Volume 35

Don’t Mind the Gap: Practical and Ethical Consequences of Domestic Planetary Protection Regulations

by Kane Yutaka Tenorio

Planetary protection impacts every human being on the planet. Yet, this practice is often left out of conversations regarding the development of commercial space regulations. While government-affiliated missions operate under updated planetary protection policies, domestic regulations governing corporations and non-governmental organizations have struggled to keep up with the growing private sector. The current “regulatory gap” guarantees that the United States is unable to fulfill its international obligations under the Outer Space Treaty (OST) and highlights limitations in the Federal Aviation Administration (FAA) licensing framework. While different initiatives may signal an eventual end to the problem, no long-term solutions to “fill” the current regulatory gap are being meaningfully undertaken.

Closing the regulatory gap also aids practitioners in ethically counseling clients about disclosure of planetary protection concerns. From navigating the FAA’s licensing process to exigency scenarios, clients in the commercial space industry would beneft from regulations prohibiting harmful contamination of the Earth and other celestial bodies. This Note aims to give practitioners guidance in the meantime by conveying a simple message: “don’t mind the gap” — abide by the Model Rules of Professional Conduct (Model Rules) despite regulatory limitations. This guidance encourages attorneys to exercise their conscience and discretion should they become aware of planetary protection concerns.

Part I of this Note gives background on planetary protection and the domestic commercial space industry. Part II explains the current regulatory framework governing the industry and the domestic regulatory gap. Part III surveys proposed solutions to the regulatory gap. Part IV imparts advice to practitioners, exploring two scenarios where they may confront planetary protection concerns and examining possible grounds for discipline under the Model Rules.


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