On June 28, 2024, the United States Supreme Court cut back sharply on the power of federal agencies to interpret the laws that they administer and ruled that courts should rely on their own interpretation of ambiguous laws instead, upending nearly 40 years of government practice. That seismic decision will have far-reaching effects across the United States from environmental regulation to health care costs. And what about in space? Well, let's learn more about that. Welcome to T-minus Deep Space from N2K Networks. I'm Maria Varmausis. Under the Chevron doctrine, if Congress had not directly addressed the question at the center of a dispute, a court was required to uphold the agency's interpretation of the statute as long as it was reasonable. But that ruling has now been overturned. I spoke to Attorney Michael Listner about what he believed the knock-on effect will be on the space industry. My name is Michael Jay Listner. I am an attorney here in the state of New Hampshire. I'm a noted authority in the areas of outer space law and policy, among other things. Very much appreciate your expertise. And you coming on the show to walk us through a question in an area that I think a lot of people have been having since what I know as the footnote as, the overturning of Chevron. That is sort of like pretty much all I know it as. When I heard about the ruling, I was going, okay, what does on earth does this mean for space? So I guess that's just where we start. So maybe we just real basic table stakes. What are we referring to when we talk about all this? Like, what is this? 1984, the Supreme Court heard a case called Chevron. And what this case involved is a petitioner came to the Court of Appeals or the Disreport in this case, and they had a ruling they didn't like from a federal administrative agency. And because they didn't like it, they were saying that basically, you know, Congress did not give the agency the authority to actually rule in the way it did. The agency argued that the court doesn't have the expertise to decide what this silence in the statute means. And we think we have, we actually have the authority to, where Congress is silent or ambiguous to actually fill in the blank, so to speak, or, you know, create or fill out the law, in a sense, and regulate from there. So this got all the way up to the Supreme Court. And the Supreme Court basically said, you know what, we agree with you federal agency, and we're going to make this little test here for the lower courts to follow from now on. Came to be called the Chevron deference. And basically what it says is, if a regulation is challenged because of ambiguity or silence by Congress in the federal court under what we call the Administrative Procedures Act, the court's got to look at three things. It's got to look at first, whether or not the actual agency has the force to actually implement the statute. In other words, in Congress, give them the authorization to enforce this statute. And if they did, we're going to look at the regulation and look at the statute. And in the first step, if the statute is either silent or ambiguous to it, we're going to look at that and say, okay, if it is, and then we're going to go to step two. And basically what step two says is, you know what, as a court, we would normally look at these things and on our own decide whether or not there was ambiguity or what the silence meant or whether you had the authority to rule on all. But because of the Chevron deference that was decided in Chevron, we're going to look to the Administrative Agency and you're going to tell us, you know what, what do you think it says? And the Administrative Agency will tell us what they, in their opinion, what it means. And if we quote, find that reasonable, the court says, we're going to have to say, okay, we agree with you and we'll rule in your favor because of that. So in other words, what the Chevron deference did and what Chevron did in general was it took the power of the court to review these cases on its own with its own eyes and actually deferred to the Administrative Agency's interpretation of a silence or ambiguity in a law that authorized them to regulate in the first place. So in other words, it basically put a thumb on the scale and it gave a lot of power to basically unelected officials to a bureaucracy to the administrative state instead of allowing the courts to actually decide these things on their own. I appreciate that. And so with Loper-bright Enterprises versus Raimondo, which that decision came down not that long ago, in 2024, Chevron deference has basically gone away, is my understanding. Again, I'm not a lawyer or a legal expert, but my, in a nutshell, understanding is that no longer is valid. So there are a lot of federal agencies involved when it comes to different areas of space. Is this a cataclysmic change overnight? Is this something where we're going to be starting to see decisions taking longer as they need to go through the courts? I mean, what is this actually going to look like now that that difference is not in play? We're going to see actually administrative agencies, including those that authorized commercial space activities, having to really point to an actual statute. And let me give you an example. The Federal Communications Commission licenses space activities that involve spectrum, the radio spectrum, which they regulate for satellite TV, satellite radio, and other communications. They basically have authority to regulate and license those types of activities. Now, Congress gave them this authority under the Communications Act of 1934. And one of the things the FCC has done since, I believe it's 2020, they said, because we think we have the power to license these space activities, these involving radio spectrum, we also have the power to regulate what we call orbital space debris. In