Just barely within the borders of the United States, Boca Chica Beach is home to a plethora of species, including shorebirds. Neatly within its silt and sand, these birds nestle their eggs, relying on the Texas heat for incubation. Sadly, their ability to hatch has a competitor: SpaceX, the aerospace company launched by Elon Musk in 2002. With an already spotty reputation for allegedly violating the Clean Water Act and contaminating the region’s water supply, SpaceX has been denounced by environmental leaders. These concerns are likely to grow in future years, seeing as the company seeks to expand both its launch locations, and the frequency of its launches.  

Environmental groups are urging the Federal Aviation Administration (FAA) to impose stricter regulations on SpaceX to curb its planned expansions. A coalition of organizations–including the Center for Biological Diversity, American Bird Conservancy, Surfrider Foundation, Save RGV, (referring to the Rio Grande Valley), and The Carrizo/Comecrudo Nation of Texas, Inc.–has filed a formal complaint, alleging that the agency violated the National Environmental Policy Act (NEPA) by issuing a Commercial Space Transportation License for the Starship-Super Heavy Launch Program. This program aims to transport crew and cargo beyond Mars, utilizing rockets and launchpads crafted from stainless steel. While innovative in design, these rockets have seen persistent issues, including malfunctions with their booster landing, causing ongoing concerns that led to the filing. Although SpaceX is a private company, this complaint raises significant questions about the FAA’s regulatory responsibilities in overseeing corporate space ventures. Specifically, did the FAA violate NEPA (42 U.S.C. § 4332(2)(C)) by granting the license?

Enacted in 1970 by President Nixon, NEPA is the cornerstone of U.S. environmental legislation. It requires the FAA to assess the environmental impact of operations within U.S. airspace and prepare an Environmental Assessment (EA) outlining remedies for any non-significant environmental errors. When these effects are deemed to “significantly affec[t] the quality of the human environment” (Environmental Impact Statement, 40 C.F.R. § 1502.3), the FAA must draft a supplemental Environmental Impact Statement (EIS). Both reports mandate that feedback be gathered from the general public. 

The April 20, 2023 failed launch of SpaceX’s Super Heavy rocket, the incident which sparked the suit, illustrates the stakes. During the launch, the booster attached to the company’s Super Heavy rocket was designed to separate from the spacecraft and fall into the Pacific ocean as the rocket continued beyond the atmosphere. However, engine failures caused the two to fall while intertwined, forcing the SpaceX team to use the rocket’s termination system. Despite the explosion’s significant environmental impact, the FAA permitted SpaceX to conduct its own EA without gathering public input or producing the required EIS, both of which are in clear violation of NEPA. Subsequent investigations classified the incident as a “mishap” under 14 C.F.R § 401.7 paragraphs (2), (6), and (7). This designation solidifies that the explosion had a significant impact on the nearby human environment, requiring an EIS. As a result, the FAA should be scrutinized for its failure to fully comply with essential NEPA provisions. Furthermore, the agency’s actions accentuate the need for enhanced oversight of corporate space initiatives to ensure strict adherence to these environmental regulations. 

This case is not the first instance of the FAA facing accusations of violating NEPA. In Communities Against Runway Exp. v. FAA, the agency was accused of improperly selecting a contractor to complete the EIS for a proposed expansion to the Boston Logan International Airport. The community members behind the suit also claimed that no public opinion was solicited. However, the D.C. Circuit Court declined to review their petition, stating that even if the FAA had been negligent in choosing a contractor, it did not detract from the merit of the report. 

In another case, the town of Milton, Massachusetts sued the FAA for authorizing a new flight procedure for the same airport. They filed the suit under NEPA (42 U.S.C §§ 4321 – 4370m-11), citing noise pollution regulations in hopes of blocking the procedure’s implementation. Once again, the courts dismissed the case, this time concluding that Milton’s claims were insufficient  because they did not address the community as a whole. 

Regardless of the situation, a troubling pattern emerges: courts consistently side with the FAA, downplaying the impacts on communities (Communities), dismissing their standing (Milton), and largely ignoring public concerns about airspace issues. Under FAA Order 1050.1F § 6-1(b), the plaintiffs in Communities v. FAA had standing. Similarly, the plaintiffs in Milton v. Faa qualified for standing under Order 1050.1F § 11-5(b)(10). Both cases should have resulted in some accountability for the FAA, but instead, they established a budding trend. This trend is even more alarming given  that SpaceX’s CEO, Elon Musk, has close ties to the American government. The events surrounding the April 20th launch underscore SpaceX’s disregard for environmental law and the FAA’s to regulate accordingly, as evidenced by their violation of the Endangered Species Act. This Act mandates that federal agencies “insure that any action authorized…by such agency…is not likely to jeopardize the continued existence of any…threatened species or result in the destructive or adverse modification of habitat of such species” (16 U.S.C. § 1536(a)(2)). Under this same act, Piping Plovers, the species of shorebird native to Boca Chica, are currently listed as threatened. Thus, the FAA violated the law by failing to uphold these protections and prevent the SpaceX launch from occurring. 

By allowing SpaceX to conduct its own EA investigation despite its record of environmental violations, the agency violated many aspects of NEPA. They did not gather feedback violating Order 1050.1F § 6-2.2(b). Although EA investigations can be completed by outside contractors (Order 1050.1F § 2.a), the FAA still has to regulate all actions, such as ensuring there is no conflict of interest during the investigation (Order 1050.1F §2.f(2)), which they did not do, as detailed in the complaint. These circumstances highlight the urgent need for the courts to hold the FAA accountable for its negligence towards NEPA and to rule in favor of the environmental coalition. 

In summary, courts are not adequately overseeing the actions of the FAA, allowing environmental violations to go unchecked and ignoring the concerns of citizens. The FAA should be reprimanded, specifically under NEPA (42 U.S.C. § 4332(2)(C)), in regards to Center v. FAA. By doing so, there is hope that the agency will feel greater pressure to regulate airspace companies more rigorously. Thus, with the FAA held accountable under NEPA, SpaceX and other private space companies can also be held liable for their environmental violations. SpaceX cannot be entrusted with leading crucial environmental assessments on their missions.