Annie Kuo: Hello everyone and welcome to another episode of the Discovery podcast where we interview the law school’s distinguished guests, faculty and experts from around the world. I'm your host Annie Kuo. As a NASA-adjacent baby who grew up in Houston, I'm very excited to introduce today's guest Austin Murnane for a very special conversation about legal considerations for commercial exploration in space. Yes, we're going to talk about mining asteroids and water ice from the moon.
Austin Murnane is Senior Legal Counsel at Blue Origin, a Jeff Bezos company now going on 24 years and a formidable rocket launch and human spaceflight business, based in Kent. He recently spoke here at UW Law for our inaugural Space Law Diplomacy Symposium. Austin is a former U.S. Marine with three degrees including a J.D. from Fordham University. He's got a master's degree in space resources and is working on his Ph.D. on the same subject.
Welcome, Austin, to the podcast.
Austin Murnane: Thanks again, Annie, for having me. It’s a pleasure to be here.
AK: Let's talk about the legal issues arising from the use of resources acquired in outer space, which includes the Earth's moon, and other celestial bodies. First, can you tell us about the parties involved in space resource utilization, or ISRU?
AM: Be happy to. ISRU is an important topic to NASA and other civil space agencies around the world, as well as a number of companies and academic organizations and other organizations who are interested in the potential that ISRU could contribute to advancing the cause of space exploration.
AK: Can you tell us about the opportunities to be found through asteroid mining and lunar exploration and why ISRU matters?
AM: I think a good analogy to start with to sort of frame this in a context that people might understand is, if you imagine if you wanted to do a cross-country road trip, and you wanted to make it a round trip, say from Seattle to New York and back, suppose your car gets about 30 miles to the gallon. It's a 6,000-mile trip, so you're going to burn about 200 gallons of gas — unless you can't refuel along the way. If that's the case, you need to leave, and if you can't refuel at your destination, either it's only when you get back. So, if you had to leave with all of your fuel for the journey from Seattle, you'd be taking not just 200 gallons of gas with you when you load up your car at the beginning because those 200 gallons of gas are their own weight. They weigh about 1,200 pounds. And if you add 1,200 pounds to your car, you're not getting 30 miles to the gallon anymore, which means you need to add more gas to make the journey, but that added gas reduces your mileage even further. And this becomes a vicious cycle. You’d end up having to leave Seattle with, like a, carting a truck behind your car with hundreds and hundreds, if not thousands of gallons of gas.
In space, this is exactly what's going on. But the math is so much worse. Because everything we do in space is so much more difficult than driving a car across the country. If we just want to get to orbit around the Earth, we need to get our spacecraft going 17,500 miles an hour, that's just to stay in orbit around the Earth. But if we want to leave the earth and go to the moon, we need to accelerate it by another 7,000 miles an hour. So, then we're off to the moon at some enormous speed. And if we want to orbit around the moon or land on the moon, we need to slow ourselves down, eventually down to zero. And then if we want to come back from the moon, because we want to survive, we need to accelerate first to 3,600 miles an hour again, just to orbit the moon, and then another 2,000 miles an hour to get back to Earth.
Now, think about all of the fuel that that would require. And imagine back to our analogy of driving cross country, you've got to carry all of that fuel with you from the very start of the journey. This is why back during the Apollo era, just to send a little spacecraft with three astronauts to and from the moon, they launched from Florida atop a rocket that weighed 6 million pounds. And the vast majority of that rocket’s weight was in fuel or fuel and liquid oxidizer, but I'll spare you the chemistry.
If we get to the moon, and we want to establish, say, a habitation module where scientists are performing research, rather than bring all of the water they're going to need with them. What if they could use some of the water that appears to be located in the form of frozen ice in those craters on the South Pole in North Pole of the moon? What if they could use that for their drinking water and for washing and everything else you need?
Not only that, they can separate water through a 100-year-old process called electrolysis into hydrogen and oxygen. The oxygen, of course, they can breathe. But then the hydrogen and oxygen are the fuel and the oxidizer for a number of spacecraft, including spacecraft that are built by Blue Origin. And so rather than having to carry fuel for an entire journey from the earth to the moon and back, what if a spacecraft could land at the moon and then refuel on the moon for its trip back or wherever else it wants to go throughout the solar system?
AK: Yeah, it would be way more efficient. And then I saw a list of the different kinds of metals and precious metals that can be mined from asteroids, which apparently is the trillion-dollar potential business that people can get into. Bloomberg in 2019 had published a suggestive piece saying you want to be a trillionaire? Try space mining. But I'm really interested in this client note from Goldman Sachs in 2017 that says, while the psychological barriers to mining asteroids is high, the actual financial and technological barriers are far lower. So, I'm curious about this, how accessible and real is it to get into this business?