other words, we can require you to submit a plan to dispose of your satellites when they're done and other things, including, you know, saying you have five years to get your satellite out of orbit after it fails, after it's no longer functional. But the thing is in the Communications Act, there is no specific authority that says anything about orbital debris. Instead, what happened is the FCC pointed to a portion in the Communications Act that basically gives them the power to regulate anything that is in the public interest or that the FCC feels is there to protect the public sector. So this says nothing about it. They've been regulating space debris or orbital debris through their licensing power for the past 20 years. Now, what happens with Chevron overruled by Loper, Brightside, if a petitioner challenges the FCC and the FCC says, you know, we want you to do this or we're going to make this rule. Now, if they challenge that in federal court under the Administrative Procedures Act, the court can look at this with its own eyes and say, you know what, FCC, there is nothing explicitly here. The authority that gives you this ability to regulate orbital debris. Where are you getting this? And because they don't have that power of the Chevron deference anymore, the court could probably say, you know what, you don't have the authority and throw it out. Now, what does this mean? It means that if the FCC wants to regulate, Congress has to step in and basically do its job and put that language explicitly in the Communications Act and give the FCC that authority. Loper, Brightside has two things. One, it gives the court back their power to review it, you know, and be independent in their reviews without having the thumb on the scale by federal administrative agencies. But it also puts the owners on Congress. You've got to start specifically explicitly giving these administrative agencies the authority to do it. This is what it's what we call separation of powers. In other words, the executive branch, the legislative branch and the judiciary, they all have their function to keep each other in check. What Chevron did is that basically put the thumb on the scale and gave the executive branch more power than it was supposed to have and basically left Congress, you know, lazy in a sense because they weren't explicitly telling these agencies, you will give you this authority or saying you don't have this authority. Yeah, it completely makes sense. The FCC was a great example because, I mean, a lot of people do often ask, like, what on earth is the FCC doing about orbital debris and why? Why is that their thing? So I guess the question is, in my mind, in this specific example, if that what you are walking us through were to happen and in Congress does nothing, then because Congress being what it is, I mean, what would happen in that case is it just, I mean, I'm wondering, is it gridlock or what, where does that go? Well, it depends on whether a petitioner like, let's say I am company XYZ and I'm going to launch a communication satellite, I'm going to apply the FCC for a license to use spectrum and basically they're going to be my primary authority to license my space activity because I'm dealing with the radio spectrum. The FCC is going to review my plan and say, you know what, you got to have this orbital debris plan. Oh, by the way, we're making these new rules about orbital debris you've got to comply with. Now, you know what, I may not be upset about, you know, doing an orbital debris mitigation plan because, well, it's a good thing. But on the other hand, this new requirement that they just pulled out of the air, which they actually did that last year, they pulled a five year rule out of their hats. This is going to be onerous for me. It's going to cost me money. I mean, I'm going to have to make some plans for the future about this. I don't think this is a good thing. So first step, but as I have to, you know, file for a motion for reconsideration with the FCC saying, look, you know what, we want you to reconsider this, the FCC are probably saying, no, then I would go to the federal district court or the court of appeals and file a suit under the administrative procedures act. That would basically allege, you know what, the FCC does not have the authority to tell me that I have to abide by this five year rule because there's nothing in the communications act that says it. Now, the court with fresh eyes and being able to act as an independent body and not having the thumb on the scale, they might look at that and say, you know what, FCC, show me where in the communications act you have this authority. And they would point back to that very ambiguous provision where it's absolutely silent on an orbital debris and say, well, we'll use this. And the court says, but I don't see anything about orbital debris that says anything about satellites, orbital debris, what have you, you don't have the authority to do this. And basically the court say, you know what, the five year rule is, you know, basically unconstitutional because the FCC does not have the authority to actually regulate orbital debris. So that could basically bring the whole house of cards on their ability to regulate orbital debris down, right, you know, make out a big mess. So what would happen then, Congress would have to act. Congress say, you know what, this is important. We got to pass an amendment to the Cucasius Act. And this will give Congress the ability to say to the FCC, we're going to give you this authority. But at the same time, we want you to coordinate with other agencies when you make these orbital debris rolls. So there's consistency throughout the federal government because that's been an issue in the past. We'll be right back after this quick break. It's a fascinating case study to be thinking through because I imagine