Planetary protection issues Earth > Mars and Mars > Earth

[ThatOldJanxSpirit]

And no the FAA will not reference COSPAR, it'll reference US case law and the treaty directly because COSPAR is not legally binding.

See FAA Advisory Circular 450.31-1 section 7.4.3:

7.4.3
Planetary Protections.
If any element of the launch vehicle, primary spacecraft, or secondary payload that has
sufficient propulsion to leave Earth orbit and reach the Moon or a more distant solar
system body, an operator should indicate any planetary protection measures it will
implement. The operator should use reasonable efforts to implement planetary
protection measures generally consistent with the Committee on Space
Research Planetary Protection Policy and Guidelines (COSPAR) including harmful
contamination. COSPAR guidelines are an accepted approach for the United States
Government (U.S.G.) to comply with harmful contamination obligations under
Article IX of the Outer Space Treaty. The following information should be provided by
the operator to facilitate review of a proposed operation:
1. Missions to the Surface of the Moon:
a. An inventory of propulsion products released into the lunar environment,
b. Additionally, for missions to permanently shadowed regions or the lunar poles,
an inventory of organic substances since there may be water or ice there.
2. Missions to other Solar System Bodies:
a. Description of the energetic potential of the primary launch vehicle, second
stage, cruise stage, and additional independent propulsion systems on primary
and secondary payloads.
b. Description of trajectory including flybys or gravity assists of celestial objects
and orbital insertion or landing at the destination.
c. Assessment of forward planetary protection contamination (i.e., biological
contamination to other celestial bodies) and associated mitigation strategy for
celestial objects along the trajectory and at the orbiting or landed destination.
3. Missions with Earth Return:
a. From the Moon, an inventory of Moon materials during planned or unplanned
Earth reentry.
b. From all other solar system bodies, an applicable risk assessment for backward
planetary protection (risk to public health and safety) during planned or
unplanned Earth reentry or entry into the Earth-Moon system.

Should, reasonable, generally consistent and accepted are not the language of a legal requirement. All the FAA says here is that there will be no trouble if you do your best to meet COSPAR. It does not preclude getting a launch licence if you take a different approach.

That also means that if you do not want to follow the COSPAR guidance, you need to do the work to prove to the FAA's (and the USG in general) satisfaction that whatever you want to do instead allows the USG to meet its OST obligations - who themselves need to convince other signatories that whatever this new thing is complies with the OST.

Precisely, SpaceX will need to demonstrate that it meets a legal interpretation of ‘no harm’. The question is who is the arbiter of that definition. The answer will not be COSPAR, but it well may be the US court system which will have a very different view point.

With Starlink’s impact on astronomy SpaceX showed a great willingness to work pragmatically with the scientific community. I’m expecting to see this approach applied here to develop effective, workable, risk based planetary protection best practice.

And it will still end up in court.

[mlindner]

Can we get past constantly repeating the same thing as if people don't understand it? I fully understand that the USG is the responsible party for the following the OST. Repeating it over and over again in a somewhat condescending manner just becomes grating. It continues to be however irrelevant to my point and my previous posts.

I forget what it's called but it's commonly done thing on the internet where people try to repeatedly bring up the same point over and over again as if it suddenly resolves everything. That's what's being done here.

[RedLineTrain]

This means FAA cannot use OST Article VI as basis to regulate planetary protection until Congress actually passes law to this effect.

With respect to commercial launch licenses, Congress has passed that law in FAA’s enabling legislation, which gives the Secretary of Transportation the power to determine what regulations licensees must meet to launch from US soil.

You keep reiterating this, and I agree that the FAA's enabling legislation is very broad and general.  However, I'm not so sure that such unlimited and vague authorization would hold up using the new Supreme Court standards.  I think that these standards would require a great deal of specificity in the authorizing language in order to pass muster as it relates to planetary protection and other such major questions.  True that there appears to be some variability in viewpoints on the court on these issues.

It would be pretty wild if either of the next two Mars windows are the subject of Supreme Court arguments.  It wouldn't surprise me I guess, given all that has happened recently in this timeline.

[zubenelgenubi]

Moderator:
Are we learning anything in this thread?  Or are the same people arguing the same contested items repeatedly?

[edzieba]

The FAA does not have a legal interpretation of the outer space treaty and when the time comes they will come up with their own through a rule making process with input from industry.

