If you own land in the United States, do you own the air above it, too? Justine Paradis, Senior Producer at Outside/In from NHPR brings us the airy truth of property rights in air and space in this special collaboration.
The answer will take us from Ancient Rome (as it occasionally does) to the United States courts, from a world when air travel was science fiction to the world where we know there are valuable resources on the moon... and we all want them.
Guests for this episode are Colin Jerolmack, Michael Heller, George Anthony Long, and Deondre Smiles.
Transcript
Nate Hegyi: [00:00:00] I'm Nate Hegyi, joined today by Nick Capodice. And Hannah Mccarthy.
Hannah McCarthy: [00:00:03] Hello.
Nick Capodice: [00:00:03] Hello, Nate.
Nate Hegyi: [00:00:04] Hi. So our episode begins with a tale which we might call the chicken and the airplane.
Nick Capodice: [00:00:14] Well, this sounds a little bit like a fable. Is the chicken going to get a thorn stuck in its paw?
Nate Hegyi: [00:00:19] I don't think chickens have paws. It's talent. Like I liked Paul better. It's 1942, well into the Second World War. It's been five years since Amelia Earhart disappeared into the Pacific Ocean.
Hannah McCarthy: [00:00:33] Okay. So airplanes are still a relatively new invention, but they're not brand new. You're not going to necessarily think it's like a dragon in the sky.
Nate Hegyi: [00:00:42] Exactly. So this guy, Thomas Lee Crosby, is this chicken farmer in South Carolina. He lives less than half a mile from a municipal airport, which wasn't a big deal until the US military leased the airport in 1942. And so this [00:01:00] is wartime. So we've got heavy bombers, transports, fighter planes. They're taking off. They're landing oftentimes right over Cosby's farm. And they are flying like low, like barely missing the tops of the trees.
Nick Capodice: [00:01:14] Wow, that sounds unlivable.
Nate Hegyi: [00:01:16] Well, yes, His family, they're losing sleep and his chickens are so freaked out by the lights and the noise that when the planes fly over. They literally throw themselves into the walls in fright and die.
Nick Capodice: [00:01:34] They die in fright.
Nate Hegyi: [00:01:36] Yeah. 150 of his chickens die this way. And eventually Cosby loses his poultry business. And so he decides to sue the United States. And he argues this. He says, I own this property, including the air right above my house. And you, the US military, you have trespassed. So what do you guys think? Do you think he's right, folks?
Nick Capodice: [00:01:56] Well, let me just say, I am fascinated to learn the answer to this [00:02:00] because we did an episode on whether or not Santa is a criminal. And a lot of that had to do with, you know, who controls or who owns the airspace above your home, above your property, what is trespassing. So I'm desperate to learn this.
Nate Hegyi: [00:02:13] Well, that is that is the question here. Who owns the skies? I'm Nate Hagee, host of the HPR podcast Outside in a show about the natural world and how we use it.
Hannah McCarthy: [00:02:29] And I am Hannah McCarthy, and Nick Capodice and I are the co-hosts of Civics 101. Also from NHPR, ours is a podcast about how our democracy works.
Nick Capodice: [00:02:40] Yeah, or how it's supposed to work most of the time.
Nate Hegyi: [00:02:43] Today, we're teaming up to talk about a subject that connects both of our shows. Property from just above the ground to high in the sky, all the way to the dang moon, where nations are fighting over who gets to do what in outer space. Outside and producer Justine Paradise answered this one for us. So [00:03:00] I'm going to step out and let her take it from here. Make it so.
Justine Paradis: [00:03:11] So I want to start with a 1500 year old principle. Today, it's a principle about private property rights, and it comes from medieval Rome. It's called ad coelum. And it goes like this. Whoever owns the soil, it is theirs. Up to heaven and down to hell.
Nick Capodice: [00:03:31] Up to heaven and down to hell.
Justine Paradis: [00:03:33] Indeed. And by the way, ad coelum, I have heard this pronounced different ways. I don't speak Latin, but we're going to go with ad coelum. This was a principle articulated by a medieval Roman jurist, then absorbed into English common law. And then in the United States, English common law got adopted by many states, at least where it was, quote, not repugnant to the Constitution or laws of this state. Can you think of something that might be repugnant [00:04:00] to these United States of America?
