Viasat Stay Request - As-Filed
Viasat Stay Request - As-Filed
Viasat Stay Request - As-Filed
____________________________________
)
In the Matter of )
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Space Exploration Holdings, LLC ) IBFS File No. SAT-MOD-20200417-00037
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Request for Modification of the ) Call Signs S2983 and S3018
Authorization for the )
SpaceX NGSO Satellite System )
)
____________________________________ )
VIASAT, INC.’S
REQUEST FOR STAY PENDING JUDICIAL REVIEW
i
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
____________________________________
)
In the Matter of )
)
Space Exploration Holdings, LLC ) IBFS File No. SAT-MOD-20200417-00037
)
Request for Modification of the ) Call Signs S2983 and S3018
Authorization for the )
SpaceX NGSO Satellite System )
)
____________________________________ )
VIASAT, INC.’S
REQUEST FOR STAY PENDING JUDICIAL REVIEW
Pursuant to 47 C.F.R. §§ 1.41 and 1.43, Viasat, Inc. (Viasat) respectfully requests that the
Commission stay the effectiveness of its order granting SpaceX’s application to modify its
Ku/Ka-band satellite system, which was released on April 27, 2021 (Order), pending judicial
review of that Order in the D.C. Circuit. The Commission has violated the National
Environmental Policy Act (NEPA) by failing even to assess the environmental impact of both
deploying thousands of satellites into low-Earth orbit (LEO) and then having those satellites
ultimately disintegrate into the atmosphere. Because the Order will allow SpaceX to cause
immediate and irreparable harm to Viasat and the public at large, the Commission should stay
the Order until judicial review is complete. If the Commission does not grant a stay, Viasat
intends to seek a stay from the D.C. Circuit. Accordingly, Viasat respectfully requests that the
Commission rule on this request by June 1, 2021; if it does not, Viasat will deem the request
denied.
1
INTRODUCTION AND SUMMARY
The Order authorizes SpaceX to deploy satellites into LEO at an unprecedented scale—
but without even the most basic form of environmental review. That is a legal error, and the
court of appeals is likely to correct it. The Commission should not allow SpaceX to rush its
satellites into orbit while the D.C. Circuit is deciding whether the Commission wrongly skipped
the environmental review that is statutorily required before a federal action that may affect the
environment.
In the history of human space exploration, humans have launched approximately 9,000
satellites into space. SpaceX satellites already account for nearly two thousand of these. The
Order authorizes SpaceX to deploy 2,824 additional operating satellites into LEO, plus an
unlimited number of replacements. And even those satellites are only one step in SpaceX’s plan
to deploy a mega-constellation initially consisting of more than 12,000 operating satellites, and
ultimately comprising more than 42,000 operating satellites. Whatever the benefits of this new
form of mega-constellation, it plainly poses significant risks to the environment. By design, each
of SpaceX’s satellites will ultimately disintegrate into the atmosphere, collectively leaving
behind millions of pounds of metallic compounds that could increase global warming. While in
space, its satellites will reflect sunlight, increasing light pollution and altering the night sky. And
there is a serious risk that these satellites will collide—either with each other, satellites operated
by third parties, or with existing space debris. Such collisions will fragment the satellites, spread
dangerous additional debris throughout surrounding orbits, and adversely affect the ability of
NEPA requires that the Commission at least consider these harms before granting
SpaceX’s application. NEPA instructs the Commission, like all other “agencies of the Federal
2
major action “significantly affecting the quality of the human environment.” 42 U.S.C.
§ 4332(2)(C). Under the Commission’s NEPA regulations, if an “interested person” alleges that
a Commission action will have such an effect, the Commission “will require the applicant to
“places upon an agency the obligation to consider every significant aspect of the environmental
decisionmaking.” WildEarth Guardians v. Jewell, 738 F.3d 298, 303 (D.C. Cir. 2013) (internal
The Commission here refused to follow that statutory and regulatory obligation and
Viasat and others explained, through hundreds of pages of briefing and more than 1,500 pages of
exhibits, that launching thousands of satellites into LEO at the very least may impact the
environment, because those satellites create collision risks and threaten to pollute the orbital
environment, reflect light and otherwise undermine opportunities to explore and enjoy the night
sky, and will ultimately disintegrate into the atmosphere on reentry. These consequences
warrant at least an environmental assessment (EA) before making a decision. Yet the
Commission did not even require SpaceX to prepare an EA, the most basic analysis under
NEPA. Instead, largely ignoring Viasat’s arguments and evidence, the Commission concluded
that SpaceX’s unprecedented deployment of thousands of satellites did not even create the
potential for a significant environmental impact. The D.C. Circuit is likely to set aside that
decision. The Commission’s scant reasoning on this point is inadequate, and the few reasons the
Commission gave directly conflict with binding D.C. Circuit precedent criticizing the
3
Commission’s past failures to comply with NEPA.