The time came over half a decade ago with the launch of Beresheet, and the FAA went with COSPAR's guidance, as linked above.

[thespacecow]

The FAA does not have a legal interpretation of the outer space treaty and when the time comes they will come up with their own through a rule making process with input from industry.

The time came over half a decade ago with the launch of Beresheet, and the FAA went with COSPAR's guidance, as linked above.

The Beresheet precedence is not meaningful because:
1. NASA's planetary protection policy regarding the Moon is very relaxed, so it's much easier for companies to just follow the policy rather than fighting the government over this.
2. And the companies involved are small ones, they don't have the resource or the time to fight the government even if they wanted to.
3. So the company went with NASA's PP policy for convenience, this does not mean COSPAR guidance is being enforced by FAA. For one thing SpaceIL specifically stated they're following NASA's PP policy, not COSPAR. And it's possible they did this voluntarily instead of being forced by FAA. So this precedence does not prove that COSPAR is the only way to fulfill planetary protection requirement or that FAA has the authority to levy this requirement in the first place.
4. More importantly the legal landscape has changed significantly since Beresheet. The Supreme Court's 2022 "major questions doctrine" decision and this year's Chevron decision have made it clear that regulators cannot exceed the authority granted by Congress. This casts major doubt over whether FAA has the authority to require planetary protection in their launch licensing process, given Congress has never granted the authority for planetary protection to any agency.

But all of these is moot anyway given the change of administration.

[Slarty1080]

Moderator:
Are we learning anything in this thread?  Or are the same people arguing the same contested items repeatedly?

It's a bit thin at the moment but unless someone does something really silly (and forces thread closure) it would be interesting to see what happens over the next year or so as all sorts of pots will be stirred and cages rattled for better or worse on this issue so there might be developments. And some of us just keep a watching brief.

[Robotbeat]

Moderator:
Are we learning anything in this thread?  Or are the same people arguing the same contested items repeatedly?

I actually have learned new things.

And the FAA and NASA are under the executive branch. So a change in the executive will mean policies likely to change (just as there was from 2017-2020 to 2021-2024), so this thread will be… interesting.

(Policies that didn’t require Congressional involvement to enact also don’t require Congressional involvement to reverse or change.)

BUT, given the political nature, I can see this thread ending up in the Space Policy section.

[thespacecow]

I hope this thread stays here, since some of us couldn't comment in space policy section.

Anyway, regarding possible changes to planetary protection under the new administration, I hope they be bold and strive to establish long lasting changes, in stead of just focusing on the short term. My guess is Starship Mars landings in the next 2 windows will just get worked out between NASA PPO and SpaceX, without the need for direct intervention from the administration. So really the focus should be what happens in the next few decades, I'm hoping for a total reset of the concept of planetary protection, ideally with Congressional laws to back it up. If administration has to trade some horses to make this happen (for example, keep SLS alive), then so be it.

Some preliminary thoughts on what the new administration can do wrt planetary protection:
1. Clarify it is USG's position that Earth biology (including humans) are NOT "harmful contamination" wrt OST Article IX. Make it clear that promulgate Earth biosphere to other planets is our Manifest Destiny.
2. This will remove the legal basis for forward planetary protection all together. Science agencies are free to practice forward planetary protection based on their own mission requirement, but nobody has the authority to make anybody else do it.
3. Science missions that require forward planetary protection will enjoy "no harmful interference" protection in Article IX, just like any other space missions, no more, no less. They can establish a "safety zone" as specified in Artemis Accords section 11, but its size has to be reasonable. Just like we don't want a single Chinese lunar lander to claim the entire south pole as "safety zone", we don't want a single science Mars lander to claim large part of Mars (let alone the whole planet) as "safety zone". The exact mechanism for establishing "safety zone" will need some additional work to flesh out, this is true for the Moon as well. Ideally it'll involve consultations similar to those between astronomers and Starlink.

[VSECOTSPE]

On the issue of whether Articles VI and IX of the OST are self-executing, I am not convinced that they are self-executing...

Having said that, it is possible that the implementing legislation of the OST is in the text that you quoted...