a lot of federal agencies are very busy right now trying to figure out what kind of language they might want if they are advocating for something being put through by Congress. I imagine there's a lot of very busy people right now. What about the FAA? So you were talking about the FCC. FAA is the another agency that's very busy when it comes to space activities. I'm thinking with launch. Does the removal of Chevron deference change things drastically there? It might because basically the FAA is regulated under Title 51 of Chapter 509 of the United States Code. It allows them to grant a launch license and a reentry license. So I got to apply to the FAA, go through the regulations they have, apply to it for a launch license. And you know what, I might actually have a capsule I'm going to put up there that I'm going to want to return to Earth. So I'm going to have to apply for a reentry license. All those are actually authorized by Congress in Title 51, Chapter 509 of the U.S. Code. They have specific authorization for that. However, they don't have this thing called what's called on orbit authority. In other words, they can regulate launch and reentry, but they can't regulate the activities in between launch and reentry. In other words, once my capsule's up there, I can start doing handstands, spinning around in orbit and doing all kinds of crazy stuff. This is hypothetical. The FAA really can't say anything because they don't have authority to regulate in between launch and reentry. They've been asking for on orbit authority for years, but Congress has been reluctant to give it to them. I think it was last year, Congress required a report of the FAA saying, "Look, we're concerned about orbital debris. Tell us whether you have, based on your launch and reentry authorizations, how you can mitigate, say, upper stages." In other words, the second stages that actually put satellites and spacecraft into orbit, these tend to stay in orbit and they cause big problems more than ASAT tests or anything else. Tell us what authority you think you have about requiring these things to be de-orbited in a reasonable amount of time. Well, the way I see it, the FCC took that as a blanket authority to say, "Oh, we're going to create this new rule." It isn't a rule yet, but it's in the process becoming a rule saying we're going to require launch providers to orbit their upper stages within the next amount of time. You have to bring them back in. We're going to use our launch and reentry regulations, but we're also going to use this very innocuous regulation that allows us to regulate activities based on national security concerns and public safety, much like the Communications Act that the FCC uses to basically say, "We can actually compel launch companies to do this." There's that ambiguity again. Now, this regulation has been implemented, but if it does, a launch company can say, "You know what? I don't like this. I don't like the government telling me because I don't think they have this authority. I think this is on orbit authority, which I do think it is. I can file a suit under the Administrative Procedures Act once the regulations are actually implemented." Go to the court and say, "You know what? The Title 51, Chapter 509, is completely silenced on the issue of orbital space debris. It says nothing about it." There's a lot of ambiguity about the statute the FAA is trying to use. I don't think they have the authority to institute this regulation. If it was Chevron, if we were in Chevron days, the court would say, "You know what? We're going to talk to the FAA. I think if their interpretation is reasonable, we'll go with what they say, but we're not in Chevron anymore." The court can basically look at it with its own eyes saying, "What are you guys talking about? You don't have any authority to do this. Congress has not authorized you to do this." It said, "Toss it out." Again, what is the way of solving this? Congress is going to step up and basically say, "You know what? We're going to give you this authority." People say, "Well, Congress is slow. Congress won't do this." There's one other agency, the National Oceanographic and Atmospheric Administration. They regularly space activities. Say I want to launch a satellite. I'm going to put a camera on it and I want to look at the earth. I got to get permission from NOAA in order to do that. If the primary purpose of my space mission is to photograph the earth, take pictures of the earth, NOAA has primary authorization. They're the ones who issue the license for the primary activity. Interestingly, just recently, I think probably one or two years ago, NOAA's what we call remote sensing statutes were updated. Basically, they put in this little clause in Title 51, Chapter 64, I think it is. I'm not sure if that's got one. Basically, there is a specific statute that says NOAA has the authority to require any satellites launched under its authority. They're actually required to be re-entered within a certain amount of time to be determined at the discretion of the agency. Here, Congress has explicitly given an agency to regulate orbital space debris and require an operator under their license to say, "You've got to get that out of orbit within a certain amount of time after it's not working anymore." It does work, but the thing is Congress has got to jump in and put it in. The whole idea behind this is separation of powers in the Constitution. The founding fathers were very explicit when they designed the executive branch, the Congress, and the judiciary that they'd be co-equal branches, and that one branch doesn't have more authority than another. Administrative agencies fall under the executive branch. Congress creates legislation that authorizes what these administrative agencies can do, but they've got to follow explicitly. That's what these cases, along