The
Prometheus
Promise
The Virgin Galactic Crash and the
Price of Defying Our Limitations
By Maria-Vittoria “Giugi” Carminati
V
irgin Galactic is considered to
be a frontrunner in the space
tourism industry. More than 800
people have already paid or put down
deposits for a trip on SpaceShipTwo,
at a cost of about $200,000 to $250,000
per person. (The number of people
and amount varies based on source.)
On October 31, 2014, VSS Enterprise,
a Virgin Galactic Scaled Composites
Model 339 SpaceShipTwo experimental
spaceflight test vehicle, suffered a catastrophic in-flight breakup and crashed
in the Mojave Desert, California,
United States, while performing a test
flight. The copilot, Michael Alsbury,
was killed, and the pilot, Peter Siebold,
was seriously injured. Although this
may sound rote and fall hopelessly
short of expressing the depth of my
gratitude and empathy, I offer my condolences to the Alsbury family. It is
men like him and of his caliber who
have made all human advances possible. He is part of history, and we won’t
forget.
The Accident
It is important to first give a brief recap
of the accident itself even though, of
course, the investigation is ongoing
and will continue for awhile. What we
know so far is that the feathering system (whereby two wings move into a
vertical position perpendicular to the
body of the vehicle) deployed too early.
Because of this, SpaceShipTwo was
still surrounded by too much air and
was going too fast, which would have
tremendously increased drag and contributed to the vehicle breakup. The
feathering system is meant to deploy
after two commands. Current reports
state that the pilot may have triggered
the first command and that for some
yet undetermined reason the second
command was also triggered, resulting
in deployment of the feathering system.
The vehicle broke up at approximately 50,000 feet. One of the pilots
survived, and one of them didn’t.
Neither pilot was able to “eject” himself, contrary to early reports. Siebold
reported that his last memory before
losing consciousness was feeling “the
water boil on his tongue.”1 This is a
sign of ebullism—the boiling of water
because of the low pressure at certain
altitudes around approximately 63,000
feet. Mr. Siebold did not eject from the
vehicle. The vehicle, in fact, does not
have an ejection system, which is why
the vehicle broke up around Siebold,
and—according to his account—he was
able to eventually unbuckle himself at
approximately 17,000 feet. Siebold’s
parachute opened, and he was able
to (remarkably) survive the accident.
Based on these reports and efforts to
string together related information,
it seems that Siebold lost consciousness while still around 50,000 feet,
then regained consciousness where
oxygen levels were higher, and while
conscious was able to unbuckle and
deploy the parachute. Certain reports
regarding unheeded “warnings” by
engineers prior to the launch were
sternly rebuked by Sir Richard Branson of Virgin Galactic who stated that
any “no-go” messages would have been
heeded.2
Aside from the sensational responses
to the accident (discussed below), the
accident raised a number of issues
regarding design and mission profile; whether and how Virgin Galactic
chooses to address these remains to be
seen. A few issues are the following.
First, the pilots did not have pressure
suits. Pressure suits are meant to protect
individuals from the extreme low pressures of the upper atmosphere. Virgin
Galactic made the decision to omit pressure suits for design reasons:
The design of SpaceShipTwo
prevented the use of bulky pressure suits. Designer Burt Rutan
said that he wanted small
hatches to preserve the strength
of the pressure vessel of the
Published in The SciTech Lawyer, Volume 11, Issue 3, Spring 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
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PHOTO © Steve Jurvetson from Menlo Park, USA [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons
SpaceShip Two mated to its carrier, White Knight Two (named Eve after Sir Richard Branson’s mother). Eve is the largest
all-composite aircraft ever constructed and has the longest single-piece composite aircraft part: a 140 ft.-long wingspan.
composite-construction spacecraft, according to veteran test
pilot Paul Tackabury, who sat on
the board of directors of Scaled
Composites until it was sold to
Northrop Grumman. Pilots wear
thin jumpsuits when flying the
spacecraft.3
Pressure suits could have helped
save the crewmembers, but for several reasons they would not necessarily
have ensured their survival. On one
hand, it is still unclear how Alsbury
died and whether a suit would have
allowed him to survive. Case in point:
Siebold did not have one, and, although
his survival is remarkable, it certainly
indicates that survival was possible. On
the other hand, a standard pressure suit
may have helped the crew at that particular altitude—the Red Bull Stratos
and the Stratex projects used suits that
ensured survival at altitudes of 127,000
and 135,000 feet, respectively— but
there is a legitimate question about
whether it would make sense to
develop a suit capable of ensuring survival at any altitude within the vehicle’s
flight profile (which is supposed to
reach approximately 328,000 feet).4
Even if Virgin Galactic were to change
its approach (which seems unlikely)
and require a suit, there still would be
a question as to which suit would be
most appropriate.
