The Washington PostDemocracy Dies in Darkness

How property rights in outer space may lead to a scramble to exploit the moon’s resources

The way we think about the surface of the moon could be changing, thanks to the new SPACE Act of 2015. (Reuters/NASA/Project Apollo Archive)

This week the U.S. House of Representatives passed legislation known as the SPACE Act of 2015 (The U.S. Commercial Space Launch Competitiveness Act), which recognizes and promotes the rights of U.S. companies to engage in the exploration and extraction of space resources from asteroids and other celestial bodies.

That’s a huge win for private space exploration companies, especially for companies with upcoming plans to tap into the economic potential of the moon. That’s because the legislation, in its definition of “space resources,” is sufficiently broad to include resources found on the lunar surface. In short, the moon could now be in play for some of America’s most innovative space exploration companies.

One of those companies is Moon Express, a privately funded commercial space company with an audacious plan to mine the surface of the moon. As Bob Richards, co-founder and CEO of Moon Express, told me, minerals and water found on the moon would be technically classified as a “space resource” according to Title IV of the SPACE Act, which defines “space resource” simply as “an abiotic resource in situ in outer space.”

“The key to unlocking the economic potential of the moon is the water on the moon,” Richards said. “Water is the ‘oil of the solar system,’ and can be used to create rocket fuel that changes the economics of space resources, not just on the moon, but throughout the solar system. So our initial goal is to locate and learn how to mine and stockpile the water on the moon. We’re effectively after our first gusher.”

And it’s not just Moon Express interested in finding water on the moon. Mining the moon for water has attracted the attention of Shackleton Energy Resources, which suggests that there are billions of tons of water ice on the poles of the moon that might be converted into rocket fuel. Moreover, NASA has two different mission concepts for extracting water from the lunar surface. If there’s ever going to be human lunar colony, then finding water on the moon is going to be a priority. It’s just cheaper and easier to have a source of water on the moon than it is to bring water to the moon.

In introducing the SPACE Act legislation for a vote Monday night, House Majority Leader (R-Calif.) Kevin McCarthy invoked the inspiring examples of both Kitty Hawk and Chuck Yeager breaking the sound barrier and cited the extraordinary innovation already happening around commercial space exploration:

With this law, I have great hope for the future of space exploration. You know, whenever I visit the Mojave Air and Spaceport, where so many of our advancements are happening, I’m overwhelmed by the feeling that the future is now… Upon the firm foundation of the SPACE Act, I know they and others will lead us far and that our limits are only bounded by what we can imagine as we continue our journey to the stars.

When it comes to outer space, however, there’s the matter of a pesky little document known as the Outer Space Treaty of 1967, to which the United States is a signatory. The Outer Space Treaty indirectly suggests that commercial space companies don’t own the rights to any resources they find in outer space. The treaty states that no “celestial body” is subject to “national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

The SPACE Act of 2015 carefully skirts this issue by specifically making a disclaimer that the United States “does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.” Clever, right? If there’s no U.S. sovereign claim, then the Outer Space Treaty can’t be applicable to private U.S. companies that assert a similar type of claim.

When asked about a hypothetical example in which a Chinese company or even the Chinese government might contest the rights of a U.S. company to space resources, Richards suggests that the SPACE Act would provide a sufficient legal basis. “It’s hard to imagine what challenge China or any other country could mount against this U.S. legislation, which is about rights to materials obtained, not territory, and is really just codifying principles and rights already in the 1967 Outer Space Treaty that have been demonstrated by multinational activities on the moon as applicable to the private sector.”

Nearly 50 years ago, of course, we didn’t know anything about the economic potential of space and nobody was seriously talking about humans as an interplanetary species. Certainly, there were not any private companies angling for a piece of the action. Space exploration was solely the preserve of sovereign governments and we referred to astronauts as the “envoys of mankind.” The prevailing sentiment, as expressed in the Outer Space Treaty, was that outer space should belong to all of humanity, not just the first nation to venture into space and plant a flag on the surface of a celestial body.

What’s happening now, in essence, is a sea change in how we think about outer space. To convince private commercial space exploration companies to invest millions of dollars, there have to be economic incentives involved. In short, financial backers of these companies have to be able to realize a profit from their investments if innovation is going to happen. That’s the reality.

Richards cites the rights of fishing boats in international waters as an economic template for the SPACE Act, “The ships are owned by companies flying flags of nations under which laws they are bound: they have a right to peacefully fish in international waters that they don’t own; but they have a right of ownership of the fish once obtained.”

The fishing analogy is a useful one. It suggests that we’re simply extending the same economic principles used on Earth to the moon and beyond, not creating new principles. Seafaring nations are now spacefaring nations. Moon Express even refers to the moon as “the eighth continent,” suggesting that people should think about the moon the same way they think about the other seven continents on the planet. And Planetary Resources, an asteroid mining company, refers to the “off-planet economy.”

Throughout the annals of exploration, there have always been commercial incentives. Would the untapped economic potential of America have been possible without similar types of incentives? One example cited by backers of the SPACE Act is the Homestead Act of 1862, which paved the way for Americans to search for gold and timber. Governments they say, have an important role to play here by passing legislation that catalyzes, rather than stifles, growth and innovation.

For supporters of the SPACE Act, the year 2017 looms large. That’s exactly 50 years since the passage of the 1967 Outer Space Treaty. And it’s also the deadline for winning the $30 million Google Lunar X-PRIZE. If privately owned companies are going to be landing on the surface of the moon within the next 24 months, they are going to want assurances that their innovative efforts now are going to have an economic payoff later.