with another one called West Virginia versus EPA, which was decided a couple years ago, those two are basically saying to the agencies, "You can't just pull these regulations out of your hat and look at the ambiguous section of a statute. Congress has to explicitly authorize that authority. You can't just make it up." I greatly appreciate this explanation. A question that comes up a lot when I speak to people who are... A question I am thinking of right now is the issue of regulatory burden is a big one in space. This patchwork quilt of who you have to go to for certain activities is confusing and difficult, especially for smaller orgs. This is hypothetical, but do we think that the regulatory burden will be eased at all through the removal of the Chevron deference, or do you think it's not even applicable in this case? That depends, because there's a bill in Congress right now that wants to revamp, actually shift the authorizing authority to, say, the Department of Commerce. It's basically HR 6131, and that's currently in this Congress. They want to take the current licensing scheme, give them a lot more authority, including dealing with orbital space debris. However, the National Space Council through the White House came up with their own idea of what they want to see, which completely dismantles what we have now and creates a whole new system. It's going to be an absolute nightmare for getting implemented, which it probably won't. I don't think either one will actually see the light of day. That bill is going to die for sure at the end of the year at this rate. I don't think you're going to see the White House's version or what they want to see actually come to fruition. So you have on one side where Congress is trying to make things a lot more streamlined and simpler. I think what the White House and National Space Council want to do is create a whole new monstrosity that's going to make things immensely more difficult and expensive for private operators to actually perform space activities. Okay, so it sounds like totally different lane anyway. Yeah, I remember reading about... It's politics. It's politics. What will make things easier for people while also making sure people are still safe? It's going to be very interesting to see as things sort of the knock-on effect, but also as things sort of start to trickle through with Chevron deference being gone now, when we see lawsuits coming through and how that may or may not change things. And then if Congress will, as you say, do their jobs and actually give agencies authority if they so deem necessary. Yeah, it's going to be very interesting for you here. Well, here's the thing. Loper Brightside is not a magic bullet that's going to automatically change everything overnight. Somebody has to step up and actually file a suit in court because that's the way our system works. They got to challenge it. Now, the question is if I'm trying to get my space mission licensed through, say, the FCC or the FAA, do I really want to upset the Apple car right now and make people unhappy and potentially get some blowback and have to delay my mission? Or do I want us to stand up and say, you know what, this has got to be faced. We have the legal ammunition now. We're going to go in and we're going to challenge it. So it's a matter of a company stepping up and deciding whether it makes business sense for them to actually challenge this or not. I have a feeling a lot of us are placing bets on what company that might be that would do that. I can think of one. Yes, I'm here. I'm just wondering when that she will drop, but I think a lot of us are counting on the days. It may drop pretty soon. I would not be surprised, honestly. Michael, this has been a very illuminating conversation. Thank you so much. I know this would honestly take many hours to properly dive into. So I appreciate you're giving me a very high level overview of a very complex area. I mean, not to minimize this at all. Is there anything else that we want to make sure that people hear? Because, again, we're giving people a very basic primer here. Anything else that people should know about what we've been talking about? Well, there is a good prime. We have this service called the Congressional Research Service and they put out reports on many topics and they actually put out a research report last year on the Chevron deference and the Chevron itself. Actually, if you read my article in the space review, there are links to that actual report. And it gives you a good overview. I mean, it is still pretty high level and pretty dense. But if you're curious about what the Chevron deference is all about, that would be a good thing to read. Also, please read my article. I talk more in detail about what we've discussed here. But what I want people to understand is, yeah, this stuff's complicated. But it's one of those things. People like myself are there to actually do the behind the scenes work so that things are pretty much, you know, so you can watch your cable TV and not have to think about all this stuff. We're the ones who have the headaches for it and deal with it. That's it for T-Minus Deep Space, brought to you by N2K Cyberwire. We'd love to know what you think of this podcast. You can email us at space@n2k.com or submit the survey in the show notes. Your feedback ensures we deliver the information that keeps you a step ahead in this rapidly changing space industry. T-Minus Deep Space is produced by Alice Carouse. Our associate producer is Liz Stokes. We are mixed by Elliot Peltzman and Trey Hester, with original music by Elliot Peltzman. Our executive producer is Jennifer Iben. Our executive editor is Brandon Karp. Simone Petrella is our president. Peter Kilpie is our publisher. And I am your host, Maria Varmasas. Thanks for listening. We'll see you next time. [Music] [Music] [BLANK_AUDIO]
