To Infinity and Beyond: The Future Legal Regime Governing Near-Earth Asteroid Mining

Our solar system is an extraordinary phenomenon. Within its boundaries, mankind successfully identified planets, stars, meteoroids, comets, asteroids, and the interplanetary medium. While mankind’s study of the atmosphere seems articulated and advanced, we have barely exposed the mysteries our solar system encompasses. There is, however, something within our solar system that catches the eyes of both scientists and entrepreneurs alike: asteroids. “Asteroids are lumps of metals, rock and dust, laced with ice and tar, which are the cosmic leftovers from the Solar System’s formation about 4.5 billion years ago.” There exist thousands of asteroids — ranging in size and shape — near Earth’s atmosphere. Most of the asteroids, however, are located between Mars and Jupiter in a grouping known as the Main Asteroid Belt. While “house-sized” asteroids are considered small, those smaller fragments contain metals worth millions of dollars. Due to commercial mining, such metals exist in scarce quantities on Earth. Therefore, the era of near-Earth asteroid mining is upon us. Asteroid mining is the exploitation of raw materials from asteroids — also known as planetoids — and other minor planets, including near-Earth objects. These raw materials include precious metals, such as gold and silver. With terrestrial natural resources slowly diminishing, then-President Barack Obama signed into law the U.S. Commercial Space Launch Competitiveness Act. As applied, this Act prohibits the private or public sector ownership of an asteroid. However, a private or public entity — should it develop the means by which to mine in space — may legally possess any natural resource it can extract from said asteroid. When signed, this Act forged a path for any entity to begin the preparations necessary for the extraction of precious metals and natural resources from an asteroid. Thus, near-Earth asteroid mining can no longer be considered an enterprise of the distant future. Of course, extracting a surplus of minerals — some perhaps unknown to mankind — from a space rock near Earth’s atmosphere raises many red flags. One issue raised by asteroid mining involves the difficulty in tailoring current environmental laws and international treaties to protect Earth’s natural environment and mine legally. To some, the benefits of near-Earth asteroid mining greatly outweigh the burdens, including the negative environmental impacts. To others, this is not the case. The key concern amongst environmentalists is air quality. Currently, mining burdens Earth’s air quality with hazards such as fly ash, bottom ash, and flue-gas desulfurization. Near-Earth asteroid mining will produce similar environmental issues, requiring the United States to refine its current environmental laws. Part I of this Note will address outer space laws and their impacts on near-Earth asteroid mining, focusing primarily on the Outer Space Treaty, the Moon Treaty, and the Convention on International Liability for Damage Caused by Space Objects. Then, this Note will analyze applicable existing United States environmental laws and what these laws mean regarding near-Earth asteroid mining. Currently, existing United States environmental laws, such as the National Environmental Policy Act, and the Clean Air Act, are not sufficient to govern the incoming environmental effects of near-Earth asteroid mining. This Note will explore the intricacies of the relationship between current environmental regulations and a new frontier.