The Federal Aviation Administration (FAA) recently offered new guidance on the boundaries of federal, state, and local authority to regulate uncrewed aircraft systems (UAS or drones). The FAA's new analysis resolves several legal questions that have arisen since the agency last published a Fact Sheet on this topic nearly eight years ago. It outlines robust federal preemption in aviation safety and airspace efficiency, while delineating roles for state and local governments that are - overall - clearly and appropriately circumscribed.

The FAA's long-awaited revised discussion of the scope of federal preemption and state and local authority comes in a new Fact Sheet released on July 14 by the FAA's Office of the Chief Counsel. The document updates and replaces prior guidance on this topic that was published in a 2015 fact sheet.

In the updated Fact Sheet, the FAA continues to assert broad preemptive authority over airspace regulation. Overall, the document makes significant strides in clarifying the legal landscape. The Fact Sheet should be a helpful resource for state and local lawmakers, industry and other stakeholders, courts, and others looking to determine how states and localities can address policy concerns related to UAS operations in their communities without running afoul of federal law.

Why Does the FAA Have a Drone Law Preemption Fact Sheet?

As both fact sheets explain, Congress has long vested the FAA with broad and exclusive legal authority to regulate "airspace use, management and efficiency, air traffic control, safety, navigational facilities, and aircraft noise at its source." In 2012, Congress extended this mandate into the then-nascent world of UAS and directed the FAA to develop a comprehensive plan and regulations to integrate UAS into the national airspace.

Following Congress' UAS directive, while the FAA worked to develop enabling regulations for UAS operations, states and localities began to consider whether they should likewise attempt to regulate the nascent technology. Debates emerged as to whether the compact, nimble nature of small UAS and the low altitudes at which they would conduct operations under FAA regulations merited new or revised laws at the state and local level - and whether localities could even adopt such laws given the FAA's role as the nation's sole aviation regulator. In 2015, the FAA published the first fact sheet to "provide essential information about the Federal regulatory framework for use by States and localities when considering enacting laws affecting UAS."

In the years following the first fact sheet, as the new Fact Sheet explains, "[s]tate and local jurisdictions continue[d] to explore the regulation of UAS," with nearly every state enacting some type of law related to UAS. Recognizing that "some jurisdictions have enacted or are considering laws that raise preemption issues," and that the Chief Counsel's office "has fielded many questions from state officials and legislators, local jurisdictions," and other stakeholders in the years since the first fact sheet was released, the FAA adopted the new Fact Sheet in July 2023 to more clearly articulate the scope of federal authority in this area and to clarify lingering areas of uncertainty.

Notable Changes in the New Fact Sheet

While the FAA's new guidance is similar to the 2015 fact sheet, there are several notable differences that demonstrate the federal government's intent to clip the wings of state and local regulators when it comes to UAS regulation and laws that impact the airspace generally.

The Scope of Federal Authority. The updated guidance goes several steps beyond the 2015 fact sheet, unequivocally recognizing that "authority to regulate aviation safety and the efficient use of the airspace by aircraft [including UAS]" belongs exclusively to the FAA and that "[a]ttempts by state and local governments to regulate in those fields are preempted." The 2015 fact sheet, in contrast, focused more on the policy rationale for avoiding "fractionalized control of the navigable airspace," and tended away from definitive statements, instead pointing to areas where prospective state and local laws "should be carefully considered" to ensure consistency with federal law or where "consultation with the FAA is recommended."

The updated Fact Sheet also has a new section on "general principles" of federal law, which clarifies several aspects about the scope of federal preemption in this area that have been misunderstood. In particular, the Fact Sheet explains that:

  • Federal law occupies the fields of both aviation safety and airspace efficiency;
  • Consistent with this occupation of the field, "[t]he FAA has exclusive authority to regulate airspace efficiency for UAS at low altitudes" the same way it does for traditional, crewed aircraft at higher altitudes;
  • In the context of UAS, the "navigable airspace" - a term of art in aviation law describing the airspace in which there is a "public right of transit," and which is traditionally defined as the "airspace above the minimum altitudes" set by FAA regulations - "extends to the ground";
  • State and local regulation of UAS can be barred by conflict preemption in addition to (or in lieu of) field preemption, including where such regulation is "an obstacle to the FAA's exercise of its airspace authority"; and
  • State and local laws are expressly preempted where they "relate[] to" (or "significantly impact[]") the "prices, routes, and services" of "air carriers." (Air carriers are a special category of aircraft operator that has been given economic authority by the U.S. Department of Transportation to carry people or property.) Because UAS can be air carriers, such as delivery drones used in interstate commerce, UAS regulation at the state or local level may be preempted as applied to commercial operators even if it would not be preempted as applied to others, such as recreational operators.

