State Drone Laws: a Legitimate Answer to State Concerns or a Violation of Federal Sovereignty

JurisdictionUnited States,Federal
Publication year2015
CitationVol. 31 No. 2

State Drone Laws: A Legitimate Answer to State Concerns or a Violation of Federal Sovereignty

Ray Carver

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Ray Carver*


In 2012, in an effort to embrace new technology and to develop the infrastructure for the use of next-generation technology,1 Congress passed the Federal Aviation Administration (FAA) Modernization and Reform Act of 2012 (the Act).2 While it intended to prepare the aviation industry for advances in the field, the Act underscored a tension that had been building domestically regarding the proper domestic use of "drones" or, more accurately, unmanned aircraft systems (UAS).3

Among other initiatives, the new law instructed the FAA to develop a plan to "accelerate the integration of civil unmanned aircraft systems into the national airspace systems."4 Its passage

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coincided with several other privacy and security debates, including the use of weaponized UASs on the battlefield and the revelation that the National Security Administration (NSA) was gathering data on U.S. citizens.5 These controversies have only heightened the apprehension among state and local officials about the use of UASs in domestic airspace.6

In response, many states and municipalities have passed laws regulating the use of UASs and, in some cases, have banned their flight completely.7 Most of the laws directly address the fear that UASs will be used by law enforcement for warrantless surveillance or will be weaponized for more lethal purposes against U.S. citizens.8 However, other lawmakers have taken less nuanced approaches and have proposed banning them from flying over towns or even giving citizens licenses to shoot them out of the sky.9

While addressing their constituents' concerns, lawmakers may encroach on the sovereignty of the federal government.10 Congress

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maintains supremacy over state laws when it expresses its intent to preempt or its intent is implied either through conflict or when the "field" has been taken up by the enactment of federal laws and regulations.11 Congress has expressly asserted "exclusive sovereignty" over the regulation of airspace.12 Although the statutory language seems to demonstrate Congress's intent to preempt all state laws, the U.S. Supreme Court has determined that rather than asserting a general preemption, any determination will be based on the pervasiveness of the regulations on a case-by-case basis.13 When evaluating pervasiveness, courts consistently note the extent and intensity of federal regulation in the aviation field but reiterate that there is often room for state laws as well.14

Therefore, the answer as to whether any room remains for states to regulate UASs hinges on which subfield within aviation that state laws are regulating and the pervasiveness of the federal regulations.15 If the laws are deemed to regulate airspace or safety, the voluminous regulations currently in place preempt the state law from enforcement.16 However, if the law regulates a traditional state arena

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or an area that the FAA has not addressed, the local laws may survive.17

In Part I, this Note surveys current federal laws and proposed state and local statutes regarding UAS use to determine the extent that the federal government has asserted its control.18 In Part II, this Note examines whether the current federal laws contain any possible express preemptions.19 After analyzing the current case law regarding conflict and field preemption in aviation cases, Part III addresses what states may do to avoid subjecting their laws to a federal preemption.20


Although there have been major developments in technology over the last decade, the development of UASs has been slow, in part, because of a lack of guidance from Congress and the FAA.21 Nevertheless, in the last several years the Department of Defense has used UASs for surveillance and even strikes on enemy combatants in other countries.22 The civil use of UASs over domestic airspace has not been as extensive; however, the FAA anticipates as many as 30,000 UASs will be in use by 2030.23 This expected increase is

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attributable to new technological developments combined with the various possible uses in law enforcement and civil and commercial arenas.24 Realizing the United States was not ready for the increase due to a lack of infrastructure and regulation, Congress passed the Act not only to develop technology for UASs, but also to develop an infrastructure to usher in a new era of aviation.25

