Creation and use of shallow and deep underground space raise few legal questions that have not been encountered during the development of other natural resources. Issues concerning ownership of space, standards of proper use, and extent of public regulation will be sharpened and resolved with greater experience aided by multidisciplinary assessments of how to enjoy maximum benefits of this new frontier with minimum social costs.
Principles of technology transcend national borders, but laws generally do not and, indeed, frequently differ among political subdivisions within nations. However, the role of law is the same nearly everywhere. It allocates rights and responsibilities with respect to owner-ship and use of property, establishes standards of conduct among persons and institutions, and balances the responsibilities of private and public entities. The most common legal questions, such as those related to obligation of contract, liability for accidents, and investment of capital, are similar to those that arise during construction and use of surface facilities. The purpose of this paper is to provide an overview of the three main legal questions concerning use of subsurface space:
right to use the space-- that is, its ownership and access to it,
use of the space in a manner consistent with use of the land surface and of surrounding subsurface earth and space, and
regulation by government of how the space can be used. Please note that we are not concerned here with specific laws.
That, indeed, would be presumptuous at an international conference with official delegations from more than 30 nations. Law consists of interwoven sets of rules that have grown in response to needs and expectations of the past. The flexibility of law at times might be somewhat unsettling as it is applied to specific factual situations, but lack of rigidity is a virtue rather than a vice. It allows law to respond smoothly to altered conditions and helps avoid abrupt changes in the social order. The legal system must accommodate the rights granted in the past with the ones acquired today under far different social conditions. Therefore, in analyzing the status of law with respect to an emerging technology, He first must make two determinations.
What is the law--that is, how has society responded to past experiences?
What should be the law--that is, how should society respond to present and future expectations?
If the two are not the same, if "is" does not equal "ought", then we consider how to change the law without; abandoning present reliance on it. If law does prove to be a hindrance to technological development, it almost certainly is because He have not foreseen the results of the technology itself. To regard law as anything but an ally in the development of subsurface space is to discredit the efforts of past generations in devising a remarkably resilient mechanism for balancing the benefits and burdens that jointly accompany changing conditions.
