The FCC Says Satellites Are Outside NEPA: What the New Order Changes and Where It Is Exposed

The FCC has treated satellite licensing as categorically excluded from environmental review since 1986. An exclusion still keeps you inside the statute: someone can ask for an assessment, and a court can ask whether refusing one was reasonable. That is how the International Dark-Sky Association reached the D.C. Circuit in 2024.

The order the Commission adopted on 30 September takes a different route. It says NEPA does not apply to satellite operations in the first place. The accompanying Further Notice appeared in the Federal Register on 19 October, and one law firm alert puts the FCC NEPA order’s start date at 18 November.

What the FCC adopted

The item is a Report and Order and Further Notice of Proposed Rulemaking in WT Docket No. 25-217, FCC 26-64, which started with a notice in August 2025. According to Telecompetitor, Commissioner Anna Gomez dissented in part from the order, and the Further Notice was unanimous.

I could not retrieve the adopted text. What follows relies on the draft released on 9 September and on the Davis Wright Tremaine alert of 19 October, which describes the adopted order. Paragraph numbers may differ in the final version.

The FCC now asks first whether an action is a “major Federal action”. If it is not, NEPA does not apply. The alert quotes the order as one that “substantially narrows the communications infrastructure subject to environmental review.”

One date needs care. The alert says revised sections 1.1301 and 1.1302 take effect on 18 November, 30 days after Federal Register publication. The only document I can find from this proceeding in the Federal Register since 1 October is the Further Notice at 91 FR 66062. I found no final rule amending 47 CFR Part 1 for this item in searches up to 3 November. Treat 18 November as a firm comment deadline but an unconfirmed effective date.

The two statutory hooks

Congress defined the key term in the Fiscal Responsibility Act of 2023. Under 42 USC 4336e(10), a major Federal action is one “the agency carrying out such action determines is subject to substantial Federal control and responsibility”. The definition then excludes, among other things, a non-Federal action “with no or minimal Federal involvement where a Federal agency cannot control the outcome of the project”, and “extraterritorial activities or decisions, which means agency activities or decisions with effects located entirely outside of the jurisdiction of the United States”.

The FCC uses both. For space stations, the draft relies mainly on the extraterritorial limb. Paragraphs 64 and 65 reason that the United States is not sovereign over outer space, that Article II of the Outer Space Treaty bars national appropriation, and that a State’s jurisdiction over its own space objects does not turn space into US territory. Paragraph 62 adds that spectrum authorisations do not create Federal control over the non-Federal deployments that follow.

For earth stations, the FCC relies on control. Licensees choose where and how to build and receive no Commission funding for it. As the Further Notice puts it, “the Commission licenses the use of spectrum, not facilities”.

The Commission rejected the arguments of DarkSky International, which said launches and de-orbiting produce atmospheric effects and light pollution inside the United States. Paragraph 66 of the draft says the immediate effect of authorising a space station falls on satellites outside US territory, and quotes a court decision that the scope of major Federal actions “stops where the federal control stops”. The alert says the adopted order treats light pollution and orbital debris as too remote. On launches, the draft says the FCC “lacks express authority to regulate the terrestrial impacts from space launches”, which it attributes to the FAA under 51 USC 50905.

What stays and what goes

Little changes day to day for a compliant operator. Satellite operators keep their obligations under the FCC’s orbital debris, end-of-life disposal and casualty-risk rules, and the order makes conforming changes to the new Part 100, which we covered in our note on milestones and surety bonds. RF exposure limits survive because, as the alert explains, they rest on the Communications Act and not on NEPA. Commissioner Olivia Trusty said “this clarification does not create a regulatory vacuum for space operations.”

What goes is a way in. Under the old rules a petitioner could argue that a large constellation had a significant environmental effect and demand an assessment. That argument failed in Dark-Sky Association v FCC and again in the Reflect Orbital grant, but both times the FCC had to answer it. If the order holds, it will not have to.

