That private mission to the Moon is way more complicated than it seems

By Fusion Staff | June 9, 2016 | 2:51pm

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The Wall Street Journal reported this week that a private space exploration start-up, Moon Express, is close to getting approval from the U.S. government for an unmanned mission to the Moon in 2017. It was astounding news because if Moon Express were successful in securing the necessary permits, it would pave the way for the exploitation of space for commercial gain by mineral-mining the Moon.

Moon Express is a San Francisco-based start-up that has secured funding from private investors and NASA to fulfill its goals “for humanity to become a multi-world species.” If it’s the first private company to get to the Moon, it would also win Google’s $30 million Lunar X Prize. Its website states that “our sister world, the Moon, is an eighth continent holding vast resources than can help us enrich and secure our future.” Its three co-founders include a serial entrepreneur, an expert in search engine language processing, and a futurist who co-founded Singularity University, the Silicon Valley think tank dedicated to the idea that humans and computers will one day become one.

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We have to put a little damper on the WSJ’s report, though: People in the international space law and regulatory community don’t expect Moon Express to be landing on the heavenly body next year. The Moon and getting there are still very far away, not just because getting to space is an incredibly difficult engineering feat but because we don’t yet have a legal procedure in place to give approval to a private company that wants to go there. The American government is currently hammering out a process to make that possible in the future, but it won’t be a quick process.

The problem is that the regulation of space is extremely complicated. More than a dozen agencies covering national security, intelligence, air space, and environmental protection have to work together to ensure the safety of every step of a mission and ensure it doesn’t violate numerous international treaties and laws. There are few diplomatic mechanisms more complicated than those required to ensure that everything goes smoothly with a space launch.

In an effort to streamline these processes for U.S. commercial space ventures, including Moon Express, the White House Science and Technology office proposed in April that the Federal Aviation Authority (FAA) be made the ultimate authority on granting private mission authorizations. Beyond overseeing the airplane industry, the FAA is currently responsible for granting launch and re-entry permissions for space missions. But it has no jurisdiction over what happens in space itself—that’s where a huge number of other government agencies become involved. It’s this complexity which has so far made it unclear where and how private missions should be regulated.

A spokesman for the FAA confirmed that these processes are ongoing. “The FAA is currently working through the interagency process to ensure a mechanism is in place that permits emerging commercial space operations, such as the one that Moon Express has publicly commented on,” he wrote by email. “Once this process has concluded, the FAA would be happy to address additional questions about any decisions that have been made.”

So that’s at least a start.

But once companies get to space, there are going to be some serious questions about their plans to start mining and selling off space resources. Space has been, since the ratifying of a 1967 international treaty on space exploration, expressly the domain of all humankind, to be explored only for peaceful, non-commercial purposes. “Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means,” according to the treaty. In other words, no sovereign entity can lay claim to owning space or any foreign body sailing through it.

Corporations, however, are wont to argue that they aren’t sovereign states but solo actors who should be able to take their business wherever they want, even into the universal domain of all humanity.

The Earth is a closed system with a finite amount of resources. Private companies interested in outer space mineral mining want to find ways to harness the theoretically limitless amounts of minerals on asteroids and on the Moon and bring them back to Earth, so we can continue to make all the things we rely on non-renewable resources to produce. Like any space exploration endeavor, outer space mining presents a set of byzantine engineering problems to solve, not least of which at this early stage is that of cost/benefit: if it costs billions of dollars to get into space and extract minerals and bring them back to Earth, wouldn’t it eradicate the profits that would be made from their sale?

Rockets aside, the current interagency discussions working to establish a framework for commercial space use is only at the beginning of what could be a very long process. Lawmakers are definitely trying to speed up the process, though. In November, the U.S. passed the Space Act of 2015, which explicitly allows “US citizens to engage in the commercial exploration and exploitation of ‘space resources'” (as long as they’re not alive).

The Space Act is extremely controversial. It is worded so as not to violate international treaties, saying that mineral mining rights won’t translate to “sovereign, exclusive rights, ownership or jurisdiction over any celestial body.” This position has received significant pushback among the international law community, some of whom argue that granting minerals rights is the same thing as property rights, which would constitute an act of sovereignty, and which would make the act illegal under UN treaties.

All of which brings us back to the fundamental truth of space exploration: it is very, very hard.

While space might be the final frontier, legally it is still the wild west as far as private entities looking to stake their claim on it are concerned. Disrupting the technology side of space exploration could prove much easier than disrupting the national security laws and international treaties that still hold the world to account. The outcome of these U.S. federal regulatory discussions will be watched very closely by the international space community at large. Whether or not it’s a private venture that will eventually take humans back to the Moon very much remains to be seen.

Elmo is a writer with Real Future.