Given the Commission’s failure to follow NEPA’s most basic requirements, the agency
should stay its Order to avert the immediate and irreparable harm to Viasat and the public from
allowing SpaceX to deploy satellites under the Order during the pendency of the appeal. SpaceX
is deploying hundreds of satellites per month. Once those satellites go up, they cannot be
deorbited without leaving harmful metallic compounds in the atmosphere, thereby harming the
environment—precisely the conduct NEPA is designed to prevent. And while they stay up, they
pose a threat to Viasat and other satellite operators. The more satellites SpaceX launches, the
greater the risk of catastrophic collisions—the debris from which would endanger the orbits
available for Viasat’s satellite operations, and through which Viasat’s satellites must pass during
orbit raising and deorbiting operations. Indeed, Viasat is authorized to deploy its own non-
geostationary orbit (“NGSO”) satellite network and has a pending application to relocate that
network to LEO. Finally, each satellite that SpaceX deploys will increase light pollution while
in orbit, adversely impacting efforts to explore and enjoy the night sky.
Before allowing these harms to occur, the Commission should allow the D.C. Circuit to
LEGAL STANDARD
When evaluating a request for a stay pending appeal, the Commission considers four
criteria: “(1) a likelihood of success on the merits, (2) the threat of irreparable harm absent the
grant of preliminary relief, (3) the degree of injury to other parties if relief is granted, and (4) that
a stay will be in the public interest.” 1 “These factors are balanced on a case-by-case basis and a
1
In the Matter of Hyperion Commc’ns Long Haul, L.P., Order Granting Request for Emergency
Stay, 15 FCC Rcd. 10,202, 10,203 (2000) (citing Va. Petroleum Jobbers Ass’n v. FPC, 259 F.2d
921, 925 (D.C. Cir. 1958)).
4
request for stay may be granted on account of a particularly strong showing as to at least one of
ARGUMENT
All four factors weigh in favor of a stay, especially in light of the likely wide-ranging
effects of SpaceX’s Starlink project and the “compelling public interest in the enforcement of
NEPA.” 3
The D.C. Circuit is likely to hold that the Commission failed to comply with NEPA.
environmental effects that SpaceX’s Starlink mega-constellation would cause over the 15-year
term of SpaceX’s NGSO system license. Satellite launch and reentry will release harmful
warming. The satellites’ significant contribution to light pollution will interfere with scientific
work and enjoyment of the night sky. And the dramatic increase in the number of objects in
LEO will significantly elevate the risk of collisions, which in turn would create debris that
threatens harm in space and on Earth. Despite the scientific evidence identifying and
substantiating these consequences, the Order concluded that there was not even a potential for a
The D.C. Circuit is likely to vacate the Order for failing to comply with NEPA. When
issuing a decision, an “agency must examine the relevant data and articulate a satisfactory
explanation for its action including a rational connection between the facts found and the choice
2
Id.; see also AT&T v. Ameritech, Memorandum Opinion and Order, 13 FCC Rcd. 14,508,
14,516 n.43 (1988) (“We find no due process requirement that any single factor, such as
irreparable injury to the moving party, be demonstrated as a prerequisite to issuance of a
standstill order.”).
3
Realty Income Tr. v. Eckerd, 564 F.2d 447, 456 (D.C. Cir. 1977).
5
made.” 4 Agency action will be found “arbitrary and capricious” if the agency “relied on factors
which Congress has not intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the product of
agency expertise.” 5 In short, “[w]here … the record belies the agency’s conclusion, [the Court]
Applying these principles, the D.C. Circuit is likely to reject the Commission’s
conclusion that NEPA does not require any environmental assessment in this case—indeed, the
Order contains many of the precise errors that led the D.C. Circuit to vacate the Commission’s
order in American Bird Conservancy, Inc. v. FCC. 7 The Commission’s analysis contained two
overarching errors: It failed to adequately explain its conclusion and, to the extent it did,
erroneously relied on uncertainty as a basis for refusing further analysis, which is exactly the
opposite of what NEPA requires. Moreover, the Commission’s bases for rejecting Viasat’s
specific claims of potential environmental harm do not withstand even minimal scrutiny.
The Order did not adequately explain the Commission’s conclusion and
erroneously relied on uncertainty as a reason to refuse further assessment.
Viasat’s NEPA petition was supported by more than 1,500 pages of exhibits and more than
100 pages of briefing, yet the Commission addressed the NEPA issues in just a few cursory
sentences. The Commission largely rested on its conclusion that Viasat’s evidence left some
4
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983).
5
Id.; see also Nevada v. Dep’t of Energy, 457 F.3d 78, 87-88 (D.C. Cir. 2006) (“[W]e apply the
APA’s arbitrary and capricious standard to a NEPA challenge.”).
6
County of Los Angeles v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999).
7
516 F.3d 1027, 1033-1034 (D.C. Cir. 2008).
6
uncertainty concerning the environmental impact of SpaceX’s proposed mega-constellation.
