A battle for the sky is raging, and the heavens are losing. Upcoming mega constellations of satellites, designed to blanket Earth orbit in spacecraft beaming high-speed Internet around the world, risk filling the firmament with tens of thousands of moving points of light, forever changing our view of the cosmos. Astronomers who rely on unsullied skies for their profession and members of the general public who enjoy the natural beauty of what lies above stand to lose out. The arrival of such a large number of satellites “has the potential to change our relationship, and our connection, with the universe,” says Ruskin Hartley, executive director of the nonprofit International Dark-Sky Association. But with no binding international laws or regulations in place to protect the night sky, anyone opposing the advancement of mega constellations is surely fighting a losing battle. Right?

Wrong.

A new paper to be published later this year in the Vanderbilt Journal of Entertainment and Technology Law argues that the Federal Communications Commission—the agency responsible for licensing the operation of these constellations in the U.S.—should have considered the impact these satellites would have on the night sky. In ignoring a key piece of federal environmental legislation, the FCC could be sued in a court of law—and lose—potentially halting further launches of mega constellations until a proper review is carried out.

“Astronomers are having these issues [and think] there’s nothing they can do legally,” says the paper’s author Ramon Ryan, a second-year law student at Vanderbilt University. “[But] there is this law, the National Environmental Policy Act [NEPA, pronounced ‘Nee-pah’], which requires federal agencies to take a hard look at their actions. The FCC’s lack of review of these commercial satellite projects violates [NEPA], so in the most basic sense, it would be unlawful.”

Enacted in 1970, NEPA obligates all federal agencies to consider the environmental impacts of any projects they approve. Such impacts cover a variety of issues, from the effects of casino barges on rivers to any project’s contributions to climate change—the latter has been a recent target of the Trump administration’s regulatory rollbacks. The reviews can take multiple years, producing anywhere from hundreds to thousands of pages of paperwork. Federal agencies can circumvent NEPA, however, if they are granted a “categorical exclusion” for some or all of their activities—usually by arguing that such activities do not impact the environment and thus do not require review. The FCC has had a sweeping categorical exclusion since 1986 across almost all of its activities—including its approval of space projects—despite other agencies involved in space—most notably NASA—being required to conduct NEPA reviews.

“There are other agencies that use categorical exclusions, but I don’t think there is one that’s as broad as this,” says Kevin Bell, staff counsel at Public Employees for Environmental Responsibility (PEER), a nonprofit organization that works with government whistle-blowers on environmental issues. “It is a policy that was designed for another time, before large scale space exploration.”

In light of the concerns about the impacts of satellites on the night sky, Ryan says, this categorical exclusion would be unlikely to stand up in a court of law. SpaceX alone has been licensed by the FCC to launch 12,000 satellites in its Starlink constellation in the coming years, dwarfing the current number of approximately 1,500 active satellites in orbit—and the company has plans for 30,000 more. It has already launched about 180 Starlink satellites, with another 1,500 scheduled for 2020. Following the first launch of 60 satellites in May 2019, many observers were surprised by their brightness at dawn and dusk—popular times for both astronomy and simple stargazing. “That’s the time that most people enjoy the sky,” Hartley says. “These new satellites are brighter than 99 percent of [those] in orbit at the moment. And really, that’s the root of this concern.”

In its reasoning for its categorical exclusion, the FCC states that its actions “have no significant effect on the quality of the human environment and are categorically excluded from environmental processing.” Ryan says that the FCC may have been wrong in this assessment, however. “The FCC has never performed a study showing why commercial satellites deserved to be classified as categorically excluded from review,” he says. “And the evidence shows that these satellites are having an environmental impact. If the FCC were sued over its noncompliance with NEPA, it would likely lose.”

………

A key question is whether the night sky could be argued to fall under NEPA in a federal court. According to Section 1508 of the policy, there are both direct and indirect effects that can warrant NEPA review, with the latter including “aesthetic, historic, [and] cultural” ones. Ryan says that these factors could, in a court of law, be argued to apply to the night sky. “I definitely think that the night sky would fall under [that],” he says.

Considering Elon Musk’s record of “regulatory arbatrage”, and general lack of concern for the consequences of his actions, the creation of PayPal was an exercise in evading banking regulations, the FCC should have gone over his application with a fine toothed comb.