73 Am. U. L. Rev. 549 (2024).

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Abstract

Outer space resource extraction has become more feasible for the near future, with some companies already setting launch dates. The U.S. Commercial Space Launch Competitiveness Act of 2015 legalized resource extraction, but it did not resolve many challenges that resource extraction poses, such as safety risks while extracting; what, where, and how one can extract resources; and technology one can use. A patchwork of administrative agencies currently governs the regulatory field of outer space, and because it is such a novel procedure, it is unclear which administrative agency should assume regulatory authority over on-orbit resource extraction activities. Under a traditional Chevron analysis, the National Oceanic and Atmospheric Administration (“NOAA”) would have proper authority. However, because of West Virginia v. Environmental Protection Agency’s revitalization of the major questions doctrine, which agency has regulatory authority over on-orbit resource extraction activities would likely be a major question that Congress must answer clearly. This problem demonstrates the potential regulatory vacuum that could engulf all emerging technologies: if the regulation of everything that has vast political and economic significance requires clear congressional delegation, then many emerging technologies will simply go unregulated because of the unlikelihood of clear congressional delegation. To solve this problem for resource extraction, Congress should delegate regulatory authority over on-orbit resource extraction activities to NOAA because it is most suited to the task under a Gonzales v. Oregon analysis.

* Judicial Clerk. The views expressed in this Note are the author’s own views and not the views of her employer. Note & Comment Editor, American University Law Review, Volume 72; J.D., American University Washington College of Law, magna cum laude, 2023; B.A. Psychology and International Affairs, George Washington University, summa cum laude, 2020.