Emerging Private Lawsuits for Damages from Falling Space Debris

   Emerging Private Lawsuits for Damages from Falling Space Debris

            When authorizing the dumping of spent nickel-hydrogen batteries from the International Space (https://images.nasa.gov/details/iss064e041512) NASA’s managers expected all of the 5800 pounds to vaporize in a few years, after picking up speed and encountering atmospheric friction before landfall (https://www.npr.org/2024/06/23/nx-s1-5016923/space-debris-nasa-florida-home-lawsuit). Surprisingly, 1.6 pounds of the space debris survived the 260 mile high speed fall, back to earth.  The metal object damaged the roof of a private residence in Naples, Florida (https://www.clickorlando.com/news/local/2024/06/23/florida-family-sues-nasa-after-piece-of-space-station-crashed-through-homes-roof/).  Having no likely recourse to recover repair costs from a standard insurance policy, the homeowners lawyered up to file a claim in federal court (https://www.cshlaw.com/news/mica-nguyen-worthy-submits-first-of-its-kind-claim-to-nasa-seeking-recovery-from-damages-sustained-from-space-debris/).

             To its credit, NASA acknowledged having owned and jettisoned the material, thereby removing one of the litigation defense strategies it could have used to deny any financial responsibility (https://blogs.nasa.gov/spacestation/2024/04/15/nasa-completes-analysis-of-recovered-space-object/).  However, NASA will have plenty of other legal defenses if it opts not to pay a small sum to make the problem go away.

             Space debris, usually weighing far more than a few pounds, often arrives partially intact. Because about 71% of earth is salt water, (https://education.nationalgeographic.org/resource/ocean/), the odds favor “no harm, no foul.” In November, 2022, a 23-ton Chinese used rocket launch stage fell harmlessly into the Pacific Ocean (See China Lucks Out Again as Out-of-Control Rocket Booster Falls in the Pacific; https://www.nytimes.com/2022/11/04/science/china-rocket-debris.html).

             The sharp increase in space launches, particularly ones installing satellites in low earth orbit, 200-1200 miles above, sharply increases the odds for future collisions and space debris landfalls.  While global space treaties establish a right of recovery for damages caused in space, no enforcement mechanism exists.  Additionally, the treaties do not recognize private parties both in terms of having responsibility for causing harm and having a right to seek damages when harmed by a space object.  NASA also might argue the space treaties have no applicability for domestic disputes when both parties reside in the same country.

             Even as it removes the evidentiary question of who and what caused the damage, NASA may assert that a private, U.S. citizen has no legal basis (standing) to recover the cost of the roof repair.  Sovereign immunity insulates government agencies from lawsuits.  NASA might even claim that natural (e.g., meteorites) and man-made, space debris regularly fall to earth and private property owners have to bear the risk—a sort of force majeure.  Bad things happen through no fault of either party.

             Although I doubt it, this first of its kind private litigation may establish the basis for private recovery by a U.S. citizen for harm occurring domestically.  Congress may enact legislation requiring insurance by private ventures and specify a conditional private right of legal action against federal government agencies, such as NASA.  On the other hand, states with growing space commerce, such as space tourism, may explicitly exempt or cap liability, as recently done in Florida (https://www.mcgill.ca/iasl/article/florida-moves-limit-spaceflight-liability).

             I think NASA management will try to prevent this case from establishing a precedent.  It can do this by offering compensation outside the court room in exchange for non-disclosure.