AM: A lot of that remains to be seen. However, there appears to be a lot of potential for a few reasons. One of them, and if we think about asteroids in particular, is that because asteroids are generally so much smaller than Earth's moon — although there are some very large asteroids out there, but most asteroids are so much smaller than Earth's moon — that the amount of fuel you would need to get to one of them and back could end up being lower than the cost and fuel of getting from the Earth to the moon and back, because even though the asteroids are generally much farther away than the moon, once you get there, you're not going to be trapped in their gravity, the way you would be on the moon.
As I mentioned before, you need to be going 3,600 miles an hour just to get to orbit around the moon. And then you need another 2,000 miles an hour just to escape and get back to Earth. You don't need to do anything like that in vicinity of an asteroid. And so, the idea would be that mining asteroids might in some cases be more technically feasible than mining on the moon. Of course, this is all still pretty theoretical, but there are companies and civil space agencies who are interested in it. In fact, prior to the Artemis program, mission to an asteroid was the United States’ government plan for long term human exploration of outer space.
AK: Can you tell us a little bit more about Artemis because this presents such opportunity — the U.S. wants to have a dominant share in the market — can you tell us about the Artemis program and its goals?
AM: I think it's fair to say that the schedule is in flux. The latest, I believe from NASA is that they're hoping for a 2025 landing of the Artemis 3 mission to the moon. However, as technology continues to develop, they call it rocket science for a reason, even though it's not exactly a technical term, but it is pretty difficult work. And so, they would like to have people returning to the moon, certainly in this decade, and then eventually establishing a research outpost probably on the south pole of the moon.
I can say that the Artemis Accords in general are a multilateral agreement among 33 nations, the number keeps going up. In fact, the latest, Angola just joined a few weeks ago. So, it's a large coalition of nations from around the world. It represents about 40% of the world's population, about 3.2 billion people live in the countries that are part of the Artemis Accords. And they are a series of principles, mostly high level principles, but more detailed than some of the existing space treaties that discuss how the Artemis Accord nations intend to act on the moon, what kinds of things they're going to do to ensure transparency, interoperability, their ability to provide assistance to each other in an emergency, avoid interference with each other's activities, and make use of the resources on the moon. All of these are set out at a high level in the Artemis accords. And it's not just NASA but the State Department and the entire United States government.
AK: So, how much of all of this is legal as defined by the Outer Space Treaty? Can you actually, or can a party actually say this part of the moon is mine or I got here first?
AM: I'd say I wouldn't have earned my law degree if I didn't say it depends, right? To some extent, it depends on who you're asking or which country you're in where you're asking that question. There are, as I said, 33 nations that have signed Artemis Accords and under the Artemis Accords, the signatories affirm that the extraction of space resources does not inherently constitute national appropriation under Article Two of the Outer Space Treaty. So, what does all that mean?
The Artemis Accords are referencing Article Two of the Outer Space Treaty, which prohibits any of the nations that signed and ratified the treaty, which is most nations on Earth, including all of the spacefaring nations, they have all agreed that they will not appropriate the moon, or other celestial objects. So, there will be no national appropriation of the moon or other celestial objects by claim of sovereignty or other means, which means that the United States and other countries, they don't have the right to claim territory on the moon.
In fact, during the Apollo era, when the astronauts were planting flags on the moon, Congress actually passed a resolution and later a law that explicitly said, yes, we're planting flags on the moon as a symbol of our national pride in this achievement, but we are not claiming any sovereignty on the moon. Likewise, there are four nations that have passed laws that explicitly say that their citizens and nationals can use lunar resources or space resources. For instance, there was a 2015 law in the United States, signed by President Obama passed on a bipartisan basis in Congress, in which Congress and the U.S. government affirmed a U.S. citizen’s right to possess, own, transport, use and sell lunar resources. So, the rights are pretty well developed in the United States and several other countries. And there are other countries that are not part of the Artemis Accords. But they have signed up to something called the International Lunar Research Station Initiative, which is led by the China National Space Administration and Roscosmos, which is the Russian state space Corporation. And those nations have indicated that they intend to use lunar resources as well for the development of their space exploration plans.
So, the trend seems to be moving in the direction of saying that the possession and use of resources in space is lawful activity. In fact, the International Institute of Space Law, which is the most preeminent Space Law organization in the world, published a working paper back in 2016, in which they found that the acquisition and use of resources in space does not, per se, violate the Outer Space Treaty, as long as countries and nationals aren't claiming territory and saying, this territory is mine, they can go and pick up moon rocks and whatever they collect, they can own as long as they're not violating other provisions of the treaty.
In fact, former NASA Administrator James Bridenstine analogized it to fishing in international waters, that the idea is you can't make a claim to own international waters. But if you sail out there, and you lower your nets, and you pick up a bunch of fish, you own those fish, as long as you haven't done so in a way that violates some other treaty.
