On 10 February 2021, the UK Government opened the third in a series of recent consultations on the regulations required to implement the Space Industry Act 2018. Given the emphasis in the UK on Net Zero 2050, and the awareness of the levels of greenhouse gas emissions attributable to existing aerospace activities, it is not surprising that this most recent consultation focuses on environmental objectives. It invites opinions from stakeholders on the key environmental objectives that the UK Government proposes to set for the regulator. The Civil Aviation Authority has been appointed to be responsible for spaceflight activities from the UK. We consider the key messages from this consultation and what the UK Government’s proposed environmental objectives and approach to regulating spaceflight mean for industry.
The UK has a successful space industry, and the UK Government views space as a strategic priority, with the ambition of capturing 10% of the global space market by 2030. The UK’s commercial spaceflight programme is an important element of this ambition. It will involve developing the capability to carry out the launch of satellites (via both horizontal and vertical launches) from UK spaceports, as well as other activities such as the possibility of space tourism flights. There are already several spaceports actively under development across the UK and growing interest in the opportunities UK-based launch activities could present to both UK and international companies.
In its first consultation in July 2020 (see here for our commentary), the UK Government set out its proposals for regulating spaceflight activities by introducing draft regulations which covered the rules for licensing and provided guidance for different types of licensees, including launch and satellite operators and the operators of spaceports. In its second consultation in October 2020, the UK Government sought views on the draft insurance and liability requirements under the 2018 Act – a topic of particular importance for industry, which we considered in our article on the consultation. The Government has since announced that the draft liabilities regulations will be merged with the wider space industry regulations, but a detailed response to both consultations has yet to be published.
In this third consultation, the UK Government introduces the draft guidance on the environmental objectives that the regulator, the CAA, will be required to take into account when licensing spaceflight activities under the 2018 Act. The Government makes clear from the outset that access to space and space technology can be beneficial to the environment (e.g. Earth observation and climate change monitoring), but it also, recognises that “[s]paceflight has the potential to affect climate change, local air quality and noise levels which can impact human health, biodiversity and the wider environment.” This consultation outlines how the Government proposes a balance may be struck in order to minimise the adverse environmental impacts of developing UK commercial spaceflight capability (spaceports and launch activities) and maximise the contribution of spaceflight activities to the economy and the environment.
That the Government is keen to ensure a high level of environmental standards for commercial spaceflight activities is not surprising: both the operation of spaceports and launching of satellites from the UK are new activities in the UK, and present new risks. What’s more, operators who have already applied for space licences from the UK Space Agency under the Outer Space Act 1986 will be aware that an environmental assessment of the impact of the proposed space activity (e.g. compliance with space debris mitigation guidelines for a satellite mission) is an important element of the overall licensing process. Companies who apply for future licences from the CAA under the 2018 Act should be aware, as this consultation makes clear, that that the environmental risks of the space mission will be important factors in the licensing process.
Respondents to this consultation should also be mindful of the UK Government’s wider environmental strategies and policies, such as the 25 Year Environment Plan, the Clean Growth Strategy and specific policies such as the UK Marine Policy Statement. Section 2 of the consultation’s draft guidance outlines in more detail the Government’s environmental and sustainable development policies. Besides the environmental provisions of the 2018 Act, future licence applicants should also be aware of the (non-space-specific) guidance that the CAA already takes into account for air navigation – this guidance may be especially relevant for future launch activities given the potential impact of launch activities on the efficient use of airspace.
Both the CAA as the regulator, and applicants under the 2018 Act, are required to take into account the environment. Under section 2(2)(e)) of the 2018 Act, the CAA is required to carry out its regulatory functions by taking into account the environmental objectives set by the Secretary of State for Business, Energy and Industrial Strategy – these are the objectives under the present consultation that we consider below. For a licence applicant, section 11(2) of the 2018 Act requires an applicant to submit an assessment of environmental effects (AEE) – and the CAA will not be able to grant a licence unless an applicant has submitted an AEE.
The purpose of these sections of the 2018 Act and the environmental objectives under consideration in this consultation is to ensure that:
Respondents are invited to share their views on the following points:
Environmental objectives for spaceflight activities
The draft environmental objectives, set out in section 3 of the consultation’s draft guidance, are as follows:
Minimising emissions contributing to climate change
As we describe above, the UK has legal obligations relating to climate change, in particular the reduction of greenhouse gas emissions under international law (the Paris Agreement) and national law (the Climate Change Act 2008), as well as the objectives the UK has set itself under various national environmental policies and strategies. While the Government acknowledges that, today, global ozone loss as a result of spaceflight activities amounts to less than 0.1% of the ozone layer, the risk of ozone loss may grow with increased spaceflight activity. This is why the Government has set the minimisation of emissions as one of the four environmental objectives.
