Policy Questions for an Emerging Drone Industry
Recent advancements in uncrewed aircraft system or “drone” technologies have prompted several large retailers to begin exploring potential commercial uses of drones. Most notably, US companies such as Amazon1Concepción de León, “Drone Delivery? Amazon Moves Closer with F.A.A. Approval,” New York Times, August 31, 2020, https://www.nytimes.com/2020/08/31/business/amazon-drone-delivery.html., Walmart2Will Feuer, “Walmart Expanding Drone Delivery Network to Six States,” Wall Street Journal, May 24, 2022, https://www.wsj.com/articles/walmart-expanding-drone-delivery-network-to-six-states-11653401319., and Alphabet’s Wing3Jon Porter, “Alphabet’s Wing Drones Get FAA Approval to Make Deliveries in the US,” The Verge, April 23, 2019, https://www.theverge.com/2019/4/23/18512658/google-alphabet-wing-drone-delivery-service-faa-approval-commercial-deliveries. are increasingly seeking authorizations from the Federal Aviation Administration (FAA) to begin using drones to deliver retail goods to homes and businesses. Most of these commercial drones weigh less than 55 pounds and have fixed-wing or multirotor designs4Small Unmanned Aircraft Systems, 14 CFR 107.3 (2021)., and they increasingly run on battery power.5Ashleigh Townsend, Immanuel N. Jiya, Christiaan Martinson, Dmitri Bessarabov, and Rupert Gouws, “A Comprehensive Review of Energy Sources for Unmanned Aerial Vehicles, Their Shortfalls and Opportunities for Improvements,” Heliyon 6, no. 11 (November 2020).
Replacing many of the nation’s on-ground delivery vehicles with delivery drones could produce substantial economic, environmental, and other benefits. Globally, the drone delivery services market is projected to grow to more than $5.3 billion by 2025.6The Business Research Company, Delivery Drone Services Global Market Report 2021: COVID-19 Implications and Growth (London: The Business Research Company, 2021), https://www.reportlinker.com/p06144622/Delivery-Drone-Services-Global-Market-Report-COVID-19-Implications-and-Growth.html. Because autonomous drones can beeline goods “as the crow flies” over the rooftops of homes and businesses to their destinations without any onboard pilot, they could significantly reduce delivery costs and times in certain settings. Drone technologies might also lessen road congestion and benefit the natural environment by reducing the greenhouse gas emissions associated with local goods delivery services.7Wen-Chyuan Chiang, Yuyu Li, Jennifer Shang, and Timothy L. Urban, “Impact of Drone Delivery on Sustainability and Cost: Realizing the UAV Potential through Vehicle Routing Optimization,” Applied Energy 242 (2019): 1164–1175. Drone-assisted delivery services could even enhance some Americans’ access to food, medicine, and other important items, especially for those living in food deserts and rural areas.8Shannon Clark, “How Drones Could Conquer Food Deserts,” Maryland Today, October 26, 2021, https://today.umd.edu/how-drones-could-conquer-food-deserts.
Although civilian drone technologies create exciting new possibilities for America’s transportation and goods delivery industries, courts and policymakers are only beginning to confront the complex legal issues they present. Among other things, corporate America’s efforts to roll out drone-assisted delivery have been plagued by uncertainty about the scope of landowners’ rights to exclude drones from the low airspace immediately above their land.
Landowners have long-held common law rights to keep unwanted objects out of the space directly over their parcels.9Troy A. Rule, “Airspace in an Age of Drones,” Boston University Law Review 95 (2015): 155–208, https://www.bu.edu/bulawreview/files/2015/02/RULE.pdf. In the 1940s, the US Supreme Court expressly stated that landowners hold title to the “immediate reaches” of airspace above their land.10US v. Causby, 328 US 256, 266 (1946). It established that landowners own “at least as much of the space above the ground as they can occupy or use in connection with the land” and that they possess rights to keep out any unwanted aerial invasions in that space that would “subtract from the owner’s full enjoyment of the property.”11US v. Causby, 328 US at 264–265. These established property principles undergird longstanding legal doctrines governing condominiums, overhang encroachments, airport aviation easements, and other conflicts involving low-altitude airspace. The Supreme Court expressly reaffirmed these landowner rights in a recent case,12Cedar Point Nursery v. Hassid, 141 US 2063, 2073 (2021) (emphasizing that, as a legal matter, unwelcome invasions of low airspace are “in the same category as invasions of the surface” of land). and state courts have generally continued to affirm them as well—even when specifically applied to drones.13See generally Long Lake Township v. Maxon, 336 Mich. App. 521, 539-540 (2021) (holding that “landowners are still entitled to ownership of some airspace above their properties, such that intrusions into that airspace will constitute a trespass no different from an intrusion upon the land itself”). This decision was ultimately vacated and remanded on unrelated grounds. 2022 WL 4281509.
