SpaceX Could be Preparing to Sue FAA

Striking a new balance between regulator and innovator

SpaceX are the most proactive proponents of space development on the planet, despite intervention by US regulators that regularly disrupt their operation. For example, the FAA has delayed the latest launch of Starship at Boca Chica Texas, through failing to issue a timely permit.

“Licensing at this point for Starship is a critical path item for the Artemis program, and for our execution. Certainly looking forward into next year, we really need to operate that program at a higher cadence of flights. Six to eight month turns, that's not great for the program.” ~ anonymous SpaceX official

However, there’s a point at which SpaceX say enough-is-enough and that point seems to be rapidly approaching. Last week industry veteran Bill Gerstenmaier made a statement to congress that was scathing in its criticism of the FAA, who are responsible for years of delay to the Starship program. Elon Musk has echoed this dissatisfaction with the FAA, and repeatedly derided regulators on X.

“There is simply no way that humanity can become a spacefaring civilization without major regulatory reform. The current regulatory system is broken.” ~ Elon Musk

Unfortunately these words fell on deaf ears, in fact the FAA has actually become less responsive following the introduction of their Part 450 procedures which were meant to streamline commercial permitting. Something has to give, or Elon might easily lose patience and choose the nuclear option. SpaceX have a history of pushing back against perceived injustice, in 2004 they made a legal protest against NASA’s sole source contract with Kistler Aerospace, to develop an ISS cargo launch vehicle. Again in 2012 SpaceX sued the US Air Force for the right to compete with ULA. Notably they won favorable results in both cases, without adversely affecting their relationship with these key partners. Suing the FAA would present a different set of problems, yet they are far from insurmountable.

Case for SpaceX

SpaceX tests its new water deluge system with booster B9 ~ credit SpaceX

The main reason for the current delay stems from Starship’s new deluge system which is designed to reduce the sonic effects from its rocket exhaust, protecting the launch vehicle and local environment. It uses powerful water jets to cloak the exhaust, hence most of this fresh water evaporates immediately, although any liquid residue could drain into the surrounding mud flats. These flats are tidal, hence highly saline by nature, which suggests these outflows will effectively become sea water. Adding sea water to these mud flats should have no appreciable affect considering it happens twice a day due to tides. In fact any attempt by the FAA to convince otherwise would likely descend into farce. Given the facts, there seems little need for SpaceX to invest in costly mitigation measures. The company is already projected to spend $2bn developing Starship this year and arguably they’ll lose another billion each year due to deferred business revenue, which means they lose ~$250m a month to delays. SpaceX could easily attribute this loss to FAA actions (or inaction), considering the latest Starship was ready to launch in mid-September, according to Bill Gerstenmaier. The FAA has made valiant efforts to deflect blame onto the Fish and Wildlife Service (FWS) for any permit delay but the FAA are the permitting authority so they carry the ultimate responsibility.

Recently SpaceX opted to become codefendants with the FAA in a case against conservationists, who also seek to delay Starship launches from Texas. This implies SpaceX lawyers are already fully conversant with the Starship situation and familiar with the FAA lawyer’s capabilities and tactics. So if Elon decides to pull the trigger...the case could be underway in weeks not years. Considering SpaceX’s ongoing losses and investments in the local area, they should have little trouble finding a sympathetic court to hear the case in Texas.

No doubt the FAA are leveraging this Starship issue in an attempt to increase their budget and extend their bureaucratic reach – but this could gain short shrift from any judge in Texas. SpaceX are two for two at the moment, and arguably hold the Indian sign over FAA lawyers who originally opposed SpaceX joining the conservationist case but subsequently lost that motion. Elon Musk stated he only wants to employ “hardcore streetfighters” for the legal team at Tesla and unlikely to lower his standards for SpaceX. Despite appearances things don’t look good for the FAA if they attempt to holdout. No doubt they would prefer to settle the conservationist case first because that validates the legality of their issuing a launch permit. But the FAA’s preference for such delays is far from a legal defense. Their best argument is: “we must perform due diligence in every case,” except they have not performed their statutory function, at least in a timely fashion.

Big Picture

Commercial space transport is an emerging sector, which implies they need to learn fast to turn it into a sustainable business. SpaceX chose a seldom visited site to develop their space transport Starship, somewhere to build and test freely, without the burdensome bureaucracy and undue interference from competitors at the Cape. Somehow this untoward interference has pursued them to South Texas, culminating in the FAA’s decision to engage in what is effectively their third environmental review of this site. What’s needed for SpaceX, NASA and the US Space Force to flourish is for the FAA to issue a Space Port license for experimental work at Boca Chica then step back. Anything else risks smothering this crucial effort in the cradle, such green shoots can’t be overshadowed by the dark clouds of bureaucracy. The FAA is an airspace authority, who attempt to apply the regulations for a mature air industry to the emerging space sector, despite their dissimilarity and differing needs. Realistically a separate space agency should be spun off to oversee commercial activity and support it through to maturation. Given the continued expansion into space, a new oversight agency seems certain to appear sooner or later – better sooner for everyone’s sake. Once the space sector is established it could add trillions to the US economy, not to mention its strategic and existential significance.

In Conclusion

SpaceX appears to have a strong case against the FAA’s unwarranted delays and mendacious interference. Right now SpaceX’s legal pit-bulls must be slavering to sink their teeth into their legal counterparts. Of course, the FAA might appreciate storm clouds are gathering and find their rubber stamp from wherever it’s hidden, to save themselves a great deal of pain and embarrassment. Given we are going into an election year, the prospects for an entirely new agency to oversee space commerce seems unlikely. More likely the administration will have a quiet word to make this embarrassing situation go away, before it becomes a campaign issue. Hence I foresee a new permit will appear before the end of the year, heralding a more supportive era for all commercial space enterprises, and a brighter future for humanity.

Chris Prophet