State officials and regulators who want to promote commercial drone services—such as infrastructure inspections and parcel delivery—hope to do so by creating drone highways to protect operators from trespass, nuisance, and takings lawsuits. Several state lawmakers in recent months have introduced legislation to create drone easements in the state-managed airspace above public roads.
Some common questions state lawmakers have may include the following.
Are Drone Operations Purely a Federal Matter?
No. Whereas states and cities have no authority over what happens in airspace hundreds or thousands of feet in the air, they have authority over drone infrastructure on the ground and over surface (that is, low-altitude) airspace.
The Federal Aviation Administration (FAA) recognizes, for instance, that states have authority to regulate drone operations on the grounds of trespass, privacy, and zoning. In 2017, the US Department of Transportation (DOT) established several drone pilot programs to allow states, cities, and tribal governments to experiment with regulatory regimes for drones. Federal regulators anticipate that some authority over drone management would fall to state and local authorities as drone operations proliferate.
Does the Federal Government Own All Airspace?
No. The federal government does not own the nation’s airspace. A federal court in 2020, for instance, rejected the arguments by drone operators that only the federal government can regulate surface airspace. This common misconception that the federal government owns all airspace arises because there is a federal law noting the US government has “exclusive sovereignty of airspace of the United States.” As the Supreme Court has held, this statute refers to sovereignty against other nations, not against the US states.
On the contrary, the Supreme Court holds that landowners own the “immediate reaches” of airspace above their land. State governments and courts have not firmly established where the “immediate reaches” end. However, it is clear that landowners—including residents, state and local agencies, utility companies, and railroads—own the surface airspace and right-of-way easements above their land.
What Can State Policymakers Do to Bring Drone Services to Their State?
Drone airspace use involves a mix of federal, state, and local authority. State officials should, in collaboration with the FAA, create the following resources.
Drone Program Offices
States should create drone program offices within the state department of aviation as eight states have done. These program offices can serve as a one-stop shop for drone operators in the state to comply with state and local rules. The program office can also serve as an advocate for operators in the state to federal regulators and recruit companies to their state.
Drone Easements
State DOTs manage more than 8 million miles of roadways and rights of way. Many states and cities have laws that allow regulators to create and lease “avigation easements”—corridors of airspace—to private companies. States should use these laws and collaborate with the USDOT and industry to lease avigation easements to drone companies. Permitting drone operations above private land exposes the state or locality to takings lawsuits—drone easements above private roads eliminate that liability and financial risk.
Drone Sandboxes
Drone sandboxes are designated areas and aerial routes—created by regulators—away from airports and other safety hazards where drone operators are invited to test their services. They allow startups and local companies to fly real operations in order to improve their services and to show proof of concept to investors.