By Tyler Conte
In November 2015, the U.S. Commercial Space Launch Competitiveness Act (commonly known as the SPACE Act) became federal law. For private aerospace companies, particularly those with the goal of eventually using or supplying resources obtained in outer space, the most promising element of the law is the creation of a property right in space resources for U.S. persons who obtain such resources. This property right was heavily lobbied for by the budding asteroid mining industry, which plans to recover and sell resources found on the asteroids in the inner solar system. For the first time, a national government has incentivized its citizens to pursue the rich resources of outer space by granting them full title to any resources they take possession of.
While the SPACE Act’s creation of a property right in space resources presents interesting international law issues involving the United States’ adherence to the requirements of the Outer Space Treaty and other Soviet-era treaties, this Article focuses on whether the incentives created by the SPACE Act could motivate the first resource-producing entity on Mars to obtain a significant portion—or potentially all—of the water and carbon dioxide on Mars before a viable competitor could establish itself. The establishment of a dominant producer of natural resources on Mars would allow such producer to charge monopoly prices to second comers whose missions would require the consumption of water and carbon dioxide acquired on the Martian surface or, alternatively and perhaps more importantly, to price any competitor out of this market.
If this scenario were to play out, the hypothetical firstcomer could effectively control access to the planet through the prices it charges to other entities that attempt to establish permanent settlements on the planet and that do not have feasible, alternative sources of water and carbon dioxide. In a worst-case scenario, the firstcomer could refuse to sell to second comers for any competitive, political, or other conceivable reason, thereby shutting off second comers from these critical resources. A private company exercising singular control over access to resources on Mars, and therefore to the planet itself, would be an unintended result of the SPACE Act, unlikely to be supported in the future. This Article explores alternative methods of allocating resources on Mars that would allow the firstcomer to reap a substantial return on its investment from being the first to settle the planet without preventing subsequent entities from competing.
While this Article suggests qualifying the SPACE Act’s property rule by adding a new Martian Riparian Rights Rule, its purpose is not to propose the optimal regulatory system for the allocation of resources on Mars. Rather, its goal is to draw attention to the potentially harmful incentives created by the current rule and to spark a discussion on a method of appropriation that better protects the benefits of Mars for all humankind. Such a result would better serve the pro-competitive purpose of the SPACE Act and ensure that Earth’s governments do not enable a private entity to unilaterally control access to the benefits of the most substantial property expansion in human history.
Tyler Conte, Property Rules for Martian Resources: How the SPACE Act of 2015 Increases the Likelihood of a Single Entity Controlling Access to Mars, 84 J. Air L. & Com. 187 (2019).