That “plainly contravenes the ‘may’ standard” of NEPA. 8 As the D.C. Circuit explicitly held in
American Bird Conservancy, uncertainty “confirms, rather than refutes,” the need for
would jeopardize NEPA’s purpose to ensure that agencies consider environmental impacts
before they act rather than wait until it is too late.” 9 Indeed, in that decision, the D.C. Circuit
“admonish[ed]” the Commission for its decision to forge ahead where the environmental effects
Beyond that brief and erroneous reasoning in the Order, the Commission’s discussion was
rulemaking”—the obligation to adequately explain its decision. 11 The bulk of the Order’s
discussion of NEPA was devoted to summaries of the parties’ arguments, but the Commission’s
obligation was to explain not just the possible choices but “the choice made.” 12 In response to
one of Viasat’s lead arguments, for example, the Commission responded: “[W]e find that the
allegations Viasat makes in its petition are insufficient for us to determine that additional
environmental consideration is necessary under our rules or that granting the SpaceX
ozone layer.” Order ¶ 83. That is the Commission’s entire analysis of that issue—and it is
8
American Bird Conservancy, 516 F.3d at 1033.
9
Id. at 1033-1034.
10
Id. at 1033 (citation omitted).
11
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016).
12
Id. (quoting State Farm, 463 U.S. at 43).
7
As shown in more detail below, these failings—misapplication of the “may” standard and
Turning to the specific environmental harms at issue, Viasat’s arguments and exhibits
established, at a minimum, that chemical changes to the atmosphere resulting from launch and
reentry of many thousands of Starlink satellites may have a significant environmental impact,
environmental assessments only by (1) applying a heightened NEPA standard that the D.C.
Circuit has repeatedly rejected, and (2) failing to account for entire categories of environmental
impact.
As SpaceX itself touts, approval of its Starlink mega-constellation will lead to the launch
and ultimate decay of thousands of satellites. Indeed, the whole premise of Starlink is to create a
system of essentially disposable satellites that will regularly burn up in the atmosphere—only to
be replaced by new, similarly disposable satellites. Of course, when satellites burn up in the
atmosphere, they do not simply vanish. Instead, the largely aluminum satellites produce
aluminum oxide, or “alumina,” which remains in the atmosphere. 13 Researchers have predicted
that the reentry of satellite constellations (including satellites from Starlink) could lead to over 22
13
See Application for Modification of Authorization for SpaceX NGSO Satellite System,
Attachment A, at 24, IBFS File No. SAT-MOD-20200417-00037 (Apr. 17, 2020).
8
million pounds of alumina being dispersed in the atmosphere at a given point in time. 14 And
given the size of Starlink relative to other satellite constellations, its satellites’ short lifetimes,
and their largely aluminum construction, those researchers predict that Starlink will be the
dominant contributor of that alumina. 15 Because alumina absorbs more radiation from Earth
than it reflects from the sun, this mass of alumina may lead to warming of the stratosphere, and
likely the upper troposphere—which, of course, contributes to climate change. 16 Alumina also
damages the ozone layer by providing a surface for chemical reactions that contribute to ozone
depletion—contributing, for example, to the creation of the “Ozone Hole” over the Antarctic. 17
And Viasat’s evidence shows that SpaceX’s operations may harm the ozone layer in other
The Commission did not dispute that SpaceX’s proposal to demise thousands of
aluminum-based satellites into the atmosphere will “affect the chemicals entering the
atmosphere.” Order ¶ 82. But the Commission nevertheless concluded that Viasat’s evidence
did not establish, with sufficient certainty, “that additional environmental consideration is
necessary.” Order ¶ 82. The D.C. Circuit, however, has previously vacated the Commission’s
orders for refusing to conduct a NEPA analysis on precisely this ground. In American Bird
Conservancy, the Commission dismissed a request to conduct an EIS based on “the lack of
specific evidence … concerning the impact” that communications towers would have on the
environment, and specifically whether the towers would increase bird mortality rates stemming
14
See Ex. 15 to Viasat NEPA Petition.
15
Id.
16
See Ex. 14 to Viasat NEPA Pet. at 193; Viasat Pet. 11-12.
17
See Ex. 12 to Viasat NEPA Pet. at 54.
18
See Ex. 12 to Viasat NEPA Pet. at 52.
9
from collisions with the towers. 19 On appeal, the D.C. Circuit characterized the Commission’s
reasoning as revealing “an apparent misunderstanding of the nature of the obligation imposed by
the statute.” 20 The Commission’s “demand for definitive evidence of significant effects,” the
court explained, “plainly contravenes the ‘may’ standard” in 47 C.F.R. § 1.1307(c). 21 The court
thus “admonished” the Commission that “the basic thrust of the agency’s responsibilities under
NEPA is to predict the environmental effects of a proposed action before the action is taken and
those effects [are] fully known”—making uncertainty an impermissible basis for refusing
The Commission repeated this same error here, though with even less reasoning than it
provided in American Bird Conservancy. As the D.C. Circuit’s opinion in American Bird
Conservancy makes clear, the Commission cannot demand definitive evidence of environmental
impact before conducting the environmental analysis intended to gather such evidence. Rather,
the question is whether the Commission’s action may lead to an environmental impact that the
agency should explore. And Viasat provided ample evidence to show that decay of SpaceX’s
satellites may increase the level of alumina in the atmosphere and lead to warming of the
atmosphere and destruction of the ozone layer. Notably, SpaceX did not dispute that satellite
reentry would lead to an increase in alumina in the atmosphere, but rather quibbled about the
precise amount of alumina its satellites would produce. 23 But to the extent there is a dispute over
19
516 F.3d at 1033.
20
Id. at 1033.
