SpaceX Starlink mega constellation faces fresh legal challenge

Should the natural beauty of our night sky be protected under law, or should it be free and open for anyone to use as they see fit? That is a question many have grappled with for the past two years, since the arrival of so-called mega constellations. These vast groups of satellites number in the thousands, exemplified by California-based SpaceX’s Starlink network, which is designed to provide global Internet coverage from space—at the potential cost of despoiling the heavens as its orbiting components reflect sunlight to the ground. By some estimates, in the coming years, thousands of these satellites could be visible in the night sky at any given hour. Now a US court may be on the cusp of ruling on the issue for the first time. One way or the other, that decision could have ramifications across the satellite industry, astronomy and our very culture itself. And depending on the outcome, it might well be contested in the Supreme Court.

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Last year Scientific American was the first outlet to report on a paper in the Vanderbilt Journal of Entertainment and Technology Law that argued that the Federal Communications Commission’s (FCC’s) approval of mega constellations such as Starlink may have been in breach of US environmental law—specifically, the National Environmental Policy Act (NEPA). Since 1986, the FCC has had a “categorical exclusion” that means almost none of its activities require an environmental review under NEPA. The paper argued this exclusion should no longer be valid, considering the FCC’s current activities, particularly its licensing of satellites in space. “It’s clear from a legal standpoint that the FCC is not following NEPA,” says Ramon Ryan, a recent law graduate of Vanderbilt University and the paper’s author.

Questions remain, however, over arguments that NEPA should extend to space. To date, no court has ruled on the issue. Now the matter is set to be put to the test: The California-based communications company Viasat, which operates a rival satellite Internet service, submitted a filing to the US Court of Appeals for the District of Columbia Circuit asking for a reassessment of the FCC’s licensing of some Starlink satellites. While the filing only relates to a recent modification to lower the planned altitudes of about 3,000 Starlink satellites, the case could set a precedent that will force the agency to consider any future satellite licenses’ impact on the night sky. “I think the FCC is very vulnerable,” says a former FCC official. “I don’t think they have the documentation to explain to a court why NEPA doesn’t apply.”

“We’re Very Concerned”

Among several issues raised in the filing, Viasat cites satellites’ effect on the night sky and asks the court to halt the approval of the 3,000 Starlink ones while a NEPA environmental review is conducted. “Everyone agrees that we can tell that what’s happening has an impact on the atmosphere, it has an impact on the night sky, and it has an impact on space,” says John Janka, chief officer of Viasat’s global regulatory and government affairs. “But nobody has quantified it or determined how best to mitigate it.” As such, Viasat is asking the court to “clarify what the rules are for all of us,” he says. “Our company’s been around for 35 years. We’re planning on being active for the foreseeable future, and we’re very concerned about what’s happening.”

The outcome of the case could provide US courts’ first written record on whether the natural aesthetic of our night sky is protected under environmental law. “It’s really exciting to watch and see if the court agrees with my analysis,” Ryan says. The process is not expected to be especially quick: it could be up to a year or more before a decision is reached. Yet whatever the outcome, the losing party—be it Viasat or the FCC—would have the option of escalating the case for review. “There’s a nontrivial chance this could go to the Supreme Court,” says Kevin Bell of the nonprofit organization Public Employees for Environmental Responsibility. Given that the US’s highest court is conservative-leaning, thanks to Donald Trump’s appointees, and thus generally supportive of restricting NEPA, that scenario could favour the FCC, Bell says. The FCC declined a request to comment on the ongoing litigation.

Admittedly, the chances of the case reaching the Supreme Court are relatively slim, says Sarah Bordelon, a Nevada-based environmental lawyer at the law firm Holland & Hart. “The odds of a Supreme Court review are pretty rare,” she says, considering that thousands of cases are submitted for review each year, and only a small number are selected. Yet even if it does not reach the Supreme Court, the outcome of the case at the Court of Appeals could “set new NEPA law,” Bordelon says. “It will be precedent. This is something that is worth following.”