The US Senate ratified the OST in 1967, and Congress gave the Secretary of Transportation the power of deciding what regulations — including those relevant to US foreign policy interests — apply to commercial launch licenses from US soil in 1984.  So the whole “self-executing” argument is a side one here.  For the purposes of commercial launch licenses, it doesn’t matter whether the OST is self-executing on its own or not.  Congress has given the Secretary of Transportation the power to decide whether the OST applies to commercial launch licenses or not.  For the purposes of commercial launch licenses from US soil, the OST “got executed” by the Commercial Space Launch Act. It would be very specious and frankly goofy to argue that after being granted launch regulatory power by Congress, successive Secretaries of Transportation should have ignored the world’s major treaty on space operations in their commercial launch licensing regulations for the past four decades now.

although it's still not clear to me if the FAA-OST has authority over on-orbit activities

On-orbit activities are things that happen after launch, like spacecraft maneuvers, comms, venting, obs, etc.  FAA does _not_ currently have the authority to direct a spacecraft operator to change these operations.  Given the increasing congestion in LEO, some argue that the FAA or someone in the USG needs this power as a last resort to avoid collisions and other space traffic issues.  I agree.  We’ve had recent close calls where if commercial operators were not cooperative/lucky, we could have added tens of thousands of items of space debris to critical orbits.  The day is coming soon where an operator is going to have to screw up their downlink (or whatever) for 90 minutes (or whatever) so an orbit isn’t screwed up for the next 900 years.

The power to direct changes in on-orbit operations is entirely different from launch licensing.  If someone has already launched, then the FAA has done enough due diligence to know that the operator in question does not plan to do something nefarious on orbit, even if they might have to be asked to temporarily change an orbit to avoid a collision at some unforeseen point in the future.  But if it is the intent of a commercial space operator to ram other spacecraft on orbit and create massive debris fields, then the USG does not have to grant a launch license from US soil and is arguably obligated not to unless the US taxpayer wants to be responsible for footing the bill for the damage and cleanup.

The Guidelines are just that "guidelines".

They’re guidelines that have to be met in order to obtain a commercial launch license from US soil.  A commercial operator can’t ignore the paperwork, say “screw these guidelines cause they’re not law”, and still expect to be granted a license to launch a spacecraft that intends to, say, crash land an active nuclear reactor into Europa’s ocean.

My eldest kid will be old enough to take his written driver’s test soon.  I don’t know for sure, but I’m guessing our state law does not specify what questions should be on that test, how long the test should take, or even that there should be a written test in the first place.  These things are (likely) delegated to the state department of transportation, which in turn probably issues guidelines, regulations, or similar.  My kid can’t refuse to take the written test because it hasn’t been written into law in enough specificity for him and still expect to get his learner’s permit.  Or fail the written test, claim it doesn’t matter because it’s derived from guidelines and regs, and still expect to get his learner’s permit. 

It’s just not the way law, regulations, and the world work.  No one should expect commercial launch licensing to be different.

Planetary Protection is a NASA policy.

NASA policy is effectively the US policy because there is no alternative organization or standard for the FAA to turn to within the USG to determine whether a commercial launch license conforms to planetary protection standards.  That said, NASA policy conforms to COSPAR guidelines.  It is the US implementation of those guidelines.

Article VI of the outer space treaty is not planetary protection.

Planetary protection derives from Article I, which provides for freedom of scientific investigation, Articles VI thru VIII, which address responsibility, liability, jurisdiction, and control, and Article IX, which avoids the harmful contamination of other worlds and adverse changes to the environment of Earth.  Put simply, you can’t contaminate sites of scientific interest on other worlds, and you can’t bring the Andromeda Strain back to Earth.  If you do and you had a commercial launch license from US soil, then the USG is liable.  Additionally, if foreign governments suspect that the USG will support such a potentially damaging launch from its soil, they have the right to consultations under Article IX and the right to resolution via international organization under Article XIII.

What I expect to happen in the next four years is that SpaceX will work closely with NASA to develop workable best practice for commercial Mars missions.

Maybe.  Everyone is excited about the possibility of 2026 Starship launches to Mars, but Elon time and all...

This will likely look nothing like current COSPAR ivory tower thinking.

Not sure what ivory tower means in this context.  Although there are probably some university researchers moonlighting as representatives of their governments, COSPAR isn’t an academic organization.  It’s a rule-making body and most members will be representatives of their governments with relevant expertise.

