United States: Federal Versus State Drone Laws: Part II – State Infringement Of Federal Sovereignty Or Federal Invasion Of State Police Powers?

Last Updated: January 8 2016
Article by Mark J. Connot and Jason J. Zummo

One hundred and sixty-eight bills restricting drones were passed in forty-five states in 2015. Whether these bills have or will be preempted by FAA laws and regulations is an emerging issue. In Part I, we discussed the constitutional concept of preemption and how courts determine when it applies. In this discussion, we will apply those principles to an actual state law.

Early last year, the Nevada legislature passed Assembly Bill ("AB") 239, which has numerous provisions regulating the operators of drones. Section 18 of the bill states "A person shall not weaponize an unmanned aerial vehicle or operate a weaponized unmanned aerial vehicle." Is it subject to preemption?

In a report released December 17, 2015, the FAA specifically noted examples of laws within the states' police power and not subject to federal regulation, which include prohibitions on attaching weapons to drones. Therefore, Section 18 may not be subject to preemption.

On the other hand, Section 18 is susceptible to field preemption under the subfield of aviation safety because its purpose demonstrates a concern for the safety of citizens and property. The FAA has the sole responsibility "to regulate navigable airspace to ensure its safe use." Furthermore, the second part of the statute states "A person shall not...operate a weaponized unmanned aerial vehicle." That part, as opposed to the first portion of the statute which simply prohibits weaponizing drones, seems to regulate or at the very least affect the operation of the drone itself which is the responsibility of the FAA. As a result, Section 18 may not survive a challenge.

From a practical perspective however, that section may never be challenged as it does not conflict with federal law. If the statute authorized the converse, i.e., permitted drone operators to weaponize drones, then it would certainly be preempted.

Also vulnerable to preemption is Section 18.5 of AB 239. It states, "A person shall not operate an unmanned aerial vehicle within: (a) A horizontal distance of 500 feet or a vertical distance of 250 feet from a critical facility without the written consent of the owner of the critical facility." This is arguably an operational ban and directly restricts drone operation, flight altitude, and flight paths. More importantly, a court would likely characterize the law as a regulation of safety which is a subfield within aviation that seems to have been absorbed by federal law and regulations. Therefore, it would likely be preempted.

Section 19 of AB 239 allows property owners to sue drone operators for trespass if, (1) a drone has flown at a height of less than 250 feet above the owner's property at least once; (2) the property owner has told the drone operator that he/she does not consent to the drone flying over his/her property; and (3) the drone operator then flies the drone less than 250 feet above the property again.

However, a person cannot sue for trespass under Section 19 if, (1) the drone is lawfully in the flight path for landing at an airport, airfield, or runway; (2) the drone is taking off or landing; or (3) the drone operator is licensed to operate the drone by the FAA and the drone does not unreasonably interfere with the existing use of the real property.

Section 19 concerns privacy and trespass, and falls within state police powers not generally subject to FAA regulation. Additionally, any threat of preemption may be mitigated by the exceptions which allow FAA integration of drones into U.S. airspace while addressing the concerns of unlawful trespass and surveillance.

On the other hand, Section 19 directly addresses drone flight. As previously discussed, the FAA considers any operational drone restrictions on flight altitude, flight paths, or navigable airspace by states to be an encroachment on their authority. As a result, state regulation of overflight will be rigorously scrutinized by federal courts, increasing the likelihood of preemption.

From a policy standpoint, the FAA argues that substantial air safety issues are raised when state governments attempt to regulate the operation or flight of aircraft. If multiple states pass different laws regulating navigable airspace, fractionalized control of the navigable airspace could result. From the FAA's perspective, a navigable airspace free from inconsistent state restrictions is necessary to the maintenance of a safe air transportation system.

As noted by President and CEO of the Association for Unmanned Vehicle Systems International (AUVSI) Brian Wynne, legislation recently proposed at the state level may conflict with federal jurisdiction resulting in "a complicated patchwork of laws and ordinances" causing confusion about where commercial UAS operators could fly.

While certain provisions of AB 239 as well as laws enacted by various other states are susceptible to preemption, until challenged and litigated in court (or repealed by the legislature), there will continue to be legal ambiguity. What is clear is that the breadth and pervasiveness of the forthcoming Federal drone regulations will greatly influence the degree and scope of preemption.

The surge in drone technology has the potential to bring added business and jobs to states that welcome this burgeoning new industry. State lawmakers must exercise caution in enacting laws affecting drones so as to not alienate the drone industry by passing reactionary, burdensome, and restrictive legislation that will prevent new businesses and jobs from being created.

Instead, state lawmakers need to strike a balance that allows the use of drones for commercial and recreational use while addressing citizen concerns. Those concerns should be addressed through a cautious and thoughtful approach and consideration before enacting laws that affect drone operations as courts will examine the text of the statutes involved, as well as the purposes and concerns addressed by the statute.

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.

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Mark J. Connot
Jason J. Zummo
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