AK:: There is this hypothetical case in one of your past presentations, a dispute between a commercial enterprise and competitor, what happens if they try to acquire the same resources?
AM: The good news is, at this time, it seems like that would be unlikely because if we say, start with the moon as an example, the moon is enormous, the surface area of the Moon is about the size of the entire continent of Asia, bigger than Africa, much bigger than North America. Even if the mission were only interested in water ice the target areas for that, based on what we've seen from satellites appear to be an area about the size of the state of Colorado, around the south pole of the moon, and a somewhat smaller area to the north. And considering the fact that it will cost billions of dollars to send a prospecting mission to the moon, the idea that two of these missions would try to land right on top of each other and potentially damage each other spacecraft is probably pretty low.
But suppose they thought about doing it. There are a couple of things already in place, one of which is under the Outer Space Treaty, nations are responsible for authorizing and continuing to supervise all of their nationals’ activity in space, not just their NASA or civil space programs, or military programs. Nations are also responsible for what their non-government entities, what private companies and private individuals do in space, which means that if some spacecraft from one nation lands right next to another one and kicks up a bunch of rocks that damages the other spacecraft, or lands on top of it or anything else, their country's government is responsible for, one, supervising them to ensure that that doesn't happen and, two, making a payment to the other spacecraft’s government in order to compensate them for damages.
So, we can imagine that with this heavy level of supervision and the fact that there are multiple regulatory agencies that have to approve everything that happens on the moon and other planets, there's a lot of prevention on the front end, and there's a liability regime for compensation on the back end.
AK: Could you tell us a little bit more about the last pieces that you mentioned?
AM: Certainly. So, the liability convention provides for a commission to be established to adjudicate any disputes between nations. And if it turns out that there is a dispute between, say, two companies regarding what they're doing on the moon, or any kind of business dispute over resources on the moon, we can imagine that that could be settled either in the federal courts in the United States, or perhaps more likely, in arbitration in the aerospace industry, that there is a fairly well established use of arbitral panels in order to resolve disputes in a more expeditious way. And given the fact that this is going on in an area where there are no territorial claims, perhaps arbitration will be the go-to menu.
Of course, none of this is happening outside the jurisdiction of the United States government. So, if the United States government wants to involve itself, it always can. As soon as you enter a spacecraft, you fall within the special maritime and territorial jurisdiction of the United States government. So, it's not like you've entered some lawless realm when you go up there. However, just given the nature of business and the nature of disputes, it's entirely foreseeable that they could resort to arbitration, instead of going to court.
AK: Yeah, thanks for addressing that. I wondered about the use of ADR and, you know, space disputes. Could you tell us about the principles of ISRU dispute resolution. I saw that there are about four, and I'll name them. One of them is national supervision, which is under our Outer Space Treaty, Articles 6 and 8. Two, prohibition against harmful interference. Also, according to another article in Outer Space Treaty. Three, hazards of space flight operations. And four, the abundance of resources in space. I know that's quite a bit of a territory. But if you could give us kind of like a high-level overview about these principles and how they might be applied, that'd be great.
AM: Nations under the Outer Space Treaty, and the Liability Convention and the Registration Convention, they've all accepted a lot of responsibility for what everyone is doing in space. So, this will not be like other times in history when people just rode out into the frontier of something and could do whatever they want, and no one was watching them. In order to just go to space, you need a launch license from the Federal Aviation Administration. You need a radio spectrum license from the FCC. And if you've got any kind of camera on your spacecraft, you need another license or permit from the Department of Commerce.
Not only that, but all of those agencies consult with an alphabet soup of other agencies across the United States government. They consult with Department of State, Department of Defense, the EPA, the U.S. Fish and Wildlife Service, the U.S. Geological Survey, because there are all of these reasons under statute why they could deny you your launch license or deny you your license to use radio spectrum or deny your license to the use the orbital spectrum.
So, there are a huge amount of ways in which the U.S. government could say we need to prevent any kind of dispute situation from arising and we're going to do it by refusing to issue a license or a permit. And that's part of their obligation under the Outer Space Treaty is that they need to prevent people from harming each other, or for interfering with each other's operations.
Not only are there the legal prohibitions or the legal safeguards against disputes, but also the spaceflight environment is so dangerous, that it really discourages anyone from engaging in anything risky, not just to their own spacecraft, but to anyone else's spacecraft because due to the lower gravity and vicinity of the moon, due to the fact that there is no atmosphere, if you damage someone else's spacecraft, there's a good chance that flying pieces are going to come off and damage your own. Even just landing a spacecraft on the moon will kick up the rocks so far, and in so many other directions, that it could be a hazard to satellites in orbit.