Nick Capodice: [00:04:02] I sure can, Justine. Kings.
Colin Jerolmack: [00:04:05] The Founding Fathers were obsessed with preventing tyranny of government.
Justine Paradis: [00:04:09] This is Colin Jerolmack. Colin is a professor of sociology and environmental studies at NYU. And he explained to me that Thomas Jefferson especially saw owning property as a big part of democracy.
Colin Jerolmack: [00:04:21] He envisioned a democracy meaning that every sovereign citizen owns land and owns enough land that they are self-sufficient. And the idea of that was if you are self-sufficient, then you don't need the government to give you certain basic needs. And so land sovereignty was basically a way of checking government authority. And the Jeffersonian idea, which really won out, I should say won out for white males, was that you are really not a citizen if you don't own land.
Nick Capodice: [00:04:49] Right. And to reiterate what we've said in several episodes at the beginning of America's history, only white males with property could vote. And this idea [00:05:00] won the day, so to speak.
Justine Paradis: [00:05:02] Yeah. And so strong protections for private property were really a founding principle of this country. But the point is, for this particular story, and part of the reason why this was such a big deal here is because of how other countries had previously approached private property specifically of up to heaven and down to hell and that down to hell part. What we're really talking about is mineral rights.
Colin Jerolmack: [00:05:25] In every other country, more or less, to varying degrees. The government owns the mineral rights and so you own the surface. But if the government wants to mine, the government makes that decision and then the individual doesn't, you know, doesn't have a choice and the individual does not directly profit from that.
Justine Paradis: [00:05:43] In England, landowners did have mineral rights except for one maybe repugnant detail.
Colin Jerolmack: [00:05:49] There was a huge caveat to mineral rights ownership, which is that the Crown retained pretty much every valuable mineral. So you technically own the subsurface, but if there was oil [00:06:00] or silver or gold or diamonds in that subsurface and you obtain it, the government owned that.
Nick Capodice: [00:06:07] Aha. Oh, that's interesting. So the English crown gets your diamonds naturally.
Justine Paradis: [00:06:12] Whereas in America, if a company wants the mineral rights to your land, like to frack, for instance, they have to ask permission and probably pay you for the right to frack that methane. And that is why Colin's book about fracking is called.
Colin Jerolmack: [00:06:27] Up to Heaven and Down to Hell.
Nick Capodice: [00:06:29] Oh, there it is.
Colin Jerolmack: [00:06:30] The so called Founding Fathers. This was a very conscious decision. America is the only country in the world where the majority of land ownership, private land ownership, includes the mineral rights and the air above.
Hannah McCarthy: [00:06:44] And the air above.
Justine Paradis: [00:06:45] So let's turn our attention to the skies. This country boasts a rich history of property disputes, both large and small, over the 1800s and early 1900s. And for a while, cases [00:07:00] concerning ADD column are looking at disputes much closer to the ground than the heavens like overhanging branches. For example, the courts say ad coelum that's a trespass and a nuisance. Protruding eaves, cornices, windows, roofs, walls. You can't use them to get around a property line.
Nick Capodice: [00:07:19] All right. So you can't build your way over someone else's land. Their property is theirs.
Justine Paradis: [00:07:24] You cannot that's a trespass according to case law. You don't even have to be touching the ground in order to have trespassed. In 1925, Montana's Supreme Court held that shooting a duck over a neighbor's land is trespassing into their airspace, even though the trespass is temporary, even if you miss even if it does, no damage. In Iowa in 1902, there was a case disputing an arm extended over a property line to retrieve their own ladder.
Hannah McCarthy: [00:07:53] A guy reached over to grab his ladder. It strikes me that maybe there were some other issues going [00:08:00] on. If there is a case about that.
Justine Paradis: [00:08:02] These particular neighbors did not have a peaceful relationship in addition to the arm in question, bricks and, quote, opprobrium, epithets frequently cross the fence. And when these families went to court to settle the question of this arm extended in malice. Ad coelum.
Nick Capodice: [00:08:19] Oh.
