XCOR Aerospace CEO Jeff Greason (left) shakes hands with FAA/AST deputy associate administrator George Nield as XCOR’s Randall Clague looks on after the company received its launch license during the Space Access ’04 conference April 23. (credit: J. Foust)

The trials and tribulations of licensing

by Jeff Foust
Monday, May 3, 2004

Steve Jobs, the charismatic CEO of Apple Computer, is known for finishing a keynote address, then hastily saying something to the effect of “oh, one more thing,” and then unveiling a new product that is actually the highlight of the speech. On April 23, George Nield, the deputy associate administrator of the FAA’s Office of Commercial Space Transportation (AST), followed in Jobs’ footsteps. After wrapping up a straightforward talk about AST’s activities at the Space Access ’04 conference in Phoenix, he shuffled his papers and was about ready to take questions from the audience.

“Oh, one more thing,” he said. “When I was getting ready to come on this trip I was putting some things together and I came across a piece of paper, a very rare document. In fact, there’s only one other similar document in existence. It’s a launch license for a reusable launch vehicle.” And with that, Nield presented Jeff Greason and Randall Clague, the CEO and government liaison, respectively, of XCOR Aerospace, with their long-awaited launch license.

That license, as well as one awarded three weeks earlier to Scaled Composites for its SpaceShipOne, is something of an existence proof for the RLV industry. After years of debates regarding how to jump over all the regulatory hurdles—and, indeed, whether it was even possible—two companies have demonstrated that the regulatory barriers can be surmounted. It certainly wasn’t easy: Nield alluded to “a lot of work: blood, sweat, and even some tears on the part of industry and government” involved in the licensing process. However, compared to a year ago, when XCOR and others, not to mention AST, were still trying to get a feel for what the licensing process entailed, a lot of progress has been made.

This doesn’t mean, though, that the licensing process is perfect. During the conference several speakers discussed issues with various aspects of the licensing process, including problems with environmental and liability issues that are often beyond the control of AST. At the same time, however, there is hope that legislation making its way through Congress now may provide some licensing relief to the suborbital RLV industry.

An 800-pound gorilla named NEPA

Obtaining a launch license from AST requires completing a five-part process: a policy review, payload review, safety review, environmental review, and financial responsibility review. In the past, a lot of attention has focused on the safety review: how to show that a particular vehicle is safe, particularly to the uninvolved public. However, the safety review is not necessarily the biggest obstacle to the licensing process.

“The 800-pound gorilla in the licensing process is the environmental stuff,” said Greason. He pointed to the National Environmental Policy Act (NEPA) of 1972, a law that requires every federal agency that takes any “major action” to assess that action to ensure there is no significant environmental impact. If there is an impact, a more detailed review called an environmental impact statement is required to quantify those impacts. In the case of AST, granting a launch license or a launch site license is considered a major action, and hence subject to NEPA.

For XCOR and Mojave Airport (which has separately applied for a launch site license, a process not yet completed), this meant developing a detailed assessment of the environmental impacts of flying RLVs out of that airport. This document, over 200 pages long, covers a vast array of potential environmental impacts, including reviews of issues like tsunamis and damage to “local navigable waterways” that, to an outside observer, would seem irrelevant to a site like Mojave located well inland in the arid high desert of southern California. “Every conceivable thing we could think of, and many things that are inconceivable, are assessed,” Greason concluded.

Fortunately, he said, XCOR and the airport did not have to start from scratch: they were able to build on studies ranging from those made for the X-33 program, which planned to fly from nearby Edwards Air Force Base, to a study the California Department of Transportation made as part of a highway bypass project in the area. Those reports were bundled together, and the airport then spent in the “low tens of thousands of dollars” to fill the remaining holes, an investment the airport hopes to recoup by using the study to support other projects as well.

Environmental issues aren’t just a problem for Mojave. John Carmack of Armadillo Aerospace described the delays he experienced trying to set up launch operations in Oklahoma, where the Oklahoma Space Industry Development Authority (OSIDA) had an environmental assessment ongoing that originally planned to cover several sites in the state. Delays in completing that assessment, as well as a decision by OSIDA to focus only on the former air force base at Burns Flat—a facility focused on horizontal takeoff and landing vehicles, not vertically-launched ones like Armadillo’s—forced Carmack to instead start dealing with White Sands in New Mexico, which has already gone through the environmental paperwork.

Each launch vehicle and launch site applying for a license through AST has to go through this process, at least for the time being. Greason held out hope that in the future that the RLV industry in general can obtain what is known as a “categorical exclusion”: a decision that a certain class of vehicles can never have a significant environmental impact, and thus do not need to be examined individually. “That’s the ultimate future of this industry,” he said.

Greason noted that every civilian expendable launch vehicle to date, such as Atlas and Delta, has received a finding of no significant impact, or FONSI, as has XCOR’s vehicle. “On the face of it one would come to suspect after some point that vehicles one-tenth the size [of Atlas and Delta], with non-toxic propellants, might also have a FONSI,” he said. “When enough things have a FONSI, you should get a categorical exclusion.” AST is pursing this now with the Council on Environmental Quality, the executive branch office that oversees how federal agencies implement NEPA. Granting one will take some time, though, since the council will need data from several vehicles to prove that these vehicles indeed have no significant impact.

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