Second, as stated above, the vehicle does not have an ejection system.
Some have noted that designing and
introducing an ejection system into
the vehicle would require a massive reengineering of the vehicle itself. These
questions are beyond my expertise and
are best answered by engineers. The
topic is certainly worthy of tracking by
the interested public.
The Excitement of Scandal
What was perhaps most disheartening about the accident was the media’s
excitement and (at times misleading)
fomenting of “scandal.” For example, the BBC reported that the Virgin
Galactic crash was “the second accident
this week involving a commercial space
company in the US.” BBC was referring to the unmanned supply rocket
called Antares that exploded shortly
after its launch in Virginia. The Antares
rocket was carrying cargo to the
International Space Station. This is just
one example of numerous misleading
and ill-informed statements made in
the wake of the accident. The Antares
rocket did, indeed, explode. But it
did so because the operator engaged
the self-destruct sequence once it
became evident that the launch was
not proceeding under nominal, that is,
planned, conditions:
Orbital spokesperson Barron
Beneski told CNN the crash was
initiated by the flight termination
system. Such an order is typically
given after it’s clear the rocket
will not meet its intended trajectory in order to ensure that it
goes down over a relatively small
and unpopulated area. No injuries were reported in the crash.5
In other words, if anything, the
Antares rocket explosion was an
example of the system working: an
off-nominal launch was interrupted
and all danger to surrounding populations was eliminated by the initiation
of self-destruction of property. Conflating the Antares rocket explosion and
Published in The SciTech Lawyer, Volume 11, Issue 3, Spring 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
the Virgin Galactic accident to create a
pattern of failure is an inaccurate and
detrimental connection of events. It is
also irresponsible journalism.
The Laws Were Designed
to Allow This
Cries that the FAA will simply “not
allow” commercial space carriers to
fly customers as a result of the incident by refusing “to certify” the space
vehicles also betrays a profound misunderstanding of the laws and the space
licensing system in the United States.
The FAA and the commercial space
industry have a relationship very different from the relationship between
the FAA and the airline industry. For
example, statements that the FAA has
to, but will not, certify suborbital vehicles after the Virgin Galactic accident
express a misunderstanding of the laws
and regulations governing suborbital
flights. In order to understand our current system, the best place to start is
the passage of the Commercial Space
Launch Act, which governs suborbital
flights in the United States. At the time
of passage, House Representative Sherwood Boehlert, chairman of the House
Committee on Science, explained:
Here is what the bill does not do.
It does not allow the FAA right
now to guess whether some new
Maria-Vittoria “Giugi” Carminati
practices commercial litigation and
criminal defense at Carminati Law
PLLC in Houston, Texas, where she is
principal attorney. From 2008 to 2013
she practiced complex commercial
litigation at the prestigious international
law firm Weil, Gotshal & Manges. She
then joined the boutique law firm Berg &
Androphy, where she represented whistleblowers, criminal defendants, and
several energy companies in the business
of marketing and transporting energy
products. Giugi also has an LLM in
Space, Cyber & Telecommunications law.
She coauthored The Laws of Spaceflight:
A Guidebook for New Space Lawyers,
and she taught both space law and
pretrial litigation at the University of
Houston Law Center.
untested rocket technology will
do harm to the people onboard.
Why? Because this industry is at
the stage when it is the preserve
of visionaries and daredevils and
adventurers. These are people who
will fly at their own risk to try out
new technologies. These are people who do not expect and should
not expect to be protected by the
government. Such protection
would only stifle innovation.6
Ten years later we are faced with this
specific scenario: people who choose to
fly to try out new technologies. Sometimes this results in success; sometimes
in tragedy.
When the FAA passed regulations
governing licensing of commercial
space in the United States it created a
“learning-period moratorium” during
which the FAA would not impose regulations on SFP safety. This period is also
referred to as the “regulatory learning
period.” This learning-period moratorium is set to end on October 1, 2015.