Justine Paradis: [00:08:19] As one judge in Montana observed in 1925, quote, It seems to be the consensus of the holdings, the courts in this country that airspace, at least near the ground, is almost as inviolable as the soil itself. The reasoning in many of these rulings is that the landowner has a right for use and enjoyment of the land. In the case of airspace, that might even mean light and air. In other words, the enjoyment of a nice view. Do you remember how you can lease or sell the mineral rights below the ground on your property? Yeah. Yeah. So the [00:09:00] same is true of air rights. Let's take the example of New York City.
Nick Capodice: [00:09:04] All right? Now we're cooking.
Michael Heller: [00:09:05] The rules are actually quite complicated for how tall you can build and for where you can transfer those air rights to and from.
Justine Paradis: [00:09:11] This is Michael Heller. He's a professor of property law at Columbia University and coauthor of a book called Mine How the Hidden Rules of Ownership Control Our Lives.
Michael Heller: [00:09:21] In New York and many states, air rights are a piece of property, just like a cup of coffee that can be bought and sold and traded and mortgaged. And they're understood by real estate developers as property just as solid in some sense as the ground on which they hover above.
Hannah McCarthy: [00:09:37] This doesn't surprise me at all, having lived in New York, actually.
Justine Paradis: [00:09:41] Yeah.
Hannah McCarthy: [00:09:42] Oh, yeah. I mean, space is so precious. So precious. A parking spot costs like 800 bucks a month, you know?
Nick Capodice: [00:09:49] So I used to give walking tours in New York, and I would see these really tall buildings in sort of much lower neighborhoods. And I was always like, How could they build that tall when everyone else is clearly forbidden [00:10:00] to stop above five floors? And I found out that they could just buy the air from other buildings and put it on top of their own. And it blew my mind.
Justine Paradis: [00:10:09] Yeah. And that's how developers get around these height restrictions in certain neighborhoods. And there's, of course, a big money colored reason they might be motivated to do that.
Michael Heller: [00:10:18] Each story that you go up in New York is increasingly valuable. It's not just one more story, but it's 1.5 x or two x. The tallest unblockable views have an enormous premium, so it's that premium which actually helps turbocharge the air rights market in New York City.
Justine Paradis: [00:10:45] So backing up a bit, going back to our story of ad coelum. Courts have been ruling in favor of this doctrine for over a century. But this idea of up to heaven that's challenged when something happens that the Romans maybe [00:11:00] did not anticipate.
Hannah McCarthy: [00:11:02] Oh, flight. Right?
Nick Capodice: [00:11:03] Yeah.
Nick Capodice: [00:11:04] Sky Dragon.
Michael Heller: [00:11:07] Airplanes caused problems that literally at all different levels. If the US were to have decided which was possible 100 years ago, that the ADD column doctrine actually did continue all the way up until we had outer space, then air travel wouldn't have been possible, right? It would have taken too many negotiations to have a single airway from New Hampshire to New York. That would have been an impossible flight.
Justine Paradis: [00:11:31] So by the 1920s, the U.S. government is trying to start to put air traffic regulations in place like the 1926 Air Commerce Act passed by Congress, which authorized the secretary of Commerce to establish an altitude. So an actual number that basically put a cap on the rights ofad coelum.
Nate Hegyi: [00:11:51] There were different legal routes that we could have used, but the one that we settled on was to say that as a legislative matter above 1000 feet [00:12:00] simply isn't your space to clarify.
Justine Paradis: [00:12:02] That's a thousand feet over cities and towns and settled areas. It drops to 500 feet everywhere else. But this act failed to address a very important part of Flight two actually taking off and landing. Which brings us back. To our chicken farmer. So where are we in this story? Hannah.
Hannah McCarthy: [00:12:26] All right. We started out with the chicken farmer, Thomas Cosby. He sued the United States. He said, you know, you completely ruined my poultry farm. My chickens died of fright. You owe me money. And the United States says, no, we can use the airspace. You can't. You can't come at us for that. That's perfectly legal.
Justine Paradis: [00:12:43] Yes. And so Cosby, again, who lives right next to an airport where U.S. military planes are gliding in way lower than 500 feet. His case is based on an important part of the constitution.
