“Should the natural beauty of our night sky be protected under law, or should it be free and open for anyone to use as they see fit? That is a question many have grappled with for the past two years, since the arrival of so-called mega constellations. These vast groups of satellites number in the thousands, exemplified by California-based SpaceX’s Starlink network, which is designed to provide global Internet coverage from space—at the potential cost of despoiling the heavens as its orbiting components reflect sunlight to the ground. By some estimates, in the coming years, thousands of these satellites could be visible in the night sky at any given hour. Now a U.S. court may be on the cusp of ruling on the issue for the first time. One way or the other, that decision could have ramifications across the satellite industry, astronomy and our very culture itself. And depending on the outcome, it might well be contested in the Supreme Court.
Last year Scientific American was the first outlet to report on a paper in the Vanderbilt Journal of Entertainment and Technology Law that argued that the Federal Communications Commission’s (FCC’s) approval of mega constellations such as Starlink may have been in breach of U.S. environmental law—specifically, the National Environmental Policy Act (NEPA). Since 1986, the FCC has had a “categorical exclusion” that means almost none of its activities require an environmental review under NEPA. The paper argued this exclusion should no longer be valid, considering the FCC’s current activities, particularly its licensing of satellites in space. “It’s clear from a legal standpoint that the FCC is not following NEPA,” says Ramon Ryan, a recent law graduate of Vanderbilt University and the paper’s author.
The outcome of the case could provide U.S. courts’ first written record on whether the natural aesthetic of our night sky is protected under environmental law. “It’s really exciting to watch and see if the court agrees with my analysis,” Ryan says. The process is not expected to be especially quick: it could be up to a year or more before a decision is reached. Yet whatever the outcome, the losing party—be it Viasat or the FCC—would have the option of escalating the case for review. “There’s a nontrivial chance this could go to the Supreme Court,” says Kevin Bell of the nonprofit organization Public Employees for Environmental Responsibility. Given that the U.S.’s highest court is conservative-leaning, thanks to Donald Trump’s appointees, and thus generally supportive of restricting NEPA, that scenario could favor the FCC, Bell says. The FCC declined a request to comment on the ongoing litigation.”