Debates regarding whether the period
should be extended beyond that were
already underway before the Virgin
Galactic crash, and, in all likelihood,
the accident will be central to debating whether the moratorium should be
extended. COMSTAC (the Commercial
Space Transport Advisory Committee to the FAA) would like to see the
moratorium run eight years from the
first commercial flight. Others, such as
Associate Administrator George Nield,
disagree with COMSTAC regarding the
extension. Compromise, however, was
likely on the issue of whether operators should be allowed to continue to
test and change their design after the
end of the moratorium, with all sides
agreeing this would be for the best. All
of this, however, does not change the
fact that the US has adopted—so far—a
licensing system and not a certification
system for the regulation of commercial space flight. As the laws stand now,
the FAA licenses flights—it does not
certify them as safe for the people on
board. Indeed, the only safety requirement is safety for the uninvolved
public. An attempt to raise the specter
of regulation without acknowledging
this reality misinforms readers and the
public.
Our Wings Were Paid in Blood
From the horse-drawn cart to the car to
the airplane and, now, to the space vehicle, innovation always has and always will
come at a high cost: human life. That is
both an undeniable and commonly forgotten truth. A 19th-century balloonist,
David Mahoney, died in an air accident,
drowning after his balloon came down in
the sea in 1899. This didn’t stop human
exploration of the air space above them.
Balloons gave way to airplanes, and so
humans ushered in a first-of-its-kind
pioneering of aviation. This pioneering
resulted in the widespread use of daily
airline travel for business and pleasure
alike, by people all around the globe. This
ease of travel and ever-increasing safety
came at a price: the death of test pilots,
visionaries, engineers, military personnel, and civilians, among others. Access
to space will require similar sacrifices.
Hopefully not in the same numbers, and
hopefully we will be faster and more efficient at learning to travel safely to space.
But one fatality will not—if history can
teach us anything—put a stop to orbital
and suborbital space travel. And statements to the contrary are needlessly
sensationalist. A brief review of fatalities
in the world of aviation makes it abundantly clear that humanity’s spirit of
exploration will stop—quite literally—at
nothing.
In 1909, Eugene Lefebvre was the
first person to die while piloting a powered airplane. In 1911 an aviator died
in a Paris to London air race. In 1913,
another aviator died in a BordeauxParis air race. In 1919, Raymonde de
Laroche—the first woman to earn a
pilot’s license—and her copilot died
in an experimental aircraft. These are
just a few examples spanning 10 years
in the history of aviation. The list continues into the ’20s, ’30s, ’40s, and into
every decade to this day. The numbers of fatalities per accident, in fact,
increased because the capacity of airplanes also increased. In 1970, the
Wichita State University football team,
as well as its coaches and supporters,
Published in The SciTech Lawyer, Volume 11, Issue 3, Spring 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
died in a plane crash. In 1977, the
Tenerife Disaster—which is still the
accident with the highest number of
airline passenger fatalities—resulted
in 583 deaths. In 1985, JAL Flight 123
crashed, killing 520 people. In 1996, the
Charkhi-Dadri midair collision killed
349 people. The list goes on and on. Yet
humans get on airplanes every day.
Indeed, for many professionals, taking an airplane is a routine part of their
professional life. In 2014 alone, according
to the World Bank, airlines transported
3,023,302,472 passengers worldwide.7
And people generally view airplane travel
as safe—despite the number of deaths it
has caused along the way. If someone sees
the Virgin Galactic accident as a singular
unprecedented catastrophic event, they
are ignoring the fact that humans sacrifice
themselves and each other for technological advancement. We always have;
we always will. Although tragic—and
a life lost in pursuit of aiding humanity to increase its exploration of the world
around it should never be forgotten and
never taken for granted—it was, to say it
plainly, “part of the deal.” As a member
of the space community, I didn’t know
Mr. Alsbury, but I lived his death like losing “one of our own.” Rep. Boehlert of
the House of Representatives, when passing the Commercial Space Launch Act in
2004, stated, “This industry is at the stage
when it is the preserve of visionaries and
daredevils and adventurers. These are
people who do not expect and should not
expect to be protected by the government.