21
Id.
22
Id. (quoting Scientists’ Inst. For Pub. Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079,
1091-92 (D.C. Cir. 1973)).
23
See SpaceX Apr. 2 Letter at 5.
10
just how large an effect the alumina would have, that is plainly a matter the Commission needs to
consider through an EA. Indeed, the D.C. Circuit held precisely that in American Bird
Conservancy, explaining that conflicting evidence over the scope of an environmental impact
The Commission took a similar tack in sidestepping the remainder of Viasat’s evidence
surrounding the release of other chemical compounds, Order ¶ 82, without addressing the
research Viasat cited, which suggests that “particles from reentering space junk will be a zoo of
complex chemical types”; “[r]eentry is as much of an ‘emission’ as launch”; and “[v]ery little is
known about reentry dust production, the microphysics of the parties and how reentry dust could
affect climate and ozone.” 25 In light of evidence from leading researchers suggesting that very
large numbers of satellite reentries may have significant environmental effects, the proper
response for the Commission was to conduct an assessment—not to demand certainty from
Viasat. 26 After all, “speculation is … implicit in NEPA,” and the D.C. Circuit has thus
“reject[ed] any attempt by agencies to shirk their responsibilities under NEPA by labeling any
24
516 F.3d at 1034 (“Under such circumstances, the Commission’s regulations mandate at least
the completion of an EA before the Commission may refuse to prepare a programmatic EIS.”).
25
Martin N. Ross & Leonard David, An Underappreciated Danger of the New Space Age:
Global Air Pollution, Sci. Am. (Nov. 6, 2020), https://www.scientificamerican.com/article/an-
underappreciated-danger-of-the-new-space-age-global-air-pollution/.
26
See Greater Yellowstone Coal. v. Lewis, 6287 F.3d 1143, 1158 (9th Cir. 2010) (describing
NEPA as a “look before you leap” regime).
27
Scientists’ Institute for Public Information, 481 F.2d at 1092.
11
2. The Commission did not address entire categories of environmental
impact.
consider an important aspect of the problem”—twice. 28 First, the Commission simply did not
evaluate whether the substantial number of rocket launches needed to deploy SpaceX’s
thousands of satellites might themselves affect atmospheric ozone levels. Because the FAA
“prepared its own EA on the SpaceX launches,” the FCC concluded that “no additional
consideration of potential impacts associated with those launches is required.” Order ¶ 82. 29 But
the FAA’s assessment was limited to two discrete categories of potential effects on the
atmosphere: the effects of launches on air quality below 3,000 feet and the effects of greenhouse
gas emissions from launches on climate change. 30 The FAA did not conduct a comprehensive
evaluation of how launch emissions affect stratospheric chemistry, nor did it consider the effect
that these launches might have on depletion of the ozone layer. 31 The Commission never
considered whether these missing pieces might warrant an EA, instead relying entirely on the
Second, the Commission did not consider the harm that might result from satellite debris
that does not fully burn up in the atmosphere. Instead, the Commission explained that it had
already “assessed the casualty risk associated with the SpaceX satellites” when it considered
“technical information” SpaceX submitted “concerning the demisability of its satellites” in its
28
State Farm, 463 U.S. at 43.
29
See also SpaceX Apr. 2 Letter at 5.
30
Final Environmental Assessment and Finding of No Significant Impact for SpaceX Falcon
Launches at Kennedy Space Center and Cape Canaveral Air Force Station, at 70-72, FAA (July
2020), https://www.faa.gov/space/environmental/nepa_docs/media/SpaceX_Falcon_Program_
Final_EA_and_FONSI.pdf.
31
See Ex. 12 to Viasat NEPA Pet. at 52.
12
initial April 26, 2019 modification request. Order ¶ 85. Because, in the Commission’s view,
“there is no material difference between those satellites and the satellites at issue here,” it
The Commission is wrong twice over. To start, even assuming the Commission’s
premise that the satellites evaluated in connection with SpaceX’s earlier modification request and
the satellites at issue here are effectively equivalent, the Commission ignored what SpaceX’s
“technical information” actually said. Far from dismissing any casualty risk, the information
SpaceX provided identifies “three unique components” that “may have a chance of reaching the
Earth’s surface with sufficient energy to result in human casualty,” 32 not to mention potential
damage to wildlife and the natural environment. SpaceX in fact recognized as much, as it
explained to FCC that its future satellite designs would either omit or replace these
components. 33 Thus, evidence the Commission cited in fact establishes that the Commission
should have assessed the acknowledged potential that components from SpaceX’s satellites
Even putting that aside, the Commission’s premise is wrong: There is no basis for
treating the previously-evaluated satellites and the satellites at issue here as equivalent as to their
demisability. The preliminary evaluation on which the Commission relied was focused on an
older generation of SpaceX satellites—an evaluation that did not even require SpaceX to provide
the high-fidelity evaluation that the Commission requested. Nothing in the record establishes
32
Attachment A: Technical Information to Supplement Schedule S at 45-48, IBFS File No. SAT-
MOD-20181108-00083 (Nov. 8, 2018); see also Viasat NEPA Reply at 27.
