It’s rare for an arcane Federal Communications Commission (FCC) agenda item to attract attention outside of the trade press, but the September 30 vote on whether to exempt satellites from National Environmental Policy Act review as a rule has some environmental organizations and astronomers up in arms.
Since the 1980s, all satellite licensing efforts at the FCC have enjoyed a categorical exemption under the National Environmental Policy Act (NEPA), generally excluding them from its potentially lengthy standard review process. On September 30, the FCC plans to go a step further. Specifically, the FCC is clarifying that space-based activities do not rise to the level of a “major federal action,” as it was recently defined in the Fiscal Responsibility Act of 2023, and therefore are not subject to NEPA.
Activities receive a categorical exclusion under NEPA if a federal agency determines that they do not typically have a significant impact on the human environment. Categorical exclusions allow for a far more streamlined and efficient process for both the federal government and the applicant: A 2014 review estimated about 95% of NEPA analyses are for categorically excluded activities. Note that interested parties can still ask an agency to make an exception to categorical exclusions if the action before them has unusual or extraordinary circumstances.
Now, the FCC is going a step further in arguing that space-based operations under its regulatory authority are not subject to NEPA at all anymore because they no longer meet the scope of activities that legislation is focused on. The new definition of “major federal action” — the threshold for NEPA applying — is “an action that the agency carrying out such action determines is subject to substantial Federal control and responsibility.” The definition further clarifies that non-federal actions carried out without federal funding and without the ability for a federal agency to control the outcome of the project are not considered major federal actions. Given that the FCC is not funding the satellite activities it is licensing or controlling its operations — it simply authorizes satellite utilization of spectrum — this finding appears consistent with the updated statute.
In claiming that NEPA should not apply to satellite licensing, the FCC also cites a longstanding exemption for activities conducted outside of the United States with effects located “entirely outside the jurisdiction of the United States.” However, whether that exemption is applicable is somewhat murky, given an emerging body of research that points to atmospheric impacts of satellite reentry, among other environmental issues that impact life here on Earth. These concerns will be reviewed in the next section.