The law's passage coincides with rising concern over the limits of the U.S. government's power, as reflected in the political debates regarding the authority of the military to use UASs to strike U.S. citizens as well as the ability of the NSA to collect large amounts of data on citizens.26 In March 2013, Senator Rand Paul's twelve-hour filibuster during hearings for nomination of the CIA director reflected public apprehension.27 In his speech, Senator Paul expressed concern about the power of the federal government and its ability to spy on and even strike its own citizens.28 His sentiment

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engrossed the nation and spurred the trend of legislation limiting the use of UASs over domestic soil.29 By the end of 2013, forty-two states had introduced legislation addressing UASs, and thirteen states had enacted laws that regulate either public or civil UAS flight.30

In 2013, Texas and Virginia were among the first states to pass anti-UAS legislation.31 Soon afterward, several states and municipalities rushed to pass their own statutes.32 Anti-UAS laws take many forms, but generally fall into one of three types: 1) they ban law enforcement's use of UASs for surveillance;33 2) they ban UASs equipped with weapons;34 or 3) they ban UAS use altogether.35

A. Preemption

The issue of preemption is rooted in the Supremacy Clause of the Constitution, which states that the "laws of the United States . . . shall be the supreme law of the land."36 Therefore, when a court finds a federal law to have preempted state law, the court will declare the

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state law void.37 The courts will only find the federal law preempts the state law when there is evidence that Congress intended to preempt the state law.38 In straightforward cases, Congress expresses its intent to preempt in the form of a preemption clause.39 In the absence of a preemption clause, courts must determine whether Congress has implicitly preempted a state law.40 The courts may infer such intent from Congressional action either through a conflict between two laws or by finding that Congress has taken up the "field."41

1. Conflict Preemption

Conflict preemption exists where state and federal law directly conflict, giving rise to an inference that Congress intended federal law to preempt state law.42 Therefore, in cases where the court finds that a state statute conflicts with a federal law, the federal law supersedes the state's statute.43

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State law can conflict with federal law by making compliance with both either a "physical impossibility"44 or by standing as an obstacle to fulfilling the "purpose and objectives" of the federal law.45 If the state law frustrates the federal government's purpose in passing the law or makes the enforcement of that law more difficult, the federal law or regulation will preempt it.46

2. Field Preemption

When laws do not directly conflict and Congress has not expressed its intent, it leaves only the possibility of a field preemption.47 Here, courts will infer intent when the federal laws and regulations are "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it."48

Courts first determine which level of the government traditionally asserts control over the area.49 When the field is one "the States have

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traditionally occupied," there is an assumption that the state law is not preempted.50 However, the reach of the federal regulation may overcome this assumption.51

Next, courts analyze the scope and pervasiveness of the federal law or agency regulation.52 If Congress has regulated the entire field, courts find that the federal government intends to preempt even though, traditionally, the state may have controlled the arena.53 Therefore, if states have traditionally controlled the arena, it will not be preempted, unless the federal government has either expressed a desire to preempt state actions or has enacted so many regulations on the topic that no room remains for states to regulate.54 Although the amount and scope of aviation regulations appear to be vast,55 the

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courts have determined that there remains room for state laws depending on the pervasiveness of the regulations in that particular area within aviation.56

B. Preemption as Applied to Aviation Cases

Congress has expressly asserted "exclusive sovereignty of airspace of the United States."57 Even though Congress clearly expressed its purpose in asserting control over airspace, courts emphasize that there is no general express preemption in the broader field of aviation.58 Other than "sovereignty of airspace," only one express preemption exists, and it involves the price, route, or service of an air carrier.59 Accordingly, any preemption regarding UAS usage will likely rely on a field or conflict preemption, unless it is deemed a regulation of airspace or the operation of an air carrier.60

In addition, federal statutes include a savings clause that purports to leave issues involving torts and contracts to the states.61 Revised and shortened in 1994 with the reorganization of Title 49,62 the new

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language now simply states that "[a] remedy under this part is in addition to any other remedies provided by law."63 Notwithstanding the language, appellate courts have been split on the issue of preemption in tort and contract claims.64 Most recently...

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