33
Letter from William M. Wiltshire, Counsel to SpaceX, to Jose P. Albuquerque, Chief, Satellite
Div., Int’l Bureau, FCC at 5, IBFS File No. SAT-MOD-20181108-00083 (Mar. 13, 2019).
13
that the new satellites are materially equivalent to the old ones with respect to demisability.34
The data in the record shows that SpaceX’s old satellites were not fully demisable, yet the
Commission did not so much as acknowledge that the current application involves satellites with
Viasat is likely to succeed in showing that potential harms from light pollution
and astronomical interference warrant NEPA review.
impact is equally flawed as to light pollution and astronomical interference. Viasat provided
extensive evidence, in the form of both photographs and scientific data, showing that deploying
through a marked increase in light pollution.35 Based on this evidence, Viasat identified four
the number of satellites in LEO grows, so too does the amount of light pollution, with a
concomitant increase in “the potential for substantial adverse impacts to ground- and space-based
34
Letter from William M. Wiltshire, Counsel to SpaceX, to Jose P. Albuquerque, Chief, Satellite
Div., Int’l Bureau, FCC at 5, IBFS File No. SAT-MOD-20181108-00083 (Mar. 13, 2019);
Attachment A: Technical information to Supplement Schedule S at 45-48, IBFS File No. SAT-
MOD-20181108-00083 (Nov. 8, 2018); see also Viasat NEPA Reply at 26.
35
See Viasat NEPA Pet. at 16-21; Exs. 18-24 to Viasat NEPA Pet.; Viasat NEPA Reply at 27-
35; Ex. 12-14 to Viasat NEPA Reply; Viasat Apr. 16 Letter at 4-6.
36
Am. Astronomical Soc’y, AAS Issues Position Statement on Satellite Constellations (June 10,
2019), https://aas.org/press/aas-issues-position-statement-staelliteconstellations; see also Royal
Astronomical Soc’y, RAS Statement on Starlink Satellite Constellation (June 7, 2019),
http://ras.ac.uk/news-andpress/news/ras-statement-starlink-satellite-constellation; Int’l
Astronomical Union, IAU Statement on Satellite Constellations (June 3, 2019),
http://www.iau.org/news/announcements/detail/ann19035/.
14
that an extensive satellite constellation like Starlink will have “significant negative
both to observe and to take photographs. 37 For instance, professional astronomer Dr. Andy
Lawrence wrote that Starlink satellites pose a “[t]hreat to astronomical science” and “regularly
Second, Viasat explained to the Commission that it is not just the size of SpaceX’s
satellite constellation that creates unique concerns, but its orbital altitudes as well. To an
observer on Earth, satellites appear brighter at lower altitudes because they are closer. 39 And that
“important time for key classes of astronomical observations, such as the detection and
Third, Viasat cited numerous studies showing that the Commission’s approval would
“significantly affect the quality of the human environment” by creating aesthetic, scientific,
social, cultural, and health effects resulting from an increase in light pollution. 41 These studies
included three separate scientific articles and a report from the United Nations documenting light
pollution’s negative effects in areas ranging from human health (including sleep disruption and
37
See Ex. 19 to Pet. at 3; M. Kocifaj et al., The Proliferation of Space Objects Is a Rapidly
Increasing Source of Artificial Night Sky Brightness 5 (2021); Viasat Apr. 16 Letter at 5 n.22.
38
Letter from Dr. Andy Lawrence to Ms. Marlene H. Dortch, Secretary, FCC at 1, IBFS File No.
SAT-MOD-20200417-00037 (Apr. 21, 2021).
39
See Ex. 18 to Viasat NEPA Pet. at 5-8.
40
Ex. 13 to Viasat NEPA Reply at 147.
41
Viasat NEPA Pet. at 16-19.
15
eye disorders) to animal migratory patterns. 42
Fourth, Viasat identified concerns about the effects that the Commission’s order would
have on radiofrequency astronomy. As the Commission itself has recognized, satellite signals
“can cause interference to radio astronomy observations,” thereby interfering with critical
scientific research. 43
Notably, the Commission did not dispute any of these potential environmental impacts.
To the contrary, the Commission acknowledged the potential for such impacts and then simply
brushed them aside by pointing to steps SpaceX has purportedly taken to mitigate them. The
Commission was satisfied with SpaceX’s “representation[s]” that it had “diminished the average
brightness of its satellites,” “made commitments to the astronomy community regarding further
reduction in the visibility of its satellites,” and entered into an agreement with the National
Science Foundation to limit radio interference. Order ¶ 87. 44 But the fact that SpaceX’s
environmental impact would be even bigger absent mitigation does not absolve the agency from
evaluating the impact that undisputedly will still occur. In other words, SpaceX’s claimed
mitigation may be a factor that could be considered as part of an EA, but it is not a basis for
refusing to prepare an EA at all. Moreover, Viasat presented extensive evidence showing that
SpaceX’s alleged mitigation efforts have not solved the scientific community’s concerns about
Even putting that aside, the Commission’s decision once again fails for lack of reasoning.
42
See Exs. 21-23 to Viasat NEPA Pet.; Ex. 13 to Viasat NEPA Reply.
43
Space Expl. Holdings, LLC, 33 FCC Rcd. 3391, 3399 (2018).
