Flight and Federalism: Federal Preemption of State and Local Drone Laws

Small, unmanned aircraft referred to as “drones” are becoming increasingly common in the skies above the United States. Their increasing ubiquity has been driven by the wide variety of industries and tasks to which they can be applied, but it has also drawn the attention of government. Where Amazon.com sees the potential for packages delivered in thirty minutes or less, governments see crowded skies and clumsy pilots, to name only two potential risks associated with the widespread integration of drones into the national airspace. To that end, just as Amazon.com has ambitiously made use of the technology, state and local governments have begun to actively regulate drone use. The City of Chicago, for example, enacted an ordinance essentially banning drones within city limits. A major legal hurdle potentially stands in the way of those state and local efforts: The federal government has also regulated the commercial use of drones. The Federal Aviation Administration (FAA), guided by congressional direction to safely accelerate the process of integrating drones into the national airspace, promulgated comprehensive regulations governing commercial drone use. This overlap with state and local laws leads to issues of preemption. The doctrine of preemption reflects the principle that, in the United States, where a (valid, constitutional) federal law conflicts with a state or local law, the federal law supersedes its counterparts. This comment explores the issue of federal preemption of state and local drone laws. It concludes—based on a survey of preemption law, useful analogues from other areas of law, and first-of-its-kind drone preemption litigation—that restrictive drone laws like Chicago’s are preempted by the FAA regulations. Yet all is not lost for the state or local government wishing to have a say in matters of drone regulation. As this comment explains, there are strong arguments that state and local governments can regulate certain uses of drones, particularly in light of a doctrine known as the presumption against preemption. To that end, some state and local laws are clearly safe from preemption challenges. Others are just as clearly preempted. Finally, there is a category of state and local laws that fall somewhere in between those two extremes, for which the outcome of future preemption challenges is unclear