So, all of these things mitigate against trying to land on top of each other or run into each other's spacecraft or do anything else that's dangerous. But not only that, there doesn't seem to be a very good reason to because there’s not very good evidence of scarcity of resources that people might want. If we just stick with water, and by the way, there are plenty of other resources on them, but just sticking with water for a moment. Right now, based on what they can sense from orbit, NASA appears to have detected an estimated 600 billion Kilograms of water between the north and south poles of the moon. And that's not counting what they might find as they get into the lava tubes and other underground areas. In the asteroids and comets, the estimates range from about 400 billion to 1.2 trillion kilograms. On Mars and its atmosphere 20 million trillion kilograms and I'm not misspeaking there, it's 28 million multiplied by a trillion kilograms. The rings of Saturn: 15 million trillion kilograms. And then there are the ocean worlds of Ganymede, Titan, Callisto, Europa, these are all the names of moons that are orbiting Jupiter and Saturn. Again, millions of trillions of kilograms.
It seems at this time very unlikely that if we're just thinking about water for a second, and again, there are so many other resources, that there's any reason why anyone would want to engage in a dispute over the water in say, the Shackleton crater on the south pole of the moon, when they could just go over to the Schumacher crater, or the de Gerlache crater, or any of the other dozens of craters across the south pole of the moon, which are spread across an area the size of Colorado. And so the hope is that between the heavy national supervision, the fact that any kind of conflict in space is so dangerous, and there doesn't seem to be a reason for it because there's not much scarcity going on up in our space, the hope at least and it seems to be a well-informed hope is that there will be very little dispute over these resources.
AK: When you named all of the potential places that resources could be mined down the road, when we talk about down the road, how far into the future are we looking. Are we talking about next decade or next century when we're gone, like what's possible on the timeline?
AM: The hope is that within the next decade we will at least see demonstrations of the technology that will be used to acquire and use various resources in outer space. In fact, recently at my company Blue Origin, we revealed that we're working on something that we call Blue Alchemist, which is a demonstrator type of program where we're developing the technology, in partnership with NASA. NASA granted us an award called the tipping point award to develop the technology that will hopefully be used someday to make solar panels on the moon. The idea is that because the lunar regolith, which is the technical term for the lunar soil, because that lunar soil contains iron, aluminum, silicon and other components that are necessary to build a solar panel, the idea is that we can develop the technology to build solar panels on the moon someday. When will we actually have a rover rolling across the moon scooping up regolith and spitting out solar panels? I don't know. I don't have any projections on that. This is still very early days. But the hope is that once these things start happening, they can start accelerating. Because once we can start building solar panels on the moon, well, that's one less thing we need to carry to the moon, which reduces our fuel requirements, which enables us to bring other things. Likewise, if we can start developing fuel from the moon with the ice on say the lunar surface or in the craters near the north and south pole, well, that's one less thing we need to bring with us. And the idea is that it will increase very slowly at first, but hopefully, at a gradually increasing rate exponentially as time goes on. So, that in future generations the opportunities to explore this solar system and beyond, will be continuously increasing for everyone in the world.
AK: And then finally, when we're looking at the governments versus — like through the Artemis program — the commercial space industry, how likely is it that perhaps this commercial space industry will lead rather than follow the U.S. government back to the moon and beyond?
AM: I think that what we are seeing is an evolution of a long-standing partnership between government and industry. By the way, a lot of common misconception about this, which is somewhat understandable. When people look at the old videos of the Apollo program, they see a spacecraft that just says USA or United States of America on it with an American flag and then a lunar lander that lands on the moon. And a lot of people don't know that that lunar lander was built by the Grumman Aircraft Company on Long Island in New York, under contract to NASA.
A lot of people might not know that that enormous Saturn five rocket that sent the lunar lander to the moon was built by a bunch of different companies: Boeing, Lockheed, Douglas Aircraft Company, North American Aviation, and Rocketdyne all contributed parts to that architecture. So, commercial companies have always been an essential part of space exploration. What is changing now is that for some missions, not all of them, but for some missions, commercial companies are proposing their own architectures to NASA instead of waiting for NASA to tell them what they want.
Of course, it's still going to be NASA astronauts going to the moon. It's still going to be NASA planning the missions to go to the moon and then going to commercial companies and saying, what have you got for us in terms of a launch vehicle in terms of a lander? And there will be also some distinctions in terms of the types of contracts that NASA will be issuing, which in some cases are different from the ones that were used in previous generations. But I think it will continue to be a partnership between private industry and government for the foreseeable future.
AK: Thanks so much, Austin, for joining us on Discovery. I feel like that the name Discovery fits very much with the conversation of what we are discovering is out there. Thanks again for being with us.
AM: Absolutely. My pleasure. Thanks again for having me.
AK: Austin Murnane is senior legal counsel for Blue Origin. A former U.S. Marine, he is also the author of The War Storytellers, published in 2015.
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