Michael Heller: [00:12:58] The chicken farmers protection was grounded [00:13:00] in the Fifth Amendment of the US Constitution. It was grounded in what's called the takings clause.
Justine Paradis: [00:13:05] All right. You two are journalists on that American history beat. Can you give us some insight here, Nick? What is the takings clause of the Fifth Amendment?
Nick Capodice: [00:13:13] So basically, the takings clause is kind of tied to what we think of as eminent domain. Basically, the government can't take something from you for its own use without giving you compensation for it. You know, the government can say, hey, we need this land or we need this thing. We're going to take it. But they have to give something in return.
Justine Paradis: [00:13:35] And here's how the Supreme Court ruled. It said by flying their planes in this manner, the United States had effectively confiscated Cosby's property. And according to the Fifth Amendment, he was due just compensation, effectively confiscated.
Hannah McCarthy: [00:13:47] That is fascinating. I love law. So he was due money?
Justine Paradis: [00:13:51] Yeah. He got 2000 bucks at the time. That was the kind of money that could buy a house. The Supreme Court wrote in the majority opinion that they must rule this way because [00:14:00] if they did not, quote, the owner's right to possess and exploit, the land would be destroyed. But even though they ruled that Cosby was due damages, the court also explicitly wrote that ad column, The idea that those land rights go infinitely upward. That has no place in the modern world.
Nick Capodice: [00:14:21] So, Justine, the Supreme Court's ruling says that legislation that had been on the books, on a basic level, it is constitutional to make the air a public highway. You don't you, as an American, do not get enjoyment of your property all the way to heaven.
Justine Paradis: [00:14:40] You got it.
Nick Capodice: [00:14:50] So this was in the 1940s, Justine.
Justine Paradis: [00:14:53] Yes.
Nick Capodice: [00:14:54] It's so interesting that so many years later we kind of are coming back to where we started with our founding with this [00:15:00] principle, you know, which made it to life, liberty and the pursuit of happiness. But it was based on an idea of life, liberty and the pursuit of property. That's where we got that expression. So we're coming back to our founders kind of principles of property being the thing that is yours in the United States.
Justine Paradis: [00:15:17] Yeah.
Hannah McCarthy: [00:15:17] Yeah, But of course, you know, it's not that straightforward. Like, if you look back to what our framers were doing there, they're tying citizenship and property together, but they're barring so many people from that mechanism. Right. Enslaved people, women who were themselves considered property. And then later on in American history, the government continues to block people from owning property, especially black people in America. I mean, this carried throughout the 20th century. So it's really not that pure.
Justine Paradis: [00:15:46] Yeah, absolutely. I mean, I think when I asked Colin, Gerald Mack, that professor who wrote the book on fracking earlier, you know, do you think that this worked? Do you think that property helping us be more free as a society, as a nation, did that work? And [00:16:00] he was like, absolutely not. You know, so I'm very happy that the Declaration of Independence says life, liberty and the pursuit of happiness. You know what I mean?
Hannah McCarthy: [00:16:09] I think it is hilarious that the founders saw life, liberty and the pursuit of property and they just sort of took well crossed that one out. They agreed. You know, let's not say it like that, thank goodness. Or that's how the story goes anyway.
Justine Paradis: [00:16:35] All right. So that's the sky's in the sense of the earthly atmosphere. Next up.
Tim Curry: [00:16:40] I'm escaping to the one place that hasn't been corrupted by capitalism. Space.
Justine Paradis: [00:16:52] That's after the break.
Hannah McCarthy: [00:17:07] Before [00:17:00] the break. This is just a friendly reminder that although we tried to pack as much as we can into Civics 101 episodes and invite our friends from shows like Outside/In to give you even more. There's a lot that doesn't make it into this show. If you want to hear about everything else we research that ends up on the cutting room floor, we have a place for that. It's called the Extra Credit Newsletter. It is super easy to sign up at Civics101podcast.org and it's one of those, in my mind, fairly rare fun things that you find in your inbox. It's free. It's genuinely a pleasure to read and there's just so much I need to tell you about. Again, you can sign up at Civics101podcast.org. We're back. You're listening to Civics 101. And today's episode [00:18:00] is very special because it's a collaboration with our friends at Outside In. And just before the break, producer Justine Paradis was telling us all about the rules and regulations that govern who owns the skies. And now we're going even higher to the final frontier.
