By Joshua Hampson

On February 27, Elon Musk announced that SpaceX plans to launch a private manned mission to fly around the moon in late 2018. Such a plan would take ambitious steps forward in space exploration. It would be the first manned space mission beyond orbit since 1972, as well as the first beyond-orbit mission undertaken by a private company. And it would accomplish these unprecedented actions at a rapid pace.

It would be a remarkable demonstration of American innovation and private sector ingenuity if SpaceX is successful in its moon flyby mission. Even attempting such a mission reveals how far the United States’ space industry has come from the days of nationally-driven manned space missions. Such a mission will also heighten an ongoing debate over the role of private actors in space. The Trump Administration’s vision for space had already reinvigorated conversations about what future private action among the stars should look like. With the private sector moving quickly, however, the U.S. government will have to produce answers to outstanding questions, including: 1) what should private companies do in space and what is the government’s role; and 2) how to deal with regulatory uncertainty.

Render Unto NASA What is NASA’s?

SpaceX’s lunar mission has returned focus to an issue that has been long debated in space policy circles: are some missions inherently governmental? Even as the United States seems poised to turn over low-Earth orbit to companies, high-ranking government officials have highlighted the government’s role in deep space exploration. This perspective is part of what is behind recent declarations of support for NASA’s Space Launch System (SLS) from key Representatives in Congress.

The push for national missions to return Americans to the moon (or land for the first time on Mars) resulted from an assumed lack of interest from commercial launch providers. While there are business cases to be made for launching satellites into orbit (or perhaps even mining an asteroid), private exploration missions had not seemed to offer much in terms of incentives for investment. It also seemed to be the case that the costs involved in a mission beyond orbit would sink private endeavors.

SpaceX’s announcement may change that perspective. While the future of the mission is not certain, the company is certainly drumming up interest. Though NASA’s SLS may finally be nearing its first launch, it will comes with a hefty price tag. If the SpaceX mission moves forward—and demonstrates costs savings—there will be questions about whether government-build systems are the best path forward for American space exploration. These questions were being asked even before President Trump’s inauguration. Charles Miller, a member of President Trump’s NASA transition team, argued that new commercial space companies could lead to “private American astronauts, on private space ships, circling the moon by 2020.”

At the same time, there may be government frustration at commercial companies stepping on NASA’s toes. There are concerns that commercial companies may be getting ahead of themselves, and that they should remain focused on the government contracts they are obligated to fulfill. This perspective is misguided.

Pursuing additional—and apparently funded—private missions is not likely to prevent commercial companies from undertaking their contracts with the government. In fact, if this mission pushes SpaceX to get its Falcon Heavy launch system off the ground as soon as possible, the United States will benefit from having another option for launching large payloads into orbit. The proposed mission would demonstrate that American cultivation of private space launch systems over the last decade has been successful, driving further interest—and investment—towards the stars.

That American companies are already interested in moving beyond orbit does indeed complicate long-standing assumptions behind the role of government in driving deep space exploration. Perhaps commercial companies can contribute to more than just in-orbit missions. That conversation is now suddenly much more relevant. Government investments and program developments will depend on whether the United States determines certain areas of space exploration to be the unique purview of government, or if the heavens above are open for commercial applications. That in turn will have significant impacts on private space investment and development.

To Regulate, or Not to Regulate

SpaceX’s announcement also draws focus to another policy debate that remains unresolved. Private manned missions beyond orbit do not currently fit neatly into the regulatory structure the United States has for overseeing space missions. As of now, the country only regulates launch, reentry, communications in orbit, and remote imaging. Movements in orbit, travelling beyond Earth’s orbit, or other missions do not fall within standing policies. There is a debate over how the United States should oversee these new missions—a debate that becomes more urgent now that a private company is about to undertake one of those new missions. On the regulation side, three questions arise: 1) Why should we regulate? 2) What should we regulate? and 3) Who should regulate?

The imposition of new regulations requires a compelling problem that only new oversight can fix. When it comes to regulatory gaps in space policy, there are generally two reasons used to push for new regulations. The first is that America’s international obligations compel it to put in place oversight. The second is that regulatory gaps harm the ability of companies to move forward with their missions.

The first reason is complicated. Under the 1967 Outer Space Treaty (OST), the United States must provide “authorization and continuing supervision” to private activities undertaken in space. But the treaty does not specify what either of those mandated requirements should look like. Continuing supervision is particularly tricky to unpack. Does it mean that the United States must have constant data from private space missions provided in real time, or would the requirement of “continuing supervision” be met by regular check-ins? Further, what would count as a regular check-in?

There are also experts who argue that because the treaty is not self-executing, the United States is free to determine what it considers “authorization and continuing supervision.” The legal considerations in that debate are tricky, and often difficult to parse. Suffice to say, the debate rages. It is clear, however, that because the OST does not detail specifics, states have ample room to determine how they interpret their obligation. Because of the ambiguity, the second reason to regulate—resolving harm to companies resulting from gaps in existing regulatory structure—is the more compelling problem.

The problem of regulatory gaps has been highlighted both by lawmakers and companies. They have pointed out that without explicit approval, companies undertaking new missions may not be able to assure investors that the mission won’t ultimately be prevented. Outer space is a significant national security environment, a source of international tension, and is more crowded than ever. A mission moving forward may be shut down later by nervous government officials. While unprecedented missions have moved forward through the current informal system—Moon Express was granted approval to send a private rover to the moon—there is no guarantee that there will be repeats of such approval. If one company gets approval and another doesn’t, the government would also be open to charges of favoritism. Taking all these complexities together, this informal system will likely to lead to risk-averse government officials using what authority they do have to constrain potentially controversial new missions.

Even if we acknowledge that regulatory gaps are an issue, it does not follow what those gaps cover or how to solve them. Here we can learn from America’s past regulatory adventures in space. Regulations on synthetic aperture radar, for example, simply drove the markets overseas. It would benefit nobody to have certainty in exchange for overly restrictive regulations. Take tourism to the moon, for example. There are substantial differences in resolving regulatory uncertainty by either (1) empowering an agency to grant authorization with a presumption of approval, or (2) tying authorization to a detailed list of specific regulations—everything from launch to the type of toothbrush used by private astronauts.

New missions also revive organizational questions about the United States’ space regulatory structure. For SpaceX’s proposed moon flyby, the company would have to get a positive payload review from the Federal Aviation Administration (FAA) for the capsule’s launch and reentry. If, however, the United States determines that it needs to grant an agency the authority to give permissions for deep space missions, should that authority rest under the FAA’s jurisdiction? In a recent Niskanen research paper on the future of space commercialization, I argued that there were budgetary and governance benefits to elevating space transportation issues out of the FAA into a separate Department of Transportation bureau. A separate space transportation bureau would able to better engage with the space industry as a still-maturing market. Such a bureau would also be placed under more direct supervision and engagement from Congress. At the time the paper was written, the need for such a reorganization seemed further away than the other policy issues discussed. Now, however, a proper conversation on the topic has become much more urgent.

SpaceX’s ambition is admirable, and a successful flyby of the moon would be a validation of America’s use of private expertise in space development. Even before the launch for a mission occurs, however, the company may shake up how the United States does space exploration. It answers one question: if the costs of space were lowered, would anyone beyond nation-states want to go? It seems to be the case. But it raises a host of other questions that America must now answer.