Drone Preemption – Federal vs. State Power To Regulate Drones

The U.S. Constitution established a unique form of government involving a division of powers between the federal government and the states. The advent of new technologies, however, has challenged the allocation of regulatory power between federal and state governments. A litany of groundbreaking technologies—steamboats, railroads, airplanes, automobiles, telecommunications, the Internet— has raised tough questions about a long-standing debate: whether a single national body of federal law or a mix of differing state laws would better advance the public interest. Now, drone technology is poised to be one of the fastest growing industries in U.S. history, with the potential to revolutionize commercial activity as well as the public's perspective of robotics and autonomous systems. In doing so, drones raise similar questions about the appropriate balance between federal and state regulation.

As commercial uses of drones continue to develop, their popularity is skyrocketing. Studies estimate that during the first decade following drone integration into the national airspace system (NAS), the industry will create more than 100,000 high-paying jobs and contribute nearly $100 billion to the nation's economy.1 The proliferation of this remarkable technology is being impeded, however, by a muddled legal and regulatory framework that is the product of old controversies over federal and state power. Numerous state and local laws regulating drones conflict with both the Federal Aviation Administration's (FAA's) assertion of exclusive authority over the national airspace and its resolve to establish a single national policy for drones.2

In 2012, Congress passed the FAA Modernization and Reform Act (FMRA), which required the FAA to integrate drones into the NAS.3 At the time of the FMRA's passage, public concern about domestic drone use was at an all-time high. The media portrayed drones as having military applications, and the controversy surrounding the National Security Agency (NSA) collecting data on U.S. citizens was exposed.4 In reaction, many states and cities passed laws directly targeting drones, including laws that regulate or prohibit persons from operating, weaponizing, or using drones for spying.5

In 2015, legislatures in 45 states considered 168 bills affecting drones, while 20 states enacted 26 laws regulating drone use.6 Yet many of those laws may encroach on the sovereignty of the federal government. Whether federal law and regulation will preempt state and local laws vis-à-vis drones is an emerging issue.7

This article first describes how federal preemption currently applies in the aviation context, and then analyzes the potentially fraught relationship between the interests of federal, state, and local governments in regulating drones. The article next highlights a recently introduced federal legislative measure that could provide a path to reconciling those regulatory interests. The article concludes that state and local authorities should regulate drone uses with restraint, recognizing the need to encourage, not suffocate, the burgeoning drone industry and the breadth of federal regulatory authority over aviation.

Aviation and Federal Preemption

The doctrine of preemption derives from the Supremacy Clause of the U.S. Constitution, which states: "This Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land . . . anything in the Constitution or laws of any State to the contrary notwithstanding."8 Congressional intent to preempt state law can be either express or implied—that is, explicitly stated in a statute's language or implicitly contained in its structure and purpose.9 When a court determines that federal law preempts state law, the state law must yield;10 at its core, the question is one of statutory intent.11

The U.S. Supreme Court recognizes three types of preemption: (1) express preemption, (2) implied conflict preemption, and (3) implied field preemption. Express preemption is when the language of the federal statute explicitly demonstrates Congress's intent to preempt state law.12 The FMRA does not contain an express preemption clause. In fact, within the aviation arena, statutes containing express preemption provisions are rare, the most notable of which being the Airline Deregulation Act of 1978. That Act prohibits states from enacting laws "related to a price, route, or service of an air carrier that may provide air transportation."13 In addition, Congress has expressly asserted "exclusive sovereignty of airspace of the United States," and placed "exclusive authority for regulating the airspace above the United States with the [FAA]."14 Although that clause seems to show Congress's intent to preempt all state laws, courts have held that there is no general express preemption in the field of aviation.15 Instead, courts may infer intent either through a conflict between a federal law and a state law, or by finding that Congress has occupied the "field."16

Under implied conflict preemption, state law is preempted to the extent that it actually conflicts with federal law.17 This occurs when it is physically impossible for a private party to comply with both state and federal requirements,18 or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."19 Under the physical impossibility doctrine, even if one sovereign's law intends to give a person a right to engage in behavior that the other sovereign's law intends to forbid, the U.S. Supreme Court has made clear that preemption does not ipso facto result.20 This is so because a person could comply with both federal and state law simply by abstaining from the behavior.21 Hence, when federal and state laws are mutually inconsistent, it is physically possible to comply with both unless federal law requires what state law forbids (or vice versa).22 Simply put, the physical impossibility doctrine is "vanishingly narrow" and rarely applied by courts.23

Under the frustration of purpose doctrine, any state law that "stands as an obstacle" to the accomplishment of a federal statute's objective would be preempted.24 The FMRA's objective is to integrate civil drones into the NAS.25 Suppose a state law banned the civil use of drones entirely. That law would be subject to preemption: private sector drone use has risen considerably, and any such ban would only hinder the FAA's efforts to integrate drones.26 In contrast, state laws prohibiting persons from weaponizing drones or using drones for voyeurism arguably would not be preempted.27 Those laws do not ban the operation of drones...