Earth stations are not free of every environmental law. Endangered Species Act consultation still applies, on an interim basis, to activities that qualify as an ESA “action”, and section 106 of the National Historic Preservation Act moves to a new subpart without changing scope. The Further Notice then asks whether spectrum licensing is connected closely enough to construction to be an “undertaking” under section 106 or an agency action under the ESA at all. That matters to anyone building gateways. Comments are due on 18 November and replies on 3 December.

Where the order is exposed

I see three weak points, and these are my reading, not the Commission’s.

The first is the word “entirely”. The statute excludes effects located entirely outside US jurisdiction. Launches and reentries pass through US airspace, and the night sky is seen from US soil. The Progressive Policy Institute, broadly sympathetic to the FCC, called the exclusion’s application murky given new research on atmospheric effects from reentry. The FCC’s answer is that those are downstream effects of separate activities. Seven County Infrastructure Coalition v Eagle County, decided by the Supreme Court in 2025, helps it, because agencies need not study separate upstream or downstream projects and courts must defer to them on scope. But Morgan Lewis notes that effects can still count when they occur later or at a distance.

The second is that the statute says jurisdiction, not territory. Article VIII of the Outer Space Treaty says the State of registry “shall retain jurisdiction and control” over an object in space. The draft takes this on directly and declines to treat treaty jurisdiction as NEPA jurisdiction, citing the presumption against extraterritoriality in Morrison v National Australia Bank. Challengers will point to Environmental Defense Fund v Massey, where the D.C. Circuit applied NEPA to a US station in Antarctica. Morgan Lewis notes that later cases warn against relying on the absence of a competing sovereign alone.

The third is control. The FCC says a licence gives it no control over how an operator builds, flies or disposes of a satellite, yet it keeps rules on end-of-life disposal and casualty risk. Trusty’s reassurance and the control argument pull in opposite directions.

The 2024 decision settles none of this. The D.C. Circuit reviewed the categorical exclusion and upheld the FCC. It did not decide whether NEPA reaches outer space. It did hold that stargazers and astronomers had standing, which any challenger will rely on.

The FAA gap

The FCC has long leaned on the FAA. The D.C. Circuit accepted the Commission’s reliance on an FAA environmental review for Starlink launches. Now the FAA wants out too. On 30 July it proposed, under 51 USC 50905, to waive specified requirements of 13 statutes, including NEPA, for commercial launch and reentry licences, as Holland & Knight summarised. Comments closed on 31 August, more than 3,200 of them according to Payload. I found no final rule.

If that rule is finalised as proposed, the FCC will say launch and reentry belong to the FAA, and the FAA will say the review has been waived. Payload notes that the effect would fall mostly on private sites like Starbase. I cannot then see which agency would assess the cumulative effect of constellations in low Earth orbit.

Scale makes this matter. On 8 July Earthjustice asked the FCC, for DarkSky International and others, to pause orbital data centre applications until it completes a programmatic review. The applications together propose well over a million satellites, and SpaceX alone asks for up to a million. If the order stands, that request loses its footing. Earthjustice’s Jan Hasselman said: “If we have to sue so that they comply, we will.”

The Government Accountability Office also has an open file. In November 2022 it made three recommendations asking the FCC to re-examine its environmental review of large constellations, and all three are still listed as open.

What I would watch

The first is the petition for review. Gomez warned that “we cannot abdicate our responsibility with regard to our licensees”. Watch for Federal Register publication of the order itself, which should start the clock for a challenge.

The second is the FAA’s final rule. Morgan Lewis says it could be challenged on the scope of the waiver power and the adequacy of interagency consultation.

The third is the first orbital data centre grant. If the Commission acts on one of those applications without addressing the July petition, that grant is a likely vehicle for a court to decide whether a million satellites can sit entirely outside US jurisdiction.

Anuj KumarEditor-in-Chief

Anuj Kumar is the founder of Legal Desire Media and publishes Fashion Law Journal and Space Law Journal.

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