44
See also National Science Foundation, Statement on NSF and SpaceX Radio Spectrum
Coordination Agreement (June 4, 2019),
https://www.nsf.gov/news/news_sum.jsp?cntnid=298678.
45
Ex. 13 to Viasat NEPA Reply at 30; Viasat NEPA Reply at 31.
16
As discussed above, see p. 7, supra, an agency must “adequately explain” its decision by
“examin[ing] the relevant data and articulat[ing] a satisfactory explanation for its action
including a rational connection between the facts found and the choice made.” 46 The
Commission failed to do so here. Rather than engage with the evidence, it simply noted
SpaceX’s progress towards reducing light pollution, instructed SpaceX to maintain those efforts,
and then promised to keep monitoring the situation. Nowhere did the Commission explain why
Viasat’s dozens of studies, articles, and letters from professional astronomers failed to show that
SpaceX’s constellation may have a significant environmental impact. To the contrary, the
evidence compelled the Commission to continue “monitoring” the light pollution issue—a step
Finally, Viasat demonstrated that SpaceX’s satellite constellation may affect the
environment by increasing the amount of orbital debris. It is undisputed that some number of
SpaceX’s satellites will fail during its license term (indeed, many already have). 47 As the
Commission itself explained, satellites that fail “present a collision risk for as long as they
remain in orbit.” Order ¶ 62. The Commission recognized that the number of failed satellites
might reach into the hundreds. Order ¶¶ 61-63. And because SpaceX is launching its thousands
46
State Farm, 463 U.S. at 43; see also Van Hollen, Jr. v. FEC, 811 F.3d 486, 497 (D.C. Cir.
2016).
47
See SpaceX Ex Parte Filing at 8, IBFS File No. SAT-MOD-20200417-00037 (Sept. 14, 2020)
(acknowledging that some SpaceX satellites will fail); SpaceX Opp. at 2 (same); see also Letter
from Amy R. Mehlman, Vice President, U.S. Gov’t Affairs & Policy, Viasat, Inc., & Jarrett S.
Taubman, Assoc. Gen. Counsel, Gov’t & Regulatory Affairs, Viasat, Inc. to Marlene H. Dortch,
Sec’y, FCC, at 4 & n.10, IBFS File No. SAT-MOD-20200417-00037 (Jan. 15, 2021) (reporting
SpaceX satellite failure rate); Dr. Jonathan McDowell, Space Report (Nov. 5, 2020)
(documenting SpaceX satellite failures), http://planet4589.org.
17
of satellites into an already-crowded part of space, the collision risk is particularly acute. 48 The
Order largely agreed with these points, acknowledging that failing SpaceX satellites pose a
collision risk during the course of the license term of anywhere between 1 in 200 to 1 in 44.5
depending on the number of satellites launched and the precise failure rate. See Order ¶¶ 58, 63–
64. The Commission thus concluded that this risk is serious enough to require “continued
The Commission has in fact repeatedly catalogued the dangers of orbital debris. It
recently warned that “[t]he predicted increase in the number of satellites in orbit requires that
orbital debris mitigation be taken seriously by all operators in order to ensure the continued safe
and reliable use of space for satellite communications and other activities.” 49 And almost two
decades ago, it likewise noted that “orbital debris poses a potential risk to the continued reliable
use of these orbital regimes for space-based services and operations, as well as to the continued
safety of persons and property in space and on the surface of the Earth.” 50 It described why
“[t]he effects of collisions involving orbital debris can be severe,” explaining that “even very
small debris objects are capable of producing significant impact damage.” 51 And “for objects
larger than one centimeter in diameter, the damage caused to functional spacecraft can be
catastrophic.” 52 The Commission also notably highlighted that “such collisions can produce a
large amount of additional debris, which can be dispersed over a wide orbital area.” 53
48
Viasat NEPA Reply at 37 (collecting sources).
49
Mitigation of Orbital Debris in the New Space Age, FCC 20-54, at *2 (Apr. 24, 2020).
50
Mitigation of Orbital Debris, 19 FCC Rcd. 11,567, 11,575 (2004).
51
Id.
52
Id.
53
Id.
18
Despite its longstanding recognition of the serious problems posed by orbital debris, the
Commission still decided that no NEPA review was needed. Making matters worse, it did so in
a single conclusory sentence: “[W]e find that Viasat’s arguments about these issues have failed
consideration of these issues.” Order ¶ 89. The Commission failed to explain how the risk of
collisions leading to orbital debris was serious enough to require “continued monitoring,” but not
so serious as to require any environmental review. Id. ¶ 64. Moreover, the Commission’s
dismissal of Viasat’s evidence cannot be squared with its recognition that collision estimates
were uncertain because “the data covers only the early stages of constellation deployment” and
“[t]ypical spacecraft failure curves tend to show high failure rates at the earliest and latest stages
uncertainty is a reason for the Commission to conduct a NEPA review—not to play ostrich and
hope that SpaceX’s launch of thousands or even tens of thousands of satellites will somehow
* * *
In short, given the extensive record of potential environmental effects and the
Commission’s utter failure to explain its decision, the D.C. Circuit is likely to vacate the Order
Leaving the Order in place during the appeal will result in irreparable injury to
Viasat and the public.
irreparable harm absent the grant of [a stay].” 55 A party will suffer irreparable harm when the
54
See American Bird Conservancy, 516 F.3d at 1034.
