In 2012 Congress passed the FAA Modernization and Reform Act requiring the FAA to integrate drones into U.S. national airspace. As drones have evolved from ISR (intelligence, surveillance, and reconnaissance) platforms to weaponized aerial vehicles, public concerns about domestic drone use have increased.
To preserve the rights of its citizens, many states have passed laws that regulate or prohibit the flight, weaponization, and surveillance use of drones. However, those laws may be encroaching on the sovereignty of the federal government.
The idea that federal law is "superior" to state law (i.e. preemption) is rooted in the Constitution and states that the "laws of the United States...shall be the supreme law of the land." Therefore, when a court determines that federal law was intended to preempt state law, the state law is void. Congressional intent to preempt state law consists of two kinds: express and implied preemption.
Express preemption occurs when Congress has explicitly stated that state law will be preempted by the enactment of federal law or regulation. With regards to aviation, two instances of express preemption exist: (1) Congress has expressly asserted "exclusive sovereignty of airspace of the United States," and has placed "exclusive authority for regulating the airspace above the United States with the [FAA]" and (2) Under the Airline Deregulation Act of 1978, Congress prohibited states from enacting laws "related to a price, route, or service of an air carrier that may provide air transportation."
Despite the instances of express preemption stated above, the U.S. Supreme Court has held that there is no general express preemption in the field of aviation. Instead, courts may infer intent either through a conflict between a federal law and a state law or by finding that Congress has taken up the "field."
Under implied field preemption, intent to preempt a state law is typically determined on a case-by-case basis when the federal laws and regulations are "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Although the breadth of laws and regulations in the aviation field are extensive, courts have consistently held that there is room for state laws within aviation subfields.
However, any attempt by states to regulate certain subfields within aviation, including airspace, noise control, and safety, will be deemed preempted. Furthermore, any regulations touching or affecting drone operations in any way, including regulations on flight altitude, flight paths, operational bans, or navigable airspace, could potentially be preempted. For example, a state law banning anyone from operating a drone within certain distances of landmarks will likely be preempted.
On the other hand, if the state law regulates a traditional state power generally not subject to or addressed by federal regulation, including land use, zoning, privacy or trespass, the state law may survive. Notable examples include state laws prohibiting the weaponization of drones and the use of drones for voyeurism.
As the FAA finalizes regulations for commercial drone use and has required the registration of recreational drones, many states have begun exploring state regulations. Whether those state laws will be preempted by FAA laws and regulations is an emerging topic. In the next post, we will apply the principles discussed here to actual state laws to determine whether preemption would apply.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