Nick Capodice: [00:18:18] Justine, have you heard my Worf impression?
Justine Paradis: [00:18:21] No.
Nick Capodice: [00:18:22] It's basically just me blowing out of my nose going, sir. That's all I got. Sir.
Justine Paradis: [00:18:32] All right, we're back. Nick Capodice. Hannah McCarthy of Civics 101.Hello.
Nick Capodice: [00:18:36] Hello.
Hannah McCarthy: [00:18:37] Hello.
Justine Paradis: [00:18:39] A few minutes ago, we talked about the altitude where navigable airspace begins, according to the United States. There are actual numbers here. Do you remember?
Nick Capodice: [00:18:48] Yes, they do. Basically 500 feet or a thousand feet, depending on if you're in like a city or a town or whatever.
Hannah McCarthy: [00:18:54] But what about where outer space begins? You know, when does it stop being sky and [00:19:00] start being space?
Justine Paradis: [00:19:02] Glad you. Asked.
George Anthony Long: [00:19:03] Well, that's an unresolved question.
Hannah McCarthy: [00:19:05] Of course it is.
Justine Paradis: [00:19:06] Of course. It's an unresolved question. By the way, this is George Anthony Long. George is an attorney. And these days he specializes in space law.
Nick Capodice: [00:19:14] Space law.
Justine Paradis: [00:19:15] Space law. He did need to go back to school to get an extra special law degree for it. So I reached out to George because I wanted to understand how property and territory work in space to ask the question who owns the sky beyond Earth? But yeah, George says there is no consensus in the international community about where air space ends and outer space begins.
George Anthony Long: [00:19:38] To be true. Space is just one of those areas. You sort of at the certain point, you know, when you're there. But the whole point is when you get there, you know, what point is that you arrive there? That's where it's unclear.
Nick Capodice: [00:19:51] All right. Well, this is an echo of a famous Supreme Court statement in an obscenity case in which Justice Potter Stewart said, quote, I'll know it [00:20:00] when I see it. So we've got kind of this unexpected overlap between space and obscene material here. Quick and strange aside, Justine, I read once that Supreme Court justices in the seventies used to watch obscene material. They'd have like a a movie get together.
Justine Paradis: [00:20:18] All of the Supreme Court bros would get together.
Nick Capodice: [00:20:21] Yeah, And watch some. Yep.
Justine Paradis: [00:20:24] All right.
Nick Capodice: [00:20:24] I think they even called it movie day.
Justine Paradis: [00:20:26] What, are you kidding me?
Nick Capodice: [00:20:27] Nope. True story.
Justine Paradis: [00:20:34] So space law is governed by just a handful of treaties through the United Nations.
George Anthony Long: [00:20:40] Generally, there are five international space law treaties.
Justine Paradis: [00:20:44] The first and biggest one is the Outer Space Treaty of 1967.
George Anthony Long: [00:20:48] That is the cornerstone of space law.
Justine Paradis: [00:20:52] And I think the major thing to understand is that the context for this treaty was the Cold War, and among the principal stakeholders [00:21:00] were the Soviet Union and the United States. It was just ten years after the Soviet Union had launched the first manmade satellite into space.
Nick Capodice: [00:21:08] Yeah. Sputnik. Two years before the United States put a man on the moon. So we're mid space race here.
Archival: [00:21:17] Our objective is not to continue the Cold War, but to end it. We have signed an agreement, the United Nations, on the peaceful uses of outer space.
Justine Paradis: [00:21:34] The first article of the Outer Space treaty says, well, actually, do one want. You want to read this?
Hannah McCarthy: [00:21:41] Sure. The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province [00:22:00] of all mankind. What a nice notion. When was the last time you heard something like that? Wowsers.
Nick Capodice: [00:22:08] This sounds like Antarctica, actually.
Justine Paradis: [00:22:10] I think it is very similar to Antarctica and for similar reasons, because we didn't want to be fighting a war down at the South Pole. So we were saying, okay, let's just agree not to do that. Let's not go there, because that would that would be awful, you know? The treaty also says states can't build military stations in space. They can't occupy the moon. We can't put nukes in orbit or anywhere in space. Basically, it says we agree that we go forth in peace.
