Fla. expands liability protections for burgeoning private spaceflight industry

DeSantis approved the law the day after announcing his presidential campaign alongside SpaceX founder Elon Musk. 
A SpaceX Falcon 9 rocket, with the Dragon capsule and a crew of four private astronauts lifts off from pad 39A, at the Kennedy Space Center in Cape Canaveral, Fla., Sunday, May 21, 2023.(AP Photo/John Raoux)

Florida Gov. Ron DeSantis (R) signed into law an expansion of liability protection for commercial spaceflight companies such as Blue Origin, Boeing and SpaceX, as the nascent industry operates without federal safety rules covering individuals onboard the flight craft.

DeSantis approved the law last week, one day after announcing his candidacy for president on Twitter alongside SpaceX founder Elon Musk. 

The new law builds upon a 2009 liability shield that Florida lawmakers enacted as multiple states began jockeying for spaceport supremacy amid NASA’s fading space shuttle dominance and the rise of privately owned space launch disruptors.

“In recent years we have seen an incredible growth of commercial space companies, especially right in my district,” Florida Sen. Tom Wright (R), the sponsor of the bill, said in a statement to Pluribus News. “This, now signed legislation, helps Florida stay on the forefront of the space industry and is one piece to making sure that Florida stays the Space Capital of the World.”

Florida’s existing law indemnified spaceflight entities from liability for the injury or death of participants so long as they had signed a statement acknowledging the risks. Under the new law, public and private entities would also be protected from lawsuits brought by spaceflight crew members.

The new law also broadens the cloak of immunity by applying the protections “to any injury or death … regardless of whether such injury or death arose out of the ‘inherent risks’ of such activities,” according to a legislative analysis.

There are exceptions in which companies could be held liable, such as in cases of gross negligence or wanton disregard for a passenger’s safety.

Boeing, Blue Origin and the Florida Chamber of Commerce were among the entities that weighed in on the legislation, which also had a House companion measure, according to lobbying disclosures.

California Assemblymember Vince Fong (R) introduced similar legislation this year but it has not advanced.

The granting of additional liability protection in Florida comes despite the Federal Aviation Administration currently being prohibited by Congress from “regulating the safety of individuals on board” commercial space craft. The FAA does have the authority to issue space licenses, require certain life-safety systems and regulate the qualifications of flight crews.

Florida’s Space Coast, home to Cape Canaveral and Kennedy Space Center, is a private space flight hub. Last month, SpaceX sent three paying customers on a nine-day mission to the International Space Station. Additional crewed missions are planned for this year aboard SpaceX’s Dragon spacecraft and potentially Boeing’s Starliner.

Space entrepreneurs such as SpaceX’s Musk, Blue Origin’s Jeff Bezos and Virgin Galactic’s Richard Branson envision a future where human space flight is common and people even live and work in space, or at least visit as tourists.

While that reality may still be decades off, states with launch capabilities have for years felt the competitive heat to attract the burgeoning industry.

Virginia was the first state to pass a space flight liability act in 2007, and Florida quickly followed suit, according to attorney Jack Kennedy, who played a key role in the Virginia law’s passage.

Arizona, California, Colorado, New Mexico, Oklahoma and Texas subsequently adopted similar measures.

“It was viewed as a competitive legislative action to lure commercial investment to spaceports of the respective states that were adopting them,” Kennedy said.

After the Virginia law was enacted, then-Virgin Galactic COO Alex Tai was quoted saying, “We are planning for the day we are in court. We need the right legislation and the right insurance.”

Because tort law is predominantly the domain of states, not the federal government, risky industries have a strong incentive to convince state legislatures to pass immunity laws. That holds especially true for spaceflight companies, said Douglas Ligor, a senior behavioral/social scientist with the RAND Corporation, who served as the lead author of a recent congressionally mandated report on commercial spaceflight safety regulations.  

“Look, you’re strapping yourself to the top of a rocket, there are a lot of inherent risks,” Ligor said. “If you’re an industry member, you want state legislatures to address this if you’re launching in their state.”

As with other risk-laden activities, like adventure sports, Ligor said states with spaceflight liability laws “put the burden on the … participant to prove a high standard of fault.”

But even as Florida enhances liability protections for the industry, Ligor noted that commercial spaceflight companies are operating without the federal safety regulations for passengers that exist with airlines. In 2004, Congress imposed a rare moratorium on the development of such rules, which is set to expire in October.

The RAND report recommended that Congress allow the moratorium to sunset and that the FAA be given the resources to begin to develop “appropriate regulations.”

In the absence of federal safety rules, the industry has been developing voluntary standards. But Ligor said that process has been slow and that the companies did not share information and data with his research team, making it difficult to assess those standards.

“That can create blind spots and gaps, which, if anomalies and mishaps are unaddressed, could lead to a catastrophic incident,” Ligor said.

A SpaceX rocket called Starship exploded in April after takeoff during its first flight. While there were no humans onboard the test flight — which was declared a success despite the loss of the vehicle — the company’s goal is to eventually use Starship to carry humans to Mars.

It is not clear yet if Congress will let the moratorium on safety rules expire or renew it as has been done three other times. But Ligor said the status quo is not allowing for the development of safety standards that can be objectively examined and analyzed.

“You’re trusting industry players to say, ‘We have sufficient standards, we’re safe.’ Basically, ‘Take our word for it,’” Ligor said.

In Florida, where space travel is designated as an official mode of transportation, the state’s spaceport system is viewed as a key economic development driver as the commercial space marketplace continues to grow.

Space Florida, the state’s aerospace finance and development authority, said it is focused on creating a “predictable and stable” regulatory framework for commercial space operators.  

“Spaceflight liability laws are part of the growth and development of the space industry ecosystem and are part of creating that regulatory framework,” said Anna Alexopoulos Farrar, a Space Florida spokesperson.