“To Kickstart Drone Deliveries, Give Cities and States Regulatory Flexibility”
By Brent Skorup and Connor Haaland, courtesy of the Mercatus Center
Drone delivery services are coming to US towns. The technology is ready and operators have been making thousands of deliveries in rural China and medical deliveries in Rwanda. (We are seeing the “technology leapfrog” effect for drone delivery where, much like for cellphones, middle-income countries adopt some technologies at faster rates than high-income countries.) US law and policy is not ready for mass drone deliveries, though lawmakers and regulators are starting to respond, as our colleague Bob Graboyes and his co-authors point out in forthcoming Mercatus research.
The FAA has approved companies like Flytrex, Wing, and UPS to commence drone deliveries in certain locations in North Carolina and Virginia. In anticipation of future legal conflicts, last week, Senator Mike Lee (R-UT) introduced a bill at the National League of Cities headquarters, the Drone Integration and Zoning Act, that seeks to bring clarity to an uncertain regulatory issue: how will the federal government and states cooperate when it comes to drone delivery services?
The bill would codify existing practices and legal principles into federal law. The critical provisions would grant states authority to regulate drone operations below 200 feet above the ground, while maintaining federal authority to regulate operations above 200 feet.
It’s a controversial idea—recognizing state authority over drone operations—but a new framework is needed because drones are a shock to the system. Under existing law, the FAA exclusively manages all “navigable airspace.” That framework worked acceptably for decades because aircraft are typically hundreds or thousands of feet above homes. Drones, however, make all outdoor airspace, including the airspace right above your backyard, “navigable airspace”—a massive expansion of FAA authority that conflicts with custom and principles of property law.
As the Supreme Court said in a 2010 takings case,
“Generally speaking, state law defines property interests, including property rights in navigable waters and the lands underneath them.”
In fact, for decades, states have actively regulated low-altitude airspace and even participated in airspace markets. In our forthcoming survey of state laws with Trace Mitchell and Will Gu we’ve found, for instance, that at least 21 states expressly recognize landowners’ property interest in airspace above their land. Further, 23 states have “avigation easement” laws to allow non-disruptive flights over residents’ land. At least 20 states allow state authorities to lease airspace above state and local roadways.
Unsurprisingly, then, states and cities have exercised authority over airspace and regulated drone operations in recent years. Oregon law allows residents to “take action” against anyone operating a drone within 400 vertical feet of their property. The municipality of Greenfield, Wisconsin prohibits drones within 500 vertical feet of any festival, protest, event, picnic, or public assembly. Similar laws are in place in places like Narragansett, RI, Cherry Hills, CO and Schaumburg, IL.
Giving states and cities a greater role in drone operations and infrastructure is a political and legal necessity. To accelerate drone services nationwide, states need to have a bigger say in crafting policy. A federal-state sharing of authority, like the framework in the Lee bill, would give municipalities and states the flexibility to determine if they would like to liberalize their airspace and try to attract more drone-related services. At the same time, cities and states could have authority to respond to citizens and local concerns about drones buzzing over roads, parks, and backyards.
As we’ve written before, states and cities have a lot of work to do before widespread drone delivery and urban air mobility. A great first step would be for states to form emerging aviation technology committees to explore and anticipate future drone needs, including electric grid upgrades, 5G deployment, transportation infrastructure, and noise laws. The sooner cities and the federal government are moving together on drone and urban air mobility policies, the better.
Brent Skorup is a senior research fellow at the Mercatus Center at George Mason University. His research areas include transportation technology, telecommunications, aviation, and wireless policy. He serves on the FCC’s Broadband Deployment Advisory Committee and on the Texas DOT’s Connected and Autonomous Vehicle Task Force. He is also a member of the Federalist Society’s Regulatory Transparency Project.