Hannah McCarthy: [00:22:37] Okay. But as Nick and I recently learned in an episode about the Space Force, which is specifically designed to protect stuff in space, it's not that straightforward, right? Like space is filled with satellites that help defense systems. And we are certainly looking toward the future as potentially having some conflict having to do with space.
Nick Capodice: [00:22:57] Yeah, the reality isn't as high minded [00:23:00] as this go forth and peace language aspires it to be.
Justine Paradis: [00:23:03] I think when you hear the old speeches of JFK where he says, you know, essentially let's go forth in peace, you can kind of hear the threat in his voice.
John F. Kennedy: [00:23:11] All of us salute the brave cosmonauts of the Soviet Union. The new horizons of outer space must not be riven by the old, bitter concepts of imperialism and sovereign claims.
Justine Paradis: [00:23:32] Other treaties of that era dealt with the more practical matters of space law. And in many ways, these treaties mirror ideas in maritime law. So the Law of the Sea, one way it's similar is that you have an obligation to help other ships in distress, just as you would in most cases at sea. But one way it's different from the sea is that objects can also crash to earth. It's like, what happens if a satellite lands on someone's house? Here's George. [00:24:00]
George Anthony Long: [00:24:00] Damage on the face of the Earth is absolute liability. So there is no mitigation of saying somebody else is at fault. It really doesn't matter. The launching state or states are absolutely liable. But if if an accident happens in space, such as if two space objects collide, then it's fault liability and that somewhat equivalent to your fault liability for regular traffic accidents.
Nick Capodice: [00:24:30] So this is like the space law version of the fine print of a car insurance policy.
Justine Paradis: [00:24:35] Another difference from maritime law is the law of salvage. Do you know this one? At least at sea?
Hannah McCarthy: [00:24:40] I know that when I play my favorite video game, I can pick up anything in the sea that I want, Justine.
Justine Paradis: [00:24:46] There you go.
Hannah McCarthy: [00:24:47] If it's out there, I'm allowed to pick the flotsam. Right.
Nick Capodice: [00:24:50] I thought that if you, you know, dug something up from the ocean, you were obligated to return it from whence it came.
Justine Paradis: [00:24:57] You get a reward?
Nick Capodice: [00:24:58] Yeah.
Nick Capodice: [00:24:59] It's kind of [00:25:00] like our Fifth Amendment stuff again. You get compensation for it.
Justine Paradis: [00:25:03] Not so in space.
George Anthony Long: [00:25:03] The Outer space treaty makes the ownership of a space object and any component part of the space object. The ownership is perpetual. You never lose it.
Justine Paradis: [00:25:16] And that becomes a problem because nobody can clean up anybody else's broken satellites. So all this space junk is just building up. Finally, like maritime law, there's a treaty called the Registration Convention.
George Anthony Long: [00:25:27] Which sort of suggests that countries register space objects that they launch with the United Nations.
Justine Paradis: [00:25:36] But the operative word here is suggests.
George Anthony Long: [00:25:39] It is not a requirement and it is not always done.
Justine Paradis: [00:25:44] I mean, I don't know. Can you think of an instance in which a country might be disinclined to register their space objects?
Nick Capodice: [00:25:49] Yeah, Like if it's a secret spy satellite?
Hannah McCarthy: [00:25:51] I don't think we should name any countries here. But I know what we're all thinking.
Justine Paradis: [00:25:55] I know what we're thinking. Spy satellite? Yeah. The International Space [00:26:00] Station is kind of a special case in all of.
George Anthony Long: [00:26:02] This International Space Station as a orbiting platform with different sections by each partner to the space station has its own section. United States has its portion of space station, and United States law applies in its section. Japan has its section. Japanese law applies in its section. And then they have all the agreements of how they will resolve differences.
Nick Capodice: [00:26:33] I'm very familiar with all the different sections in the ISS because of my son's obsession with space.
Justine Paradis: [00:26:38] Oh really? I know that your son is quite a thorough researcher, so we'll have to run this by him to see what I think.
Nick Capodice: [00:26:44] He'd appreciate that.