Metal Skies

An outcome in favour of Viasat might be welcome news to many astronomers. The current projected impacts of mega constellations on their studies of the heavens are expected to be stark. If all publicly known plans for such systems proceed—including mega constellations from the US, China and the U.K.—there could soon be about 65,000 satellites in orbit. That figure would far eclipse the current number of all active satellites, which is approaching 4,000. A recent analysis by Samantha Lawler of the University of Regina in Saskatchewan and Aaron Boley of the University of British Columbia shows that, in this event, there would be “more than 2,500 satellites visible all night during the summer,” Lawler says. “I was really horrified to see that number. You would potentially be seeing more satellites than stars for most of the population of North America and Europe. I can’t imagine my kids growing up with that.”

These satellites would significantly hamper astronomical studies of the universe: streaks of them would impact surveys of the night sky and the imaging of distant stars and galaxies, rendering some batches of observations essentially unusable. “There will be some lost data and some things we are unable to discover,” says Meredith Rawls of the University of Washington, who is chairing a group is assessing how to deal with mega constellations for a virtual conference called Satellite Constellations 2 (SATCON2) next month. “That’s what worries me the most.” And there would be a cultural impact in the changing of the night sky, too—and it might have unforeseen consequences. “A good example is the Native Hawaiian/Polynesian tradition of wayfinding,” says Aparna Venkatesan of the University of San Francisco, who is assessing the cultural impact of mega constellations for SATCON2. “It’s celestial non-instrument navigation where you read wind and ocean currents but also the stars. [Natural] constellations at dawn and dusk are very important. We want to make sure [satellites] don’t interfere with [such] cultural traditions.”

Some efforts are already underway to lessen the effects of mega constellations on astronomy. SpaceX, which has already launched more than 1,400 Starlink satellites, has been working with astronomers to reduce the glare from its sunlit satellites with some measure of success. But while they are now almost dim enough to not pose problems to large surveys of the night sky, their impacts on other areas of astronomy are likely to be unsolvable. “To put them in the range of ‘no concern,’ they would need to be at least 100 times dimmer,” says Richard Green of the University of Arizona, who is chairing a SATCON2 group investigating policy issues surrounding mega constellations. “That’s moving beyond the range of physical possibility.”

Chasing Regulation

Even if SpaceX is willing to voluntarily address the impacts of its satellites on the night sky, there are concerns that other countries and companies might not be so cooperative. China, which has plans to launch a constellation of 13,000 satellites, has been characteristically silent on the issue. Lynk, a US company that wants to launch 5,000 satellites, did not respond to a request for comment. Amazon plans for a more than 3,000-strong Project Kuiper constellation, and a spokesperson for the company told Scientific American that the reflectivity of its satellites was a “key consideration” and that they would be oriented to “minimize reflective surfaces while in orbit.” But Amazon has not released any details on the design of its satellites. The U.K.-based company OneWeb has launched more than 200 satellites in a planned constellation of 648 and has sought a license for thousands more. A spokesperson for OneWeb told Scientific American that it had held discussions with astronomical groups “to understand the impact that satellites have on observational activities” and that it was “undertaking brightness measurements” but declined to provide details on any design measures the firm is considering to address the issue.

Outside of the US, efforts are underway to draw up new international rules on satellite brightness through the United Nations. In April 2021 Piero Benvenuti, former general secretary of the International Astronomical Union, presented a report to the UN’s Committee on the Peaceful Uses of Outer Space about the effects of satellites on astronomy and the night sky. Although those discussions were promising, with 18 out of 90 delegations showing support for the findings, no consensus about taking action was reached. The matter will be discussed again at a meeting in August, and a conference in October will investigate it further. “Our goal, which will be very hard to achieve, is to get some regulation that mitigates the negative impact on astronomy,” Benvenuti says. “I’m a bit sceptical. The best we could achieve [might be] a set of guidelines.”

Whatever the outcome of the discussions at the UN or the legal action taking place in the US, it appears increasingly likely that astronomers and the public may simply need to learn to live with mega constellations. And while many will hope the impacts of these satellite swarms can be lessened as much as possible, their arrival also heralds a new era in the use of space in which frequent, low-cost launches—and an ever mushrooming amount of orbital clutter—become the norm. “The emergence of these large constellations is a fundamental step-change in how we use space,” says Brian Weeden of the Secure World Foundation, a nonprofit organization that promotes space sustainability. “Even if the court rules and says NEPA does apply to the night sky, that’s just the beginning.”