Types of Laws Subject to Preemption. The FAA then provides examples of state and local restrictions that would be preempted pursuant to the legal framework laid out in the Fact Sheet. This section replaces and expands upon a portion of the 2015 fact sheet that identified certain types of regulations for which "consultation with the FAA [was] recommended," and asserts more definitively that these laws "would be subject to federal preemption." Under the new Fact Sheet, it is the FAA's view that the following types of laws and regulations are preempted:

  • Laws aimed at regulating aviation safety or airspace efficiency, including laws:
    • Regulating UAS operations or restricting flight altitude or flight paths in order to protect the safety of individuals and property on the ground or aircraft passengers, or in order to ensure the efficient use of the airspace by UAS and/or other aircraft;
    • Implementing UAS traffic control systems;
    • Designating "highways" or "routes" for UAS;
    • Selling or leasing UAS-related air rights above roadways;
    • Regulating UAS markings;
    • Establishing a licensing scheme for UAS pilots;
    • Requiring air safety education or training;
    • Imposing requirements for the safe manufacturing of UAS; or
    • Mandating safety-related equipment such as geo-fencing.
  • Laws aimed at other objectives that "impair the reasonable use of airspace by UAS." Whether such a law is preempted will depend on its impact on aviation safety and the ability of UAS to use or traverse the airspace. To illustrate this point, the Fact Sheet gives three examples:
    • Likely preempted: (1) "a privacy-related ban on UAS operations over an entire city";
    • Likely permissible: (2) a "privacy-related restriction" that is "applied to the lower altitudes over facilities where people could likely have an expectation of privacy"; and (3) "tailored security-related laws" restricting operations "over open-air water treatment facilities or certain types of critical infrastructure," again applied only "to the lower altitudes" and that "still permitted UAS overflight . at higher altitudes."

Laws Not Subject to Preemption. Nevertheless, the FAA also recognizes that despite broad federal preemption in the aviation space relating to both safety and efficient use, "federal law does not preempt altogether any state regulation purporting to reach into the navigable airspace." Accordingly, there may be situations where state and local UAS regulation can be implemented without violating federal law. To this end, the Fact Sheet clarifies that "restrictions on how UAS are utilized (i.e., conduct) instead of where they may operate in the airspace would more likely be consistent with Federal preemption principles."

The Fact Sheet provides examples of laws that may not be subject to preemption. This list of examples replaces and builds on a list from the 2015 fact sheet that described "[l]aws traditionally related to state and local police power," which the old fact sheet said are "generally . not subject to federal regulation." Per the updated Fact Sheet, the following may be permissible, if appropriately implemented:

  • Laws aimed at objectives other than aviation safety or airspace efficiency that do not impair the reasonable use by UAS of the airspace - in other words, the flip side of the laws identified above that would be preempted because they do impair UAS use of the airspace.
    • The Fact Sheet gives several examples of types of laws that could fall into this category including laws related to land use or zoning, voyeurism, trespass, "the exercise of other police powers," search and rescue, delivery of prison contraband or controlled substances, wildfire suppression, taking photographs of critical facilities, criminal activity, and "law enforcement operations," among others.
    • This category also would include the "privacy-related" or "security-related" restrictions that the FAA suggests above would likely be permissible.
  • Laws that restrict operations by UAS in the "immediate reaches" of property to the extent that such operations "substantially interfere" with the property owner's actual use and enjoyment of the property.
    • This is notable because it incorporates the standard for aerial trespass that originated in a 1946 Supreme Court case, United States v. Causby. While some have suggested that the Causby standard is somehow inapplicable or should be reinterpreted or revised to assess trespass by UAS, the FAA's new Fact Sheet clearly adopts this long-standing legal test.
  • Laws regulating the location of UAS takeoff and landing areas and the location of the operator during flight.
  • "Ministerial" UAS registration requirements.

What Does This Mean for Drone Regulation Going Forward?

While the new Fact Sheet clears up many questions that have arisen about the balance of federal and state authorities in the context of drone regulations, it does leave some gray areas that will need to be worked out in practice. A major area of contention is likely to be laws aimed at objectives other than aviation safety and airspace efficiency, which are invalid only if they "impair the reasonable use of airspace by UAS." It is likely that most debates around the lawfulness of new drone regulations will center around whether UAS operations are sufficiently "impaired" to result in preemption.

The Fact Sheet is also a bit oversimplified in places - for instance, it notes that states and localities have authority to regulate takeoff and landings of UAS as well as the permissible operational locations of UAS pilots on the ground. While this is correct, this authority is not unlimited. A city-wide ban on drone takeoffs and landings is no different, practically, from a ban on UAS operations themselves, particularly given the limited flight range of battery-operated UAS under current technologies. The framing of this issue in the Fact Sheet could lead localities to incorrectly conclude they have unfettered discretion to regulate in this area irrespective of the consequences for aviation safety and airspace efficiency.

Overall, however, the Fact Sheet is a helpful and accurate guidance document that brings welcome clarity in this area. It continues to offer a broad view of federal preemption. In so doing, it coheres with relevant case law and precludes arguments that some advocates have tried to make to give more room for state and local UAS regulation.

The Fact Sheet also, notably, is largely consistent with how the UAS industry has approached these issues from a legal and policy perspective. For instance, the approach to state and local UAS regulation put forth in Drone Prepared - an industry-driven policy initiative that Wiley Rein LLP helped to develop in conjunction with the Association for Uncrewed Vehicle Systems International (AUVSI) - coheres well with the guidance in the Fact Sheet. The FAA's view of the law, including the scope of federal preemption and the applicability of the Causby aerial trespass standard, is similarly consistent with the legal white paper, authored by Wiley's Sara Baxenberg and Josh Turner, that underpins the Drone Prepared campaign. To that end, the Fact Sheet similarly rebuts the legally unsound views of other advocates who have pushed for solutions such as drone highways.

While some areas of uncertainty remain, the new Fact Sheet makes significant progress in resolving legal debates and is likely to be a helpful resource for state and local lawmakers, other UAS stakeholders, and courts moving forward.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.