a company to own asteroids, nor does it apply to the moon or other planets, he said.
Democrats called the measure unconstitutional, saying it clashed with the nation’s obligations under the 1967 Outer Space Treaty that banned ownership of extraterrestrial resources. They cited an expert who testified to that effect at a hearing last year.
Legislation that would grant property rights to entities mining asteroids has been introduced in Congress.
“Any asteroid resources obtained in outer space are the property of the entity that obtained such resources, which shall be entitled to all property rights thereto, consistent with applicable provisions of Federal law,” the measure states.
Sen. Patty Murray (D-WA) has introduced the Space Resource Exploration and Utilization Act of 2015 with Sen. Marco Rubio (R-FL) as co-sponsor. Rep. Bill Posey (R-FL) has introduced an identical measure in the House with Rep. Derek Kilmer (D-WA) as co-sponsor.
Washington State is home to Planetary Resources, one of two American asteroid mining companies. The other company is Deep Space Industries, which is located in California.
The legislation would require the President to submit to Congress within 180 days a report containing “recommendations for (1) the allocation of responsibilities relating to the exploration and utilization of space resources among Federal agencies; and (2) any authorities necessary to meet the international obligations of the United States with respect to the exploration and utilization of space resources.”
A bill that would grant property rights and other protections for commercial asteroid mining ventures received a mixed reception at a hearing of the House Science space subcommittee Sept. 10.
H.R. 5063, the American Space Technology for Exploring Resource Opportunities In Deep Space (ASTEROIDS) Act, would grant U.S. companies the rights to resources they extract from asteroids. The bill would also allow companies to take legal action if they suffered “harmful interference” during those activities by other entities under U.S. jurisdiction.
At the hearing, though, one space law expert raised questions about the bill’s language. “My professional opinion is that the ASTEROIDS Act, as written, is very, very vague,” said Joanne Gabrynowicz, professor emerita of space and remote sensing law at the University of Mississippi. “Strictly from reading the text, and based on legal knowledge, it definitely needs work.”
Gabrynowicz said she was concerned about the use of the term “harmful interference” in the bill. While the phrase is used in accords like the Outer Space Treaty, it refers to exploration activities by nations, not private entities. “Harmful interference has never been used that way in the treaties. It’s a completely novel application of that term of art,” she said.
That, she said, could raise questions about what constituted such interference.
She added that international legal opinion is divided on whether an entity that extracts space resources then owns those resources, ownership that the bill would recognize. “What we are talking about is resource extraction, which is a very volatile and contentious issue at the international level,” she said. “There will be a great deal of political and legal discussion catalyzed by this.”
One key member suggested that, because of those issues, the committee delay work on the bill until next year. “We could easily postpone our consideration” of the bill to carry out “additional, more in-depth explorations in the next Congress,” said Rep. Donna Edwards (D-Md.), ranking member of the space subcommittee.
Rep. Bill Posey, R-Florida announced on Thursday that he was introducing a bill along with Rep, Derek Kilmer, D-WA called the American Space Technology for Exploring Resource Opportunities in Deep Space (ASTEROIDS) Act of 2014. The act is designed to protect the private property rights for entities mining asteroids and to otherwise encourage asteroid mining. The bill is in apparent reaction to efforts by companies like Planetary Resources and Deep Space Industries to locate and mine Earth approaching asteroids for their resources.
The crucial part of the short piece of legislation states that the resources mined from an asteroid would be the property of the entity undertaking the operation. This language gets around the provision of the Outer Space Treaty that states that states are forbidden to establish national sovereignty over celestial bodies, which would be a perquisite to the United States allowing a private entity to own an asteroid. It rather grants mineral rights to the asteroid, something that the treaty does not mention. This is no enforcement mechanism in the event of a dispute with another country, however.
Bigelow Aerospace founder Robert Bigelow raised eyebrows with an announcement pertaining to space property rights at a recent event in downtown Washington.
The Nov. 12 event marked the presentation of a report prepared by Bigelow Aerospace for NASA that proposed the use of a model similar to the Commercial Orbital Transportation Services program — which led to the development of the Space Exploration Technologies Corp. (SpaceX) Dragon and the Orbital Sciences Corp. Cygnus freighter for international space station resupply missions — to develop human spaceflight capabilities for beyond low Earth orbit, including activities around and on the surface of the Moon.
As part of his presentation, Bigelow announced that by the end of the year Bigelow Aerospace would be submitting an application for a policy review to the U.S. Federal Aviation Administration Office of Commercial Space Transportation for a review of the United States’ stance on outer space private property rights. The announcement was met with skepticism from many in the space community.
‘We can lick gravity,” quipped Wernher von Braun, “but sometimes the paperwork is overwhelming.”
Robert Bigelow is trying to do what von Braun could only dream of: Build a Moon base — and a profitable one at that. He’s not just dreaming. Funded by his hotelier fortune, Bigelow Aerospace already has two autonomous prototype habitation modules in orbit. Another Bigelow module is headed to the international space station next year. The company plans a full-scale space station once domestic crew transportation becomes available.
But as for von Braun, Bigelow’s challenge isn’t merely technological (or economic). Just like the first private rocket company 30 years ago, Bigelow Aerospace needs sign-off from the U.S. government — and again, there’s no clear path forward. The company also needs two other things, as Bigelow himself made clear at a press conference in November. First is the U.S. government’s assurances that it won’t allow other U.S. companies to interfere with Bigelow’s operations. Second, obviously, Bigelow must own any resources it mines: minerals, water, rocket fuel, etc.
“Without property rights, any plan to engage the private sector in long-term beyond [low Earth orbit] activities will ultimately fail,” declared a recent report Bigelow produced for NASA.
Far from seeing the company as competition, NASA “finally understands the need for such public-private partnerships,” says James Pura, president of the Space Frontier Foundation, an organization long critical of NASA’s traditional go-it-alone approach but which has cheered the agency for buying commercial cargo and crew transportation services to the international space station.
Not everyone is onboard, though. In the Dec. 9 issue of SpaceNews, space lawyer Michael J. Listner insisted that “The Time is Not Ripe To Tackle Space Property Rights” [Commentary, page 18]. He’s right: The United States needs to tread carefully. But he falls into the typical trap of lumping all “property rights” together — and thus defaults to calling for careful international negotiation, the last refuge of most space lawyers.