COSPAR has done quite a bit of work (see upthread) and leadership could probably bang out a draft set of human Mars surface guidelines in a weekend if/when needed.

I would be surprised if US courts would act to stop one way missions; establishing that forward contamination is harmful to anything is challenging.

Forward contamination is harmful to research interests.  That’s spelled out in the OST, has numerous parallels on Earth (archeological sites, unique ecosystems, etc.), and would draw complaints from researchers and their organizations in academia, governments, and even some industry.

The interesting case will be on return flights where the defence may have to demonstrate that they won’t unleash a world ending plague!

This is serious, highly technical stuff with worldwide, civilization-altering implications.  It’s not whether New England fishermen have to pay for the regulators on their boats.  It’s things that look like ICBMs to nuclear attack early warning systems around the globe launching other things that could potentially mix biologies and ecosystems from different worlds for the first time in billions of years.  It’s the sort of thing courts defer to experts and regulators on, regardless of whether they align with the interests of the bazillionaire that we’re rooting for.

Precisely, SpaceX will need to demonstrate that it meets a legal interpretation of ‘no harm’. The question is who is the arbiter of that definition. The answer will not be COSPAR, but it well may be the US court system which will have a very different view point.

Per the Commercial Space Launch Act of 1984, or will be the FAA.  And the FAA uses NASA for PP.  And NASA will either conform to COSPAR guidelines if they exist or develop its own human Mars guidelines if they do not but that will be very close to whatever COSPAR would have come up with anyway.

The time came over half a decade ago with the launch of Beresheet, and the FAA went with COSPAR's guidance, as linked above.

Ed is right here.  The only wrinkle is that COSPAR doesn’t yet have guidelines for human Mars missions.  If they drag their feet, NASA will develop its own.  If not, NASA’s implementation will almost certainly conform to COSPAR.  (IIRC, the NASA PP lead chairs COSPAR.)

You keep reiterating this, and I agree that the FAA's enabling legislation is very broad and general.  However, I'm not so sure that such unlimited and vague authorization would hold up using the new Supreme Court standards.  I think that these standards would require a great deal of specificity in the authorizing language in order to pass muster

The Loper Bright case and ruling is not a challenge to all regulations.  It’s not a challenge to broad, general, or even “unlimited” (whatever that might mean) regulations.  It’s a challenge to regulations where Congress has not assigned authority to the agency implementing the regulation in question.  That is _not_ the case here.  The Commercial Space Launch Act of 1984 is clear that Congress wants the Secretary of Transportation (not Congress or the courts) to determine what regulations apply to commercial launch licenses from US soil including, but not limited to, regulations derived from the foreign policy interests of the United States.

The Secretary of Transportation could declare that a chauffeured ride to see every launch for his pet cat Fluffy is in the US interest, put that in the commercial launch regs, and it would stand up to the letter of the law — even though it would certainly fail in the courts on the spirit and probably land the Secretary in a criminal waste and abuse case.  Folks have probably not paid attention to what SpaceX has been required to do under FAA agreements to get its licenses at Starbase.  The one that sticks out in my head is paying for an educational exhibit related to the Native Americans that once inhabited that area.  There’s been no court challenge or even complaint about stuff like that with little or no connection to the actual business of commercial space launch.  So given that’s where we’re at, even mounting a court challenge, nevertheless being successful, on something like PP that is obviously and directly related to commercial space launch, is arguably a fantasy.

It’s a fantasy we like to engage in because we’re all sick of paying taxes or dealing with the local zoning board or whatever government irritant upsets our daily lives, and we want to see someone, anyone, even if it’s a bazillionaire, stick it to govt on something, anything, even if it’s as obscure as PP.  But these fantasies don’t mean it’s going to happen.

The Beresheet precedence is not meaningful because:

It’s meaningful in terms of precedent.  It showed that the process worked and how it will work going forward.  Precedent matters in regulation and law.

1. NASA's planetary protection policy regarding the Moon is very relaxed, so it's much easier for companies to just follow the policy rather than fighting the government over this.
2. And the companies involved are small ones, they don't have the resource or the time to fight the government even if they wanted to.
3. So the company went with NASA's PP policy for convenience,

This is all made up based on assumptions about the preferences and intent in the minds of the folks at SpaceIL, none of which are in evidence.

this does not mean COSPAR guidance is being enforced by FAA. For one thing SpaceIL specifically stated they're following NASA's PP policy, not COSPAR. And it's possible they did this voluntarily instead of being forced by FAA. So this precedence does not prove that COSPAR is the only way to fulfill planetary protection requirement or that FAA has the authority to levy this requirement in the first place.