Under this objective, the CAA must ensure that spaceflight emissions respect the UK’s legally binding carbon budget limits (net zero emissions by 2050 for England and Wales, by 2045 for Scotland and to reduce emissions to 35% of 1990 levels by 2030 for Northern Ireland). The CAA should take into account the mitigations proposed by an applicant to limit the effects of their emissions; and encourage the spaceflight sector, where possible, to adopt cleaner fuels and technologies. The CAA is also asked to draw upon its wider capabilities to oversee an efficient use of airspace and ensure that the contributions of ancillary services to spaceflight activities have been considered by the applicant within their AEE.
Protecting air quality has been set as an objective due to its vital importance for human health and the environment. The Government recognises that, at the local level, spaceflight activities may impact air quality through pollutant emissions, either directly or as secondary pollutants formed through atmospheric chemical reactions.
This objective requires that the CAA should ensure that the spaceflight activity, submitted in an applicant’s AEE, complies with statutory air quality limits and national objectives for pollutants. The CAA should also consider whether the pollutant emissions from the spaceflight activity will comply with environmental standards for important habitats (these standards may differ between the different countries in the UK – this will be of particular interest to current spaceport developers who are operating in different parts of the UK) Finally, as per the emissions guidelines, the regulator should ensure that applicants consider ancillary services and ground operations when providing their AEE and any air quality assessments provided under their AEE.
Launch and spaceflight activities, whether by traditional, vertical launch or horizontal launch, will inevitably cause significant noise and, as the Government notes, “is anticipated to be one of the biggest environmental concerns for both the impacts on human and wildlife receptors”. However, by setting this objective, the CAA is asked to help manage this to limit the impact on human and animal life.
Eight guidance points have been set out in the consultation, which ensure the regulator will conduct in-depth assessments of the noise impacts of proposed activities. These points include taking into account the impact of long-term exposure to repeated noise events by surrounding life forms, risks to sleep disturbance, such as the impact of sonic boom and stage return operations noises for example. The key objective is clearly stated in the final guidance point: “[to] ensure that all reasonable steps have been taken by operators to mitigate and minimise the adverse effects of noise events on human health and sensitive wildlife.”
The decision to set as an objective the protection of the marine environment from the impacts of spaceflight activities reflects (i) the reality that some of the spaceports under development are in coastal areas, and future spaceports and launch activities may take place from the coast; and (ii) the UK has recognised the importance of marine protection in the various international treaties it is a party to and its own national marine strategies.
To meet this objective, the Government proposes a detailed approach for the CAA to take into account when assessing the risks to the marine environment. The approach is based on the UK Marine Policy Statement, a combined policy statement from across the UK which sets high level marine environmental objectives, and, supports the formulation of “marine plans”. A marine plan is a planning framework which sets out how specific, designated marine areas are to be used and help inform users (e.g. spaceport operators) and regulators on how specific marine areas can or should be used. If a spaceflight activity is intended to be conducted in an area where there is a marine plan in place, the CAA should ensure that any marine assessment under the AEE takes into account the relevant marine plan (there are currently 11 identified marine plans in England, national marine plans for Scotland and Wales and Northern Ireland are in the process of drafting their marine plan). Where an activity is to be conducted where there is no identified marine plan in place, the CAA will be required to take into account the directions set out in the Marine Policy Statement (which contain rules on granting licences).
As demonstrated by the three consultations to date, the UK Government recognises that, to achieve the ambition of “unlocking” commercial spaceflight, it is critical to have a clear and robust regulatory framework in place. This most recent consultation, on the environmental objectives to be taken into account by the CAA in the licensing of spaceflight activities, provides a useful opportunity for industry stakeholders to share their views on how practicable and achievable the Government’s proposed environmental approach is, and whether it will contribute to the UK Government’s space ambitions while ensuring that spaceflight activities are carried out in an environmentally responsible way.
The deadline to respond to this consultation is 24 March 2021. Details on how to respond are available here. For any queries on the Space Industry Act 2018 or for assistance in responding to this consultation, please contact the authors of this article or Bird & Bird’s Satellite & Space Activities group.