Such protection would only stifle innovation.” We are the visionaries and daredevils
and adventurers. We choose to go where
others don’t want to or are afraid to go.
But it is precisely because we are visionaries and daredevils and adventurers that we
won’t stop.
An interesting firsthand account
of the Virgin Galactic crash came
from a ticket holder on a future Virgin Galactic flight who also happened
to be a print journalist. Jim Clash, a
Forbes Contributor, wrote copiously
about his training for the suborbital
flight. After the accident, he reported
being inundated with media requests
(a novel experience for a journalist).
He explained, quite bluntly, that the
accident did not change his resolve to
go suborbital:
In each interview, I tried to keep
my message clear. This is rocket
science, and it is difficult. That is
why companies like VG test. Can
you imagine if the accident had
occurred with a ship full of eight
people? I also reiterated that I was
not giving up on the program, nor
was I selling my reservation back
(it is 100% refundable). I was in
for the long haul.8
This particular comment brings up
another interesting aspect. Commentators decrying the risks associated with
suborbital flights as being “too high”
seem to ignore—or forget—that nobody
is being forced to undergo these risks.
Individuals are free to engage in suborbital flights or not. In fact, the entry
fee to undertake the risks of suborbital
flights makes it a privilege; at $200,000–
250,000 per ticket, a Virgin Galactic
flight is no “impulse buy.” So when some
ask, “Is it worth the risk?” the answer is,
“It depends.” Like many things in life, if
it’s not for you, don’t do it. But one person’s determination that something is
too risky in no way makes the activity
too risky as a general matter. And for
some, suborbital flights are worth the
risk. For others, they are not.
Are We Destined to Fall Prey to
Liver-Eating Eagles?
Prometheus, Titan god of forethought
entrusted with the task of molding mankind out of clay, defied Zeus,
who had withheld fire from humanity,
and stole fire to deliver it to mortal humankind. For his defiant (yet
humanity-altering) act, he was sentenced to be bound to a stake and to
have an eagle feed on his ever-regenerating liver (or, some say, heart).
Prometheus made the ultimate sacrifice
to give us fire. When individuals and
companies strive to give us humans
space travel, it is hard to see them as
anything other than Prometheus-like,
defying risk, criticism, and the limits of
human physiology and engineering to
bring us the promise of other worlds.
So the question, finally, is whether suborbital flight and—by extension space
exploration—are doomed; are we to
be punished for our hubris? (I use this
word noting that some have indeed
accused Richard Branson of hubris as
though he were quite literally defying
the gods quite like Prometheus did.)
BBC quoted space scientist Dr. David
Whitehouse’s comment about the Virgin Galactic crash: “I think this shows
that there is no such thing as routine, regular safe access to space.” The
response, obviously, is, “Of course there
isn’t.” Not yet. But this painful path is
the one we are on. In fact, progress is
often a painful path. The space community—the far-flung yet tightly bound
community of space visionaries and
lovers—are both humankind and Prometheus. Prometheus’s story is both a
tragedy and a promise. We will suffer
setbacks and failure, some of us will be
punished, some of us will be accused of
hubris, but in the end, we will bring fire
to humanity and give ourselves the gift
of traveling beyond this Earth. That is a
promise worth fighting for. u
Endnotes
1. See http://www.technobuffalo.com/
2014/11/13/spaceshiptwo-survivor-said-heremembers-water-boiling-on-his-tongue/.
2. See http://www.nydailynews.com/
news/national/richard-branson-virgingalactic-flight-safe-blasts-self-proclaimedexperts-accident-article-1.1998323. That is
what we know to date.
3. See http://www.aero-news.net/index.
cfm?do=main.textpost&id=e899567f-4d6c4591-9105-30f545df5e1d.
4. In the interests of full disclosure, I am
co-owner of an aerospace company raising
funds for a high-altitude bailout project that
would require the development of precisely
such a suit and aimed at addressing precisely
this issue.
5. http://time.com/3550794/
antares-nasa-iss-rocket-explosion/.
6. The Congressional Records, H1004849, daily edition, Nov. 19, 2004 (emphasis
added).
7. http://data.worldbank.org.
8. http://www.forbes.com/sites/
jimclash/2014/11/21/virgin-galactic-crashputs-journalist-on-other-side-of-questions/.
Published in The SciTech Lawyer, Volume 11, Issue 3, Spring 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.