I stumbled across a surprising drone policy update in the FAA’s Aeronautical Information Manual (Manual) last week. The Manual contains official guidance and best practices to US airspace users. (My friend Marc Scribner reminds me that the Manual is not formally regulatory, though it often restates or summarizes regulations.) The manual has a (apparently) new section: “Airspace Access for UAS.” In subsection “Airspace Restrictions To Flight” (11-4-6) it notes:
There can be certain local restrictions to airspace. While the FAA is designated by federal law to be the regulator of the NAS [national airspace system], some state and local authorities may also restrict access to local airspace. UAS pilots should be aware of these local rules.
Legally speaking, the FAA is recognizing there is no “field preemption” when it comes to low-altitude airspace restrictions. In sharing this provision around with aviation and drone experts, each agreed this was a new and surprising policy guidance. The drone provisions appear to have been part of updates made on April 20, 2023. In my view, it’s very welcome guidance.
Some background: In 2015, the FAA released helpful “fact sheet” to state and local officials about drone regulations, as state legislatures began regulating drone operations in earnest. The FAA noted the several drone-related areas, including aviation safety, where federal aviation rules are extensive. The agency noted:
Laws traditionally related to state and local police power – including land use, zoning, privacy,
trespass, and law enforcement operations – generally are not subject to federal regulation.
To ensure state and federal drone laws were not in conflict, the FAA recommended that state and local officials consult with the FAA before creating “operational UAS restrictions on flight altitude, flight paths; operational bans; any regulation of the navigable airspace.”
That guidance is still current and still useful. Around 2017, however, it seems some within the FAA began publicly and privately taking a rather harder line regarding state and local rules about drone operations. For instance, in July 2018, someone at the FAA posted a confusing and brief new statement on the FAA website about state and local drone rules that is hard to reconcile with the 2015 guidance.
Others noticed and reported to Congress a change at the FAA and the legal uncertainty created as companies wanted to deploy and states and cities wanted reasonable rules on operations to protect their residents. Last year the USDOT Inspector General told Congress that in 2018 a lead State participant in an FAA drone program requested a clarification as to whether particular State laws regarding drones conflicted with FAA rules. When the Inspector General asked the FAA for an update, four years had passed, and “FAA has not yet provided an opinion in response to that request.” The GAO likewise told Congress a few years ago, an unsettled question has plagued the drone industry and state lawmakers for years: Can states enforce local restrictions for surface airspace? GAO reported that the federal government had not taken a formal position regarding whether local restrictions were enforceable.
Finally the FAA makes clear: Yes, in some circumstances, state and local officials may restrict access to local airspace.
Unfortunately the drone industry and aviation regulators nationwide have lost several years (and many companies) waiting for a clear federal position.
Courts on Field Preemption
Many drone advocates, even recently, assert that states and local regulators can’t restrict surface airspace. Some incorrectly claim, among other things, that only the FAA can regulate airspace and that state and local airspace rules are subject to “field preemption.” Courts have ruled against drone advocates in the three cases I’m aware of where field preemption was raised: Singer v. City of Newton, NPPA v. McCraw, and Xizmo v. New York City. As the court said in Singer:
the FAA explicitly contemplates state or local regulation of pilotless aircraft, defeating Singer’s argument that the whole field is exclusive to the federal government.
Legal Scholarship on Drone Regulation
Likewise, it was clear to many legal scholars that some state and local airspace rules would apply to drones. Around 2016, I set out to write a policy research paper on the need for clear and uniform federal rules about low-altitude airspace that small drones use (“surface airspace”). I ran into a problem with my thesis: surface airspace policy is not a straightforward exercise of federal regulation. Analysis by legal scholars like Prof. Troy Rule (ASU Law) Prof. Laura Donohue (Georgetown Law), and Prof. Henry Smith (Harvard Law) convinced me that any federal aviation rules purporting to authorize drone flights into surface airspace (say, below 200 feet altitude or so) would run into a buzzsaw of legal challenges from state governments and landowners concerning state authority, trespass, and private property takings.
That’s because it is black-letter law that “real property” in the US has a three-dimensional aspect that includes surface airspace. Further, determinations about landowners’ property rights and entitlements are typically determined by common law and state law, not federal aviation officials.
My original thesis scrapped, my paper went in new direction. My research about drone policy took me through the history of surface airspace propertization, back to 19th century Anglo-American legal treatises and court decisions, which I explored in a working paper published by the Mercatus Center in 2020 (and edited and republished by the Akron Law Review). To accelerate commercial drone deployments nationwide, I proposed a “cooperative federalism”–not FAA alone–approach to permitting drone operations in surface airspace.
So: courts have been clear about this, legal scholars have been clear about this, and now, finally, the FAA has been clear about this in the updated Manual: “Some state and local authorities may also restrict access to local airspace. UAS pilots should be aware of these local rules.”
With that long-awaited clear statement in April 2023, the major stakeholders–including FAA, state aviation offices, the drone industry, and local officials–can begin the hard work of building world-class commercial drone operations nationwide while protecting the property and privacy expectations of residents.
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