FAA is enforcing COSPAR guidelines.  FAA uses NASA’s PP office for this, and NASA PP conforms to COSPAR.

4. More importantly the legal landscape has changed significantly since Beresheet. The Supreme Court's 2022 "major questions doctrine" decision and this year's Chevron decision have made it clear that regulators cannot exceed the authority granted by Congress. This casts major doubt over whether FAA has the authority to require planetary protection in their launch licensing process, given Congress has never granted the authority for planetary protection to any agency.

Congress didn’t want to be responsible for determining what regulations, including those based on the foreign policy interests of the United States, do and do not apply to US commercial launch license regs so they delegated that authority to the Secretary of Transportation in the Commercial Space Launch Act of 1984.  Chevron didn’t apply back then, and Loper Bright doesn’t apply now.

But all of these is moot anyway given the change of administration.

If (big “if”) SX advances to a Starship launch to Mars in the next four years and if COSPAR has not developed a set of human Mars surface mission guidelines, then NASA PP will develop the same and the FAA will apply them.  In theory, if Musk doesn’t like them and if (big “if”) the Trump/Musk relationship is intact, he could ask the WH to pressure the FAA and NASA.  As long as NASA PP allows Starship landings somewhere reasonable on Mars and given the international repercussions, it’s hard to see Musk wasting his political capital on this.  Anything is possible, but given everything that has to happen to wind up in that timeline, it seems very unlikely.

[yg1968]

They’re guidelines that have to be met in order to obtain a commercial launch license from US soil.  A commercial operator can’t ignore the paperwork, say “screw these guidelines cause they’re not law”, and still expect to be granted a license to launch a spacecraft that intends to, say, crash land an active nuclear reactor into Europa’s ocean. [...]

It’s just not the way law, regulations, and the world work.  No one should expect commercial launch licensing to be different.

The point is that the process could be contested in court if it is too burdensome or the executive branch could decide on its own to change its requirements.

Additionally, if foreign governments suspect that the USG will support such a potentially damaging launch from its soil, they have the right to consultations under Article IX and the right to resolution via international organization under Article XIII.

Article XIII seems to be saying that if activities are carried through an international organization, issues could also be addressed through that organization but I don't think that is relevant here.

It’s meaningful in terms of precedent.  It showed that the process worked and how it will work going forward.  Precedent matters in regulation and law.

Precedence is usually not that important. Under domestic law, a precedent under case law (under common law systems) can be binding but we are not talking about a court case here. Under international law, precedent can sometimes show how something has been construed by states but it is not really binding. Precedent can create binding customary international law but it takes a lot more than precedent to create customary law.

[meekGee]

Moderator:
Are we learning anything in this thread?  Or are the same people arguing the same contested items repeatedly?

Ehat we're learning is that there's enough leeway in the treaties/legislation/regulations/precedence that an administration can choose to either support or hinder whatever it wants to. 

There's no ironclad language anywhere that would actually bind an administration to a certain course of action.

And that's usually the case anyway, it's just hard hard the lawyers and politicians have to wiggle in order to justify what they want to do.

[VSECOTSPE]

The point is that the process could be contested in court if it is too burdensome or the executive branch could decide on its own to change its requirements.

Mountain out of a (non-existent) molehill.  The reality is that FAA’s PP info requests don’t even fill up one page and consist of only two or three actual info requests, depending on the destination.  If/when COSPAR and/or NASA address large Mars landers/human Mars landings, they’re just going to straightforwardly recommend that certain sites/regions of scientific interest/high contamination risk be placed off limits for those missions until we know more.  We know this from NRC studies on the problem.

The FAA is in the process of trying to revamp its commercial launch licensing process for a new era of more frequent launches.  Some more onerous paperwork and reviews are going to have to be consolidated and/or dealt with once instead of repeatedly.  (And the agency is going to have to be better funded.)  PP isn’t one of those things.  Frankly, given the extremely high and uncertain stakes for planetary research and for our home biosphere, I’d argue the FAA should be more explicit, rigorous, and demanding on PP.  I think I’m asked more questions about what animals and plants I’m bringing back from abroad on international flights than what the FAA is asking on PP.

