Space tourism gets a boost from a hands-off FAA; Lawyers are upfront about a risky industry

MEMPHIS -- In the latest space race -- to lift paying customers out of Earth's atmosphere -- aviation safety regulators occupy a new niche: They are promoting an industry expected to suffer deadly accidents instead of applying strict safety rules.

Federal Aviation Administration officials detailed their unique relationship with the emerging space-tourism industry for a gathering of air and space lawyers this month.

Several firms are racing to serve people willing to pay a steep price for the privilege of floating briefly in space, perhaps in as little as two years. Some scientists believe commercial competition will fuel rapid development of space travel technology.

In the Commercial Space Launch Amendments Act of 2004, Congress told the FAA to treat the industry more like an adventure business than an air carrier. The law protects the rights of those who wish to be among the first private citizens to go into space -- likening them to visionaries and adventurers who knowingly take other risks like climbing mountains -- while giving the people who operate the new types of unproven spacecraft the scientific latitude to learn from their first fatal mistakes.

"This is an ultra-hazardous business," Patti Grace Smith, the FAA's associate administrator for Commercial Space Transportation told attendees at an American Bar Association forum on air and space law. She said part of the agency's effort to promote the industry's success means giving it room to fail.

By law, the FAA cannot impose safety regulations on the industry until 2012 unless there is a serious accident in flight or if the agency -- which will attend every launch and is working closely with industry professionals -- detects a safety threat that companies refuse to fix.

"We're going to kill some people," says Tracey Knutson, a lawyer who has advised the FAA and who moderated a panel discussion on the topic. "The question is how the relationship then changes."

Laura Montgomery, senior attorney in the FAA's Office of the Chief Counsel, said once somebody dies, "we then have the authority to act and we would." Until then, Congress "told us to keep our mitts off."

She acknowledges that the current approach represents "a different philosophy on how government should regulate." But she says it makes sense because "everyone realizes this a risky activity."

At the heart of the legal debate is the concept of informed consent. The FAA says the people who will be the first to fly must agree, in detailed legal papers, to be "participants" instead of "passengers," who have a higher expectation of safety. "It's not like you and me flying on an aircraft," Montgomery says.

They will have to agree not to sue the federal government if they are maimed or killed on their flight, which may provide only minutes of weightless sensations.

Virgin Galactic, which hopes to put people into space by 2009, plans to use a spaceship that will be carried to 50,000 feet by a commercial jet aircraft. The craft would then detach and fire a rocket to soar to about 400,000 feet, where six passengers would briefly float in space before gravity begins to pull the craft back to Earth. Participants would pay $200,000 each.

The FAA is still charged with protecting people on the ground from space launches. The agency also must protect others flying in nearby airspace around the ascent and descent of a spacecraft.

Officials plan to monitor safety at every spacecraft launch, which requires FAA approval.

"We authorize launch and re-entry," Montgomery says. "We have no jurisdiction in orbit. Going up and coming down, that's us."

Industry representatives say they love this kind of relationship with the federal safety agency.

"It is the only government agency that I come out of with a smile on my face," says Michael Gold, chief legal counsel for Bigelow Aerospace, which is working to put habitable structures in space.

"They are holding a hand out to what is a very nascent industry. The most vital thing is not to kill us in our crib."

If the government is too heavy-handed in terms of safety, industry legal experts say, it would thwart the kind of rapid progress that is only possible when aviation risk-takers try to push scientific limits.

"None of us have any data to support our beliefs," says Jeff Greason, president of XCor Aerospace, which is trying to develop reusable rocket-powered vehicles for space travel. "If we just do what we've done before, we will never be viable, and we will never be safe."

People already have been killed on the ground. Three workers died and three others were injured in July after a test at a Scaled Composites plant in the Mojave desert in California ended in an explosion. The company, which was started by aviation pioneer Burt Rutan, launched SpaceShipOne, the first manned, privately financed spacecraft, in 2004. The blast, which is still under investigation, has not slowed industry growth, experts told the forum. "We're cusping," Knutson says.

George Whitesides, executive director of the National Space Society and senior adviser to Virgin Galactic, says he and his wife have paid $200,000 each to be among the first private citizens to fly Virgin Galactic into space.

"It will be very good when we have multiple safe vehicles flying," Whitesides says. "We all get to go to space, which is what this is all about." While it will be fun and exciting, he says, it is also "important for advancing the species."

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