55
Hyperion, 15 F.C.C. Rcd. at 10203.
19
injury it faces is imminent, and a court cannot restore the status quo ante by unwinding the
effects of the injury or providing adequate monetary compensation to the injured party. 56 That
standard is easily satisfied here: Both Viasat and the public at large will suffer substantial harms
from the Order in the absence of a stay, and those harms are immediate and irreparable.
The Order will cause Viasat and the public to face significant, concrete injuries.
If the Commission allows the Order to go into effect, the public will quickly face the
environmental harms discussed above. The launch of thousands of Starlink satellites, many of
which may soon disintegrate in the atmosphere, will release dangerous chemical compounds,
contributing to global warming and depleting the ozone layer. Some pieces of satellites falling to
earth can survive reentry and endanger people on the ground. 57 Light reflecting off the satellites
will change and pollute the heavens. And the risk of collision and orbital debris will increase
In addition, Viasat itself will face a number of imminent injuries as a result of the Order.
First, the risk of collisions poses particular risks to Viasat. As the Commission has recognized,
collisions involving even small objects “can produce a large amount of additional debris, which
can be dispersed over a wide orbital area.” 58 That means a collision involving a SpaceX satellite
risks creating debris that could have catastrophic and irreparable consequences for Viasat’s
existing and planned operations. Any additional debris that damages, disables, or destroys
Viasat’s satellites while traversing LEO or operating in LEO would cause harm to Viasat’s
56
See League of Women Voters v. Newby, 838 F.3d 1, 8 (D.C. Cir. 2016).
57
This risk has only grown easier to appreciate in recent weeks. See also Chinese Rocket Debris
Set to Hit Earth This Weekend—But No One Knows Where, NBC News (May 7, 2021), available
at https://tinyurl.com/RocketDebris.
58
Orbital Debris, 19 F.C.C. Rcd. at 11570.
20
business. And the presence of failed Starlink satellites that cannot avoid collisions, and any
debris created by the fragmentation of a Starlink satellite after a collision, could frustrate
Viasat’s efforts to deploy its own constellation in LEO—or, at a minimum, significantly increase
Second, even without satellite failures or catastrophic collisions, Viasat will suffer
concrete injuries because the Order creates a more crowded orbital environment. As crowding
increases, Viasat must expend time and resources ensuring that its own satellites—and
particularly its current and future LEO satellites—do not collide or otherwise interfere with
SpaceX’s. Moreover, because the Order authorizes SpaceX to begin filling up designated
physical areas of LEO with many thousands of satellites, the Order constrains Viasat’s ability to
Third, Viasat will suffer competitive injury from the agency’s Order. SpaceX intends to
use its environmentally irresponsible constellation to compete directly with Viasat in the market
for satellite broadband services. SpaceX’s current network is insufficient for widespread
commercial availability, but it has explained that once it has enough Starlink satellites in LEO—
and it is launching them at a rapid clip—it will be able to move out of “beta” mode, extend its
The harms the Order will cause Viasat and the public are not just significant and direct,
but also irreparable. As an initial matter, some of the injuries discussed above are irreparable on
59
SpaceX’s CEO has publicly suggested such direct competition, opining that “Starlink poses a
hazard to Viasat’s profits[.]” Kate Duffy, Here are the 7 big space companies in the race to
build a global satellite-internet network, Business Insider (April 17, 2021),
https://tinyurl.com/DuffySatelliteNetwork (quotation marks omitted).
21
their face: For instance, a satellite collision cannot be undone and has long-lasting effects, and
harmful metallic compounds from a demising satellite cannot be removed from the atmosphere.
More generally, the harms described above are irreparable because, once SpaceX launches a
satellite, it is impossible to deorbit that satellite without causing or increasing the very harms that
The competitive harms described above are also irreparable. 60 As discussed, SpaceX
intends to compete with Viasat directly for customers. While vacating the Order would stop
SpaceX from launching more satellites, allowing SpaceX to launch thousands of satellites in the
interim would allow SpaceX to argue that it must maintain those satellites it has already
launched—and maintain service to customers who have already subscribed. The Commission’s
past decisions have found irreparable injury to a competitor in a case, like this one, “where the
circumstances are such that it would be impracticable for the other party to withdraw service,
directly causing environmental harm—it will be impossible to unscramble the market effects
For these reasons, vacatur at the end of the appellate process would not suffice to remedy
number of satellites during the timeframe of the appeal. Indeed, SpaceX is deploying satellites
authorized by the Commission at an expedited rate. Its next launch—its fourth in the month of
60
See, e.g., Abbott Labs. v. Sandoz, Inc., 544 F.3d 1341, 1361 (Fed. Cir. 2008) (cataloguing
cases holding that loss of market opportunities constituted irreparable injury).
61
AT&T, 13 F.C.C. Rcd. at 14,521.
