Pioneering a New Frontier: Legal and Policy Implications of the Intuitive Machines Lunar Landing

LRO views of the area surrounding the Odysseus site.

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Intuitive Machine’s successful lunar landing marked a significant milestone in space exploration, signalling the dawn of the lunar commercial space economy. This landmark achievement also raises questions about the legal and policy frameworks governing commercial space activities. We spoke with Ellis Brazeal, an aerospace attorney at Jones Walker, AIAA Public Policy Section Director, and Space Law Adjunct Professor, to gain insights into the long-term implications of this industry-disrupting breakthrough.

The Legal Landscape of Commercial Lunar Landings

The journey to space for commercial entities is not merely about technological prowess; it’s equally about navigating a complex legal terrain. Ellis discussed the foundational role of the Outer Space Treaty (OST), which laid the groundwork for commercial space endeavours.

“The US has envisioned a commercial space economy since the 1960s when the seminal Outer Space Treaty was signed. In the 1980s, Congress passed the Commercial Space Launch Act to authorize and encourage private space launches. So, the Intuitive Machines mission would not have happened but for the legal foresight of the US Government.”

The recent Intuitive Machines mission, funded in part by a $118M NASA contract, has exhibited the forward-thinking nature of U.S. governmental policies in fostering commercial space ventures. Ellis explains, “Per former NASA associate administrator, Thomas Zurbuchen, this cost is a five- to ten-fold reduction from the likely cost of such a mission undertaken by NASA, which is one of the reasons behind NASA’s policy to partner with commercial space companies.

So, from both a legal and policy standpoint, the US Government and NASA look smart, even prescient.”

Regulatory Frameworks for Lunar Missions

For companies like Intuitive Machines and Astrobotic, obtaining approval for lunar missions involves adherence to a multitude of legal and regulatory requirements. According to Ellis, under the Commercial Space Launch Act (CSLA), the Federal Aviation Administration (FAA) grants launch licenses, while the Federal Communications Commission (FCC) issues licenses for communication with ground stations. 

Additional licensing from agencies like the National Oceanic and Atmospheric Administration (NOAA) may be necessary for remote sensing capabilities like imaging capabilities directed toward Earth. The regulatory landscape is intricate but essential for ensuring the safety and legality of lunar missions.

The Role of the FAA in Regulating Lunar Missions

The FAA plays a pivotal role in regulating commercial space activities, including the launch of lunar missions. While the FCC and NOAA handle specific aspects related to communications and remote sensing, the Commercial Space Act of 2023 seeks to centralize other non-launch regulatory authority under the Office of Space Commerce of the DOC, while certain policymakers seek to do the same with the Office of Commercial Space Transportation within the FAA. 

Ellis explains that this regulatory framework aims “to deal with Space Situational Awareness and the licensing and regulation of non-launch and non-reentry space activities. So under the proposed bill, the launch and re-entry licensing would stay with the FAA, and the potential licensing of lunar landers would lie with the DOC.”

Aligning Lunar Missions with International Agreements

International agreements like the Artemis Accords, seek to foster international collaboration in lunar exploration and play a crucial role in shaping the legal landscape of commercial lunar missions. 

“Under the OST, no one can own the moon. But what about lunar resources such as water-ice and minerals? The US and numerous other countries take the position that countries and companies can extract lunar resources and thereby develop ownership rights. This was codified in the Commercial Space Launch Competitiveness Act of 2015,” explains Ellis.

“The Artemis Accords recognize both of these principles. Under the Accords, no country or company can own a portion of the Moon but can own extracted resources. The Accords further provide for the idea of “safe zones” to protect a habitation module or industrial activities.” 

Looking Ahead

“Commercial space has been a long time coming, but it’s here now,” says Ellis. The successful Intuitive Machines lunar landing heralds a new chapter in space exploration, one characterized by collaboration between governments and private enterprises. 

As commercial space activities continue to gain momentum, regulatory frameworks must evolve to address emerging challenges while fostering innovation and growth.

According to Ellis, “When the OST was being negotiated, the Soviet Union wanted to restrict the use of space to governments on the theory that private companies might not be able to pay for liability which they caused. The US agreed to indemnify private US companies, and so the OST permits private companies to enter space,” a choice that has allowed the US to leverage all available resources to push the boundaries of space exploration. 

The journey to furthering space exploration is not without its challenges, but recent achievements like the Intuitive Machines lunar landing demonstrate the immense potential of private enterprises in advancing humanity’s presence in space. By developing and properly navigating legal and regulatory frameworks, companies and government entities alike can pioneer new frontiers while upholding principles of safety, sustainability, and international cooperation. 

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