Viasat, a Starlink competitor and multibillion-dollar provider of satellite services to rural areas, attempted to challenge this influx of Starlink satellites by demanding stricter environmental oversight through the FCC’s licensing process.8 Specifically, Viasat argued these satellite systems pose environmental harm to the orbital environment that, in turn, will directly harm Viasat’s operations. Viasat has challenged multiple orders granted by the FCC that allowed Starlink satellites to operate.9 Viasat brought suit asking for an injunction and, subsequently, an appeal when the injunction was denied on the most recent FCC order allowing Starlink to decrease the orbit for a subset of the original satellites.10 The FCC asserted that Viasat has no injury-in-fact to assert the claim; the satellites are covered in a categorical exclusion through National Environmental Policy Act (NEPA), an act created to ensure Federal Agencies considered the environmental repercussions of their actions, and therefore no further review is necessary; and constellations do not harm the environment enough to warrant additional review.11 This Article reviews the history of Viasat, Inc. v. FCC.12 Ultimately, Viasat lost the appeal due to a lack of standing. However, this Article will focus on why the FCC should consider adopting a NEPA review for satellites into its regulatory scheme because both Viasat and the FCC still concede that satellites “may” pose a significant effect on the environment. Thus, to avoid future litigation from a party with standing, the FCC should expand its satellite orbital debris mitigation guidelines to include a preemptive NEPA review. Part II of this Article introduces some of the environmental concerns that arise with the advent of satellite technologies, the regulations surrounding commercial satellite regulations, including the licensing scheme, influencing treaties and legislation, and an outline of the National Environmental Policy Act (NEPA) as it applies to the Federal Communications Act (FCA). Part II also includes an overview and analysis of the arguments contributing to Viasat, Inc. v. FCC. Part III presents an analysis of the environmental harms pertinent to FCC licensing. Part IV presents recommendations and an analysis of how the FCC could proactively incorporate environmental review into its regulatory scheme to prevent future litigation. Part V concludes that the FCC should incorporate a NEPA review process into the orbital debris mitigation guidelines, as this process would preempt future litigation and address the risks of this growing technology while not posing an undue regulatory burden on operators.
A Sky Full of Stars: Should Viasat, Inc. v. FCC Change the Agency’s Treatment of Satellites as a Categorical Exclusion Under the National Environmental Policy Act?,
101 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol101/iss4/7