Keep Out: Why the FCC Should Exclude Space Operations and Satellite Licensing from NEPA Environmental Reviews

The FCC is striving mightily to do all it can to clean up regulations that could drag down the acceleration of America’s space economy.  The Lexington Institute is writing in support of the Commission’s effort to take a fresh look at modernizing its National Environmental Policy Act (NEPA) rules. Specifically, the Lexington Institute is in favor of the FCC excluding its space operations and space communications licensing responsibilities from environmental reviews. (WT Docket No. 25-217).

NEPA has a storied history.  Signed into law on January 1, 1970, by President Richard M. Nixon, the law was part of the federal government’s first major push for environmental policy.  Sensational events like the January 28, 1969 Santa Barbara oil spill drove its enactment.  Nixon walked the beach after an offshore rig operating under a federal waiver blew and coated beaches and wildlife with oil in what was at the time the nation’s largest oil spill.   Shorebirds and seals covered in oil were being treated at the Santa Barbara Zoo.  In 1978, President Jimmy Carter created the Council on Environmental Quality via Executive Order, and that body issued rules which became the core of the NEPA review process for most agencies. 

Fast forward to January 2025, when the Trump Administration rescinded that order, and a February 2025 court decision ruled that the plain text of the NEPA statute “does not give CEQ authority to issue binding regulations.” For the FCC, this is a welcome and sensible opportunity. NEPA was first inspired by the plight of seals and shorebirds.  It is not relevant for the FCC’s role in satellite communications licensing, Earth stations and space operations. 

Currently, the White House Executive Order of January 2025 has opened an important opportunity for the FCC to update and modernize its approach.  The NEPA statute creates varied and complex considerations.  However, the FCC has rightly treated its space licensing activities as an area where NEPA does not apply.

The FCC has been both farsighted and consistent in separating out space.  First, the worthy original intent of Congress in enacting NEPA was:  “That we will not intentionally initiate actions which will do irreparable damage to the air, land, and water which support life on Earth,” Senator Henry “Scoop” Jackson said on the Senate floor in 1969.   By its very definition, space does not share the domain of the Earth’s surface and atmosphere.  The FCC’s responsibilities for space spectrum and commercial satellite licensing actions are far removed from the true concerns that motivated NEPA.

Second, the FCC has been consistent in carrying out its responsibilities without conducting environmental assessments.  This practice should continue.  For example, the FCC has licensed specific NGSO satellites without an environmental assessment, and this action has been upheld by the D.C. Circuit Court.  The FCC has established that Earth station licensing does not constitute a major federal action that would trigger NEPA review.  The FCC has made reasoned policy choices to exclude space operations from NEPA review, and courts have reinforced the logic.

Third, numerous other government bodies may continue to cross-check space activities where there are environmental concerns that do pertain to air, land and water.  For example, the Department of the Air Force continues to produce environmental impact statements for events such as launches by SpaceX’s Starship Super-Heavy at Canaveral Space Force Station. 

The FCC has stepped up to the plate with reasoned arguments as to why space should be excluded from environmental reviews.  The FCC should take its vote on September 30 with a clear conscience, not least because the FCC is also carrying out major responsibilities in accelerating American space operations.  Remember, the FCC’s Space Innovation Agenda is essential for America’s economy and for national security in the face of competition from China, Russia and others.  Modernizing rules to exclude environmental review for space operations is a logical move that protects the acceleration of space operations – without harming the original aspirations of protecting Earth, our island home.