FAA Clarifies Preemption Position – State/Local Governments Can’t Regulate Aircraft Operations, But Drone Landing Sites are Fair Game

On July 20, 2018, the FAA issued a press release to clarify its position on federal preemption of state and local laws relating to unmanned aircraft systems (UAS).  The brief release reminds states and municipalities that they are preempted from regulating aircraft operations, including flight paths, altitudes, or navigable airspace.  On the other hand, however, the FAA acknowledges that states and local governments have the power to regulate landing sites for drones through their land use powers. 

The proliferation of drones has been accompanied by an increase in state and local laws to regulate drones.   In 2017 alone, 16 states enacted 24 drone-related laws, ranging from ranging from laws that requires the state aviation authority to develop rules where drones can takeoff and land to laws that allow municipalities to prohibit flights over a public water supply.

Certain state and local laws on UAS are preempted by federal law.  As explained in its 2015 Fact Sheet, the FAA generally takes the position that state and local regulation of operation or flight of aircraft and equipment and training for UAS are likely preempted.  Until more recently, the FAA largely remained silent on the divide between federal and state or local laws for UAS.

The July 20, 2018 press release does not change or deviate from FAA’s position on the roles and areas that are separately governed by federal or state/local laws.  It clarifies for states and municipalities that the FAA is unlikely to challenge a state or local law that regulates UAS landing areas as a power of the state or local police powers, such as zoning.  It also reiterates FAA’s position that states and municipalities generally should not be regulating the operation of aircraft.

The FAA reiterated this in its July 2018 comments to the Uniform Law Commission’s draft model drone tort laws.  The FAA rejected any endorsement of the draft tort laws and repeated its position that the FAA alone has exclusive control over the use of airspace as part of its authority to regulate safety.  Read more about the draft model drone tort laws and the FAA’s response in our [hyperlink: Insight].  This new release is further evidence of an increased willingness for the FAA to outline the boundaries of federal preemption 

Operators should closely follow state and local laws where they operate, but also understand the  developing interplay between those laws and federal regulation of UAS.  As the boundaries of federal preemption for UAS laws become increasing defined, the industry can better understand and more easily plan operations.