Article XIII seems to be saying that if activities are carried through an international organization, issues could also be addressed through that organization but I don't think that is relevant here.

You’re right for a purely SX Starship landings on Mars.  But the reality is that NASA will probably have involvement with payloads, providing comms support, providing tracking support, lending expertise under SAAs, etc.  And ESA and/or the ISS partnership are involved in most NASA things — instruments, guest investigators, expanding the NASA comms/tracking footprint, etc. 

Precedence is usually not that important. Under domestic law, a precedent under case law (under common law systems) can be binding but we are not talking about a court case here.

Regulatory precedence, which can be important if headed to court, but has importance outside the courts regardless in terms of creating a stable and certain operating environment for the private sector.  You want regulatory systems to change when they are obviously providing little protection, are outdated, are too onerous, and/or too vague.  You don’t want regulatory systems to change every time there’s an election, every time some company or someone with a large checkbook writes a big enough check, or every time a random congressman or bureaucrat (or space cadet like us) thinks they have a bright idea.

There's no ironclad language anywhere that would actually bind an administration to a certain course of action.

It’s not laws, agreements, and norms themselves that bind action, but the consequences of not following laws, agreements, and norms that bind action.  When driving, I stop at an intersection even when I see no traffic, not because I’m a good guy (although hopefully I am) but because I don’t want a ticket from an unseen cop or camera and also because I don’t want the liability in the event my actions do cause an accident.  Same holds true for the USG writ large, SX, and anyone else headed to Mars.  They don’t want the blowback, liabilities, court cases, lost partnerships, lost business, etc. that would come from contaminating research sites at Mars or bringing extraterrestrial biology back to Earth.  They want experts to tell them how to the best of our current knowledge avoid those outcomes, gets that codified in reasonable rules that (most, there will always be foreign holdouts) everyone agrees to, and proceed from there.  The wrinkle here is that this has not been formally done with respect to large landed/human missions to Mars, which makes some of us space cadets nervous.  But we can see from NRC studies how the science community is going to address this, and it doesn’t conflict with doing those missions over large parts of Mars.

Little of lasting economic value or other utility gets done in a lawless, unregulated environment.  The risks are too high for most investors, and those that do take the risk end up losing because of the externalities of unregulated environments that have nothing to do with the actual task at hand.  This is why we have the Artemis Accords — to put in place some bare bones agreements about the use of lunar resources, non-interference, etc. at the Moon.  Without them or something like them, only governments will be able to take on the risks of that frontier over the long-term, something that has arguably held back lunar development since Apollo.  Similar rules of the road for the specific environment at Mars will be needed there.

[yg1968]

Moderator:
Are we learning anything in this thread?  Or are the same people arguing the same contested items repeatedly?

Ehat we're learning is that there's enough leeway in the treaties/legislation/regulations/precedence that an administration can choose to either support or hinder whatever it wants to. 

There's no ironclad language anywhere that would actually bind an administration to a certain course of action.

And that's usually the case anyway, it's just hard hard the lawyers and politicians have to wiggle in order to justify what they want to do.

It's on purpose. More and more international law is soft law including the Artemis Accords (which is essentially a non-binding multilateral political agreement). It's harder and harder to get countries to sign international treaties, so the solution is to have non-binding international agreements which are easier for countries to accept.

[StraumliBlight]

NASA's Mars Future Plan discusses planetary protection. [Dec 11]

Novel technologies to reach unique areas of astrobiological interest are maturing at a critical time. With human exploration on the near horizon, MEP has very limited time remaining to conduct science in a pristine Martian environment, free from the biological influence humans would inevitably bring to Mars, even with enclosed systems (e.g., suits, habitats, vehicles).

Human explorers would carry with them vast amounts of Earth-based microbes that are a natural part of the human biome and essential to healthy bodily functions. These microbes could potentially survive, adapt, and spread on Mars. It would not be possible to reduce these Earth-based microbial populations in the same manner as that for robotic missions (e.g., through heating and sterilization processes). Therefore, without a better understanding of how life from Earth may spread or survive on the Red Planet, a human presence could complicate Martian life-detection efforts.