by BRENT SKORUP <\/p>\n\n\n\n
There\u2019s been exciting progress in US drone policy in the past few months. First, the FAA in April announced surprising new guidance<\/a> in its Aeronautics Information Manual, re: drone airspace access. As I noted in an article for the State Aviation Journal<\/a>, the new Manual notes:<\/p>\n\n\n\n There can be certain local restrictions to airspace. While\nthe FAA is designated by federal law to be the regulator of the NAS [national\nairspace system], some state and local authorities may also restrict access to\nlocal airspace. UAS pilots should be aware of these local rules.<\/p>\n\n\n\n That April update has been followed up by a bigger, drone policy update from FAA. On July 14, the FAA went further than the April guidance and updated and replaced its 2015 guidance<\/a> to states and localities about drone regulation and airspace policy.<\/p>\n\n\n\n In this July 2023 guidance<\/a>, I was pleasantly surprised to see the FAA recognize some state and local authority in the \u201cimmediate reaches\u201d airspace. Notably, in the new guidance the FAA expressly notes that that state laws that \u201cprohibit [or] restrict . . . operations by UAS in the immediate reaches of property\u201d are an example of laws not subject to conflict preemption.<\/p>\n\n\n\n A handful of legal scholars\u2013like ASU Law Professor Troy Rule<\/a> and myself<\/a>\u2013have urged federal officials for years to recognize that states, localities, and landowners have a significant say in what happens in very low-altitude airspace\u2013the \u201cimmediate reaches\u201d above land. That\u2019s because the US Supreme Court in US v. Causby<\/a> recognized that the \u201cimmediate reaches\u201d above land is real property owned by the landowner:<\/p>\n\n\n\n [I]t is obvious that, if the landowner is to have full\nenjoyment of the land, he must have exclusive control of the immediate reaches\nof the enveloping atmosphere. \u201c\u2026As we have said, the flight of airplanes, which\nskim the surface but do not touch it, is as much an appropriation of the use of\nthe land as a more conventional entry upon it.<\/p>\n\n\n\n Prior to these recent updates, the FAA\u2019s position on which rules apply in very low-altitude airspace\u2013FAA rules or state property rules\u2013was confusing. The agency informally asserts authority to regulate drone operations down to \u201cthe grass tips\u201d; however, many landowners don\u2019t want drones to enter the airspace immediately above their land without permission and would sue to protect their property rights. This is not a purely academic concern: the uncertainty about whether and when drones can fly in very low-altitude airspace has created damaging uncertainty for the industry. As the Government Accountability Office told Congress in 2020<\/a>:<\/p>\n\n\n\n The legal uncertainty surrounding these [low-altitude\nairspace] issues is presenting challenges to integration of UAS [unmanned\naircraft systems] into the national airspace system.<\/p>\n\n\n\n With this July update, the FAA helps clarify matters. To my\nknowledge, this is the first mention of \u201cimmediate reaches,\u201d and implicit\nreference to Causby, by the FAA. The update helpfully protects, in my view,\nproperty rights and federalism. It also represents a win for the drone\nindustry, which finally has some federal clarity on this after a decade of\nuncertainty about how low they can fly. Drone operators now know they can\nsometimes be subject to local rules about aerial trespass. States and cities\nnow know that they can create certain, limited prohibitions, which will be\nhelpful to protect sensitive locations like neighborhoods, stadiums, prisons,\nand state parks and conservation areas.<\/p>\n\n\n\n As an aside: It seems possible one motivation for the FAA adding this language is to foreclose future takings litigation<\/a> (a la Cedar Point Nursery v. Hassid<\/a>) against the FAA. With this new guidance, the FAA can now point out in future takings litigation that they do not authorize drone operations in the immediate reaches of airspace; this FAA guidance indicates that operations in the immediate reaches is largely a question of state property and trespass laws.<\/p>\n\n\n\n On the whole, I think this new FAA guidance is strong, especially the first formal FAA recognition of some state authority over the \u201cimmediate reaches.\u201d That said, as a USDOT Inspector General report to Congress<\/a> pointed out last year, the FAA has not been responsive when state officials have questions about creating drone rules to complement federal rules. In 2018, for instance, a lead State \u201cparticipant [in an FAA drone program] requested a clarification as to whether particular State laws regarding UAS conflicted with Federal regulations. According to FAA, as of February 2022 . . . FAA has not yet provided an opinion in response to that request.\u201d<\/p>\n\n\n\n Four years-plus of silence from the FAA is a long time for a\nstate official to wait, and it\u2019s a lifetime for a drone startup looking for\nlegal clarity. I do worry about agency non-answers on preemption questions from\nstates, and how other provisions in this new guidance will be interpreted.\nHopefully this new guidance means FAA employees can be more responsive to\ninquiries from state officials. With the April and July airspace policy\nupdates, the FAA, state aviation offices, the drone industry, and local\nofficials are in a better position to create commercial drone networks\nnationwide, while protecting the property and privacy expectations of\nresidents.<\/p>\n\n\n\n