Justine Paradis: [00:26:50] The Outer Space Treaty was signed almost 60 years ago. And while that version of the space race is over, we're in a new era of extraterrestrial exploration. [00:27:00] And it's not just state rockets headed up there anymore. Private companies like SpaceX are putting objects into orbit now. And it's a time when we're renegotiating the question, who owns the skies?
Deondre Smiles: [00:27:12] You know, when you ask, well, who owns the sky? My initial reaction is like, well, nobody owns the sky, right?
Justine Paradis: [00:27:16] This is Deondre Smiles. He is an assistant professor of geography at the University of Victoria.
Deondre Smiles: [00:27:22] I'm Ojibwe. From my own kind of cultural perspective, it would be really weird for me to say, Oh, we we own the sky because we don't. We were in relationship with the sky. We have accountabilities to the sky, like through, like clean air.
Justine Paradis: [00:27:36] Deondre is the author of an article called The Settler Logics of Outer Space, which argues that the language that we use around traveling into space, like as a pioneer of space, as the next or even the final frontier, that that language is really familiar.
Hannah McCarthy: [00:27:51] Yeah. And that that is very purposeful. Justine I have learned a lot about the American principles of Manifest Destiny and expanding westward. And there's [00:28:00] definitely the sense that once we get to California and we hit the ocean and by we, I mean this is a philosophy of white settlers. We started sort of hanneke looking around for somewhere else to go. And so that meant, you know, like spreading democracy to other countries for a while. And then when space was an option, there was a very real anxiety about getting there. Like that race with the Soviet Union was very much tied to America's notion of being the expander of always having a frontier.
Justine Paradis: [00:28:30] And Deondre is just one of many folks writing about this and about how. Bringing a different approach to space means having accountability to places even beyond the planet.
Deondre Smiles: [00:28:42] We need to instead think about the deep embedded knowledge that sits in places. There's this kind of idea that like, Well, it's empty, right? There's no nobody. It's living in outer space. There's no life there but an indigenous, you know, plural sort of reading of this would say, Well, just because there's nothing living there doesn't mean that it's still [00:29:00] not a space that we have to treat with respect and care and really think about why it is that we're going into outer space in the first place.
Justine Paradis: [00:29:12] One reason why we're going into outer space and space. Law expert George Anthony Long thinks this is one of the biggest issues that will test space law as it exists now is mining.
Hannah McCarthy: [00:29:23] Mining as in like asteroids have a lot of good stuff on them. And just like in the fantastic TV show The Expanse, we're going to have all these factions formed just because there's a lot of money and asteroid minerals resources.
Justine Paradis: [00:29:39] Absolutely. And even not just in asteroids, but the moon. The moon has a lot of frozen water and helium three, which is in high demand on this planet. And helium three also has nuclear fusion potential. But remember, don't these celestial bodies belong to no one.
George Anthony Long: [00:29:56] Who cannot own property in space? [00:30:00] Article two of the Outer Space Treaty prohibits a state from exercising sovereignty in space or any celestial body or the moon. And while that is a very noble goal, I'm not sure how practical that's going to be, because the question becomes how do you protect a mining site or keep other people away from your mining site without exercising some form of control?
Justine Paradis: [00:30:31] So there are a couple different efforts to figure this out, this dilemma around mining. One of them is called the Moon Treaty, but very few countries have signed on to this one.
George Anthony Long: [00:30:42] It talks about the prohibition of property rights and it talks about having the obligation to share some of the wealth that's gained from, let's say, resource extraction or mining in space.
Nick Capodice: [00:30:55] But like the great space powers, I'm talking the U.S., China or Russia, [00:31:00] they haven't signed on to this.
Justine Paradis: [00:31:01] No, they have not. And within the United States, we've got a law that passed in 2015 which says something different that you may not be able to claim an entire asteroid, but if you extract resources from it, you are entitled to those.
Hannah McCarthy: [00:31:15] This is very funny because is this the United States just saying, well, we have this law like because that's not a treaty. It's not between other nations.
Justine Paradis: [00:31:27] It's not. But meanwhile, NASA is leading something, an international agreement called the Artemis Accords, which is sort of affirming some of those principles in the old treaties, but is also trying to carve out more legal room for space mining. But it's still affirming that space is for all humanity ideal of that original outer space treaty of 1967.