22
May—is scheduled for May 26, 2021. 62 Each launch carries approximately 60 satellites into
orbit, thereby (1) appreciably increasing the environmental risks outlined above, and (2)
expanding SpaceX’s operational capacity, allowing it to move its Starlink service toward full
In addition, none of the harms at issue could be adequately redressed by money damages.
The Commission is shielded by sovereign immunity, and Viasat does not have a cause of action
against SpaceX for the Commission’s improper approval of its modification. See, e.g.,
Regeneron Pharms., Inc. v. U.S. Dep’t of Health & Human Servs., No. 20-cv-10488 (KMK),
2020 WL 7778037, at *4 (S.D.N.Y. Dec. 30, 2020) (collecting cases holding that party suffers
irreparable injury when sovereign immunity bars it from recovering for its losses).
For all these reasons, the irreparable injury to Viasat warrants a stay pending appeal.
The Commission next considers “the degree of injury to other parties if relief is granted.”
Hyperion, 15 F.C.C. Rcd. at 10203. Here, a stay merely maintains the status quo pending appeal.
If the D.C. Circuit ultimately upholds the Commission’s NEPA ruling, the only effect of the stay
would be to delay SpaceX’s ability to launch satellites pursuant to the Order by some number of
months. Any harm to SpaceX from that delay it is far outweighed by the irreparable injuries to
Viasat and the public discussed in the preceding section if a stay is denied—especially given the
high likelihood that the D.C. Circuit will vacate the Commission’s Order altogether.
In that respect, this case mirrors the stay the Commission issued in AT&T. There, the
62
See Launch Schedule, Spaceflight Now, available at https://spaceflightnow.com/launch-
schedule/ (last visited May 19, 2021).
63
See Trevor Mogg, Elon Musk Reveals When Starlink Internet Service Will Likely Exit Beta,
Digital Trends (Apr. 16, 2021), available at https://bit.ly/2T9xXn5 (last visited May 20, 2021).
23
Commission recognized that an interim “standstill order” would prevent the party opposing the
order, “for a time,” from offering particular services and receiving payments for those services.
AT&T, 13 F.C.C. Rcd. at 14,521. But the Commission explained that “[t]his delay in realizing
these benefits does not outweigh” the substantial irreparable injuries demonstrated by the party
seeking the stay. Id. The same principle applies here: A mere delay in SpaceX’s ability to
expand its commercial operations does not overcome the significant harm that Viasat and the
public will face by allowing that expansion to proceed without adequate environmental review.
Moreover, if this Court stays its Order, Viasat will work with the Commission and SpaceX to
Because there is a “compelling public interest in the enforcement of NEPA,” the D.C.
Circuit has held that, “when an action is being undertaken in violation of NEPA, there is a
presumption that injunctive relief should be granted against continuation of the action until the
agency brings itself into compliance”—a presumption that applies equally to stays of agency
action. 64 This presumption recognizes that “a project should not proceed, with its often
irreversible effect on the environment, until the possible adverse consequences are known”;
instead, agencies and courts must “stop projects that are in the process of affecting the
environment when the agency is in illegal ignorance of the consequences.” 65 The presumption in
favor of injunctive relief also reflects the fact that a stay “preserve[s] for the agency the widest
freedom of choice when it reconsiders its action after coming into compliance with NEPA, e.g.,
after finding out about the possible adverse environmental effects of its action.” Waiting until a
64
Realty Income Tr., 564 F.2d at 456; see Cuomo v. U.S. Nuclear Regulatory Comm’n, 772 F.2d
972, 976 (D.C. Cir. 1985) (applying presumption in the context of a stay request).
65
Realty Income Tr., 564 F.2d at 456.
24
project is well underway to comply with NEPA risks turning NEPA compliance into “an empty
gesture,” because “the momentum of additional work and investment” may “bind the agency to
Applying these principles, the public interest strongly favors a stay. As discussed above,
the D.C. Circuit is likely to hold that the Order fails to comply with NEPA. SpaceX’s launches
risk precisely the “irreversible effect on the environment” that, as the D.C. Circuit recognized,
warrant a stay. 67 And allowing SpaceX to launch satellites pursuant to the Order pending
judicial review would likely lead to the launch of hundreds—if not thousands—of additional
satellites before the D.C. Circuit could decide whether NEPA review is required. That would, in
turn, risk reducing any NEPA review ordered by the D.C. Circuit to “an empty gesture.” 68 The
public interest thus strongly favors a stay so that the D.C. Circuit can at least consider whether
CONCLUSION
The Commission should stay its Order until the D.C. Circuit decides whether the
66
Id. at 456, 457.
67
Id.
68
Id.
25
Dated: May 21, 2021 Respectfully submitted,
26
CERTIFICATE OF SERVICE
I, William M. Jay, hereby certify that on this 21st day of May, 2021, I caused to be served
a true copy of the foregoing Request for Stay Pending Judicial Review via first-class mail upon
the following:
Patricia Cooper
David Goldman
SPACE EXPLORATION TECHNOLOGIES CORP.
1155 F Street, N.W.
Suite 475
Washington, D.C. 20004
William Wiltshire
HARRIS, WILTSHIRE & GRANNIS LLP
1919 M Street, N.W.
Suite 800
Washington, D.C. 20036