Elon Musk’s SpaceX has disrupted long-held beliefs of how the space business works and permanently expanded thinking about government contracting with industry. This impact has been felt throughout the national security, civil, and commercial space enterprises. Because of the lawsuit that it settled with the Air Force in 2015, old assumptions about the government’s launch market for national security launch services are gone. Over the last six years, cost, capability, and reliability have driven government contracting for launching military satellites and cargo to space, with taxpayers and national security reaping the benefits. However, as a leader in private spaceflight, SpaceX must also set a better example for the entire industry in working with the regulatory bodies that safeguard and advance private spaceflight’s future.
SpaceX’s Starship recently exploded after appearing to land successfully. Test flights frequently explode; failure is all part of the industry’s learning curve. That said, this is SpaceX’s third Starship explosion in a row, and the Federal Aviation Administration said that the company violated its FAA launch license in the first of the three explosions.
Per the agency, SpaceX “sought a waiver to exceed the maximum public risk allowed by federal safety regulations” but still proceeded with the launch after having that request denied. Musk criticized the agency, stating that “the FAA space division has a fundamentally broken regulatory structure.” As a former Acting Chief of Staff for the Federal Aviation Administration’s Office of Commercial Space Transportation and a Deputy Executive Secretary for the National Space Council, I can say with confidence that this characterization of the current regulatory structure just does not reflect reality. The regulatory system can and should be better (a cause I have personally championed throughout my career), but the FAA’s commercial space regulations are among the least restrictive and most flexible laws that commercial space operations face when dealing with the federal government.
The rules the FAA currently has on the books are far from controversial. They merely ensure that launches do not impose an undue burden of safety risk on the airspace or the public. The bar to receive FAA approval is not very high, either. In my experience with the agency, it never once denied a launch license and only ever demanded modifications to launch licenses when a proposed operation put public health and safety or national security at risk — the standard under federal law.
The FAA has a dual mandate that has served the U.S. launch industry well. Not only is the agency required first and foremost to protect public health and safety, but it is also required to encourage, facilitate, and promote the industry. This dual mandate effectively limits any FAA inclination to overregulate and is why the launch industry generally works well with the FAA’s Office of Commercial Space Transportation. Congress had the foresight in the Commercial Space Launch Act to ensure that the regulation of commercial spaceflight was both safe and in the best interests of a vibrant industry.
To meet the needs of this growing industry, the FAA has been streamlining existing regulations to make space launches easier and less costly. In October 2020, the agency issued its Streamlined Launch and Reentry Licensing Requirements Rule (SLR2). This blockbuster regulatory change increased flexibility for launch operations by, among other reforms, requiring just one license for all types of commercial spaceflight.
At the time of release, the agency described this new rule as allowing launch and reentry vehicle operators to focus on innovation by replacing “cumbersome, prescriptive requirements with flexible, performance-based criteria.” This reform was a direct result of intense industry input — SpaceX’s included — and demands by the Trump administration and Congress to streamline the process for launch and reentry regulations. The rule is set to go into effect at the end of this month, and the industry is currently working to understand how the new regulations will work in practice. This includes dialogue with the FAA. If SpaceX has an issue with the rules as they exist, the way to fix it is to debate it with facts and data, not complain via tweet and attack the very people trying to help private spaceflight companies succeed. This country’s launch industry is at its best and most competitive when industry and regulators work together to make us stronger.
Should companies disregard the rules and actions of U.S. regulatory bodies, procurement officers will quickly begin to lose confidence in their abilities to deliver on public contracts for national security and scientific missions. That would spell trouble for not only these companies, but also competition, taxpayers, and the future of the industry itself. Should there be an accident in which members of the public are hurt or killed because of disregarding the supportive rules now in place, it is easy to imagine calls for more restrictive rules. Neither industry nor the United States would benefit from rules that unduly stifled innovation.
Private spaceflight companies can help to lead the way in advancing the United States’ national security and exploration goals, but they must ensure that they don’t get their heads stuck above the clouds and undermine the gains they’ve brought to the industry in the process.
Jared Zambrano-Stout is a former Acting Chief of Staff for the Federal Aviation Administration’s Office of Commercial Space Transportation and a former Deputy Executive Secretary and Chief of Staff for the National Space Council. He currently serves as a freelance author and the Director of Congressional and Regulatory Policy at Meeks, Butera & Israel, PLLC.