Hannah McCarthy: [00:31:49] Yeah, and I can only imagine that once we actually start to be able to extract and acquire them, things are going to change pretty drastically.
Nick Capodice: [00:31:58] On a basic level, like the idea of towing [00:32:00] an asteroid onto the planet that's just pure diamond and suddenly diamonds don't mean anything anymore.
Justine Paradis: [00:32:05] We're going to have to have a new De Beers company or what is the name of that company?
Nick Capodice: [00:32:09] De Beers. Or you can just be like, Oh, those are space diamonds. Those are inferior. He got me a ring, but it had a space diamond on it.
Justine Paradis: [00:32:17] It's not serious. I mean, yeah, I agree with Hannah. Whatever the solution is, it looks like we're going to be entering into a new era of space exploration. A Chinese mission in 2020 already brought back helium three from the surface of the moon. What? And China has definitely not signed the Artemis Accords.
Nick Capodice: [00:32:33] What I think's most interesting about this is it's kind of like anything goes until suddenly it doesn't anymore. Like, that's how we've done things so far. You know, ad column goes until it doesn't anymore. And yeah, right now we don't have nukes in space or real guns and space, and we're not mining space diamonds, But that's going to happen. And when it does, we're going to have enough have to do another episode, I think.
Justine Paradis: [00:32:57] I think so. I mean, it's interesting because [00:33:00] there's this there's this idealistic language around space that does feel quite Star Trek like no one can occupy it. But the thing is, when you put something into orbit, especially geostationary orbit, that's really valuable orbital space, and if a satellite is in that space like it's technically occupying it, no one else can be there. So it's it's already pretty fuzzy, you know?
Nick Capodice: [00:33:24] Well, it's scary to me, too, Justine. The number of things that we are putting in space is growing exponentially as the years go by, and they all just stay there like nothing gets taken out. If space junk gets to be too big, if there's too much of it, we'll never be able to leave the planet again because there's a whirling ball of steel that surrounds our planet and that terrifies me.
Justine Paradis: [00:33:45] And it affects us on earth, you know, like.
Hannah McCarthy: [00:33:49] Right.
Justine Paradis: [00:33:49] I don't imagine that I'm alone when I like, think about looking up at the moon and seeing the lights of a truck backing up like a construction zone or a mining pit. You know, I feel [00:34:00] a little like Thomas Cosby, like, hey, you you trespassed on something fundamental here, you know?
Nick Capodice: [00:34:16] Well, that is who owns the skies from heaven to hell here on Civics 101. This episode was a collaboration between Civics 101 and Outside/In, both productions of New Hampshire Public Radio. It was produced, reported and mixed by our colleague and dear friend Justine Paradis. You can find more of her work as well as the rest of the team at outside, in and outside in radio talk or wherever you get your podcasts. By the way, if any of you out there are interested in Hannah's favorite video game right now, it's called Anno 1800. And it's mine, too. Special thanks to Jim Salzman and Laura Donahue, whose article, Who Owns the Skies, was a major resource for this episode. This episode was edited [00:35:00] by Taylor Quimby and our executive producer, Rebecca Lavoie. Our staff here at Civics 101 includes Christina Phillips and Jacqui Fulton. Music In this episode from Lobo Loco, Proprietor, Triple Bacon, Larry Poppins. Gabriel Lewis. Ben Nelson, Bonkers Beat Club, Bommel Anthony Earls. David Zesty and the Sky That Nobody Can Own, Chris Zabrisky. It's Zabriskie, but you know what I mean? Civics 101 and Outside/In our productions of NHPR. New Hampshire Public Radio.
Nate Hegyi: [00:35:33] Woohoo!
Hannah McCarthy: [00:35:51] My mother has actually used her merchant marine card to get a lot of help and like a lot of passage in her life time passage. Yeah. [00:36:00] Yeah.
Nick Capodice: [00:36:00] Big air quotes around that.
Justine Paradis: [00:36:02] So you. So when you're in distress at sea, when your mom is in distress, at sea... I didn't make that mean to make that a your mom joke but.