Unfortunately, the commercial drone industry and its allies—recognizing the potential obstacles that landowner airspace rights could create for drone delivery service providers—have aggressively advocated in recent years for policies that would ignore landowners’ long-held airspace rights. As described in more detail below, drone advocates have tried arguing that FAA authorizations legally entitle commercial drone operators to fly at low altitudes over others’ private land and totally ignore the objections of underlying landowners. Drone industry stakeholders have also persuaded some state legislatures to enact laws prohibiting municipalities from imposing local restrictions on commercial drone activities.14See, for example, Ariz. Rev. Stat. Ann. § 13-3729 (2021); 11 Del. C. § 1334€ (2021); Fla. Stat. § 330.41(3)(b) (2021); 1 Pa. Code §53-305(a) (2021); Utah Code Ann. §72-14-103 (2021). Despite these efforts, US commercial drone delivery operations have expanded more slowly than many had predicted.
This report summarizes the results of the Center for Growth and Opportunity’s January 2023 YouGov poll of 1,000 Americans designed to provide a new perspective on the continuing legal and policy debates surrounding the nation’s fledgling commercial drone industry (the “Drone Law Poll”). Among other things, the poll asked respondents for their views about landowners’ rights to exclude drones from above their land and about whether states and cities should have authority to regulate commercial drone activities within their boundaries. Its results reveal that the legal and regulatory structures the FAA and some major retailers envision for commercial drone operations are markedly out of step with the beliefs and preferences of landowners across the United States.
Drone Deliveries and Airspace Rights
Among the most notable insights from the Drone Law Poll is the sharp contrast between the drone industry’s views of landowner airspace rights and the views of ordinary Americans about those rights. The growing commercial use of drone technologies is elevating decades-old questions about landowners’ rights to exclude unwanted objects from the space directly above their land.15Rule, “Airspace in an Age of Drones,” 168–174. The FAA has controversially begun authorizing large retail companies to operate commercial drones in the airspace above thousands of American homes and businesses on the questionable premise that these authorizations preempt landowners’ airspace rights.16Christopher Mims, “Amazon, Alphabet and Others Are Quietly Rolling Out Drone Delivery across America,” Wall Street Journal, April 4, 2022, https://www.wsj.com/articles/amazon-alphabet-and-others-are-quietly-rolling-out-drone-delivery-across-america-11648872022. A few years ago, drone industry allies likewise helped to draft failed model state legislation that would have employed a nuisance-like multiple-factor analysis rather than simple trespass principles to govern conflicts involving drone overflights over others’ land.17National Conference of Commissioners on Uniform State Laws, “Draft Tort Law Relating to Drones Act,” June 19, 2018, https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=acc3dee9-7ab6-24e3-ee55-ad3e09a82c6a; US Government Accountability Office, “Unmanned Aircraft Systems: Current Jurisdictional, Property, and Privacy Legal Issues Regarding the Commercial and Recreational Use of Drones, Appendices I–VI,” September 2020, https://www.gao.gov/assets/B330570_Appendices.pdf. Results from a Drone Law Poll question about the scope of landowners’ airspace rights show that Americans view these airspace rights quite differently than how the FAA and drone industry advocates have tried to portray them in recent years.
Who Should Regulate Where and When Commercial Drones Fly?
The results of the Drone Law Poll also provide valuable insights on Americans’ views about which government actors are best suited to regulate commercial drone operations. The federal government—and specifically the FAA—is unquestionably best suited to control some aspects of commercial drone regulation. Among other things, imposing manufacturing specification requirements and performance standards for commercial drones at the federal level is sensible so that drone manufacturers can have certainty that their products will qualify for sale in all 50 states.19Troy A. Rule, “Drone Zoning,” North Carolina Law Review 95, no. 1 (2016): 133–200. Federal commercial drone registration requirements ensuring all commercial drones comply with a national remote identification system also valuably help to promote safety and accountability in this nascent industry.20Rule, “Drone Zoning,” 166–167. The FAA has already imposed federal drone registration and remote identification requirements. For details about these requirements, see Federal Aviation Administration, “How to Register Your Drone,” https://www.faa.gov/uas/getting_started/register_drone. Likewise, it is easy to justify federal laws restricting drone activities in national parks, near airports, and near military bases, federal prisons, federal borders, federally controlled critical infrastructure facilities, and similar sites.21Rule, “Drone Zoning,” 167–168.
However, in recent years the drone industry advocates have sought to extend the FAA’s drone regulatory jurisdiction well beyond that, suggesting at times that the agency’s regulatory power over flying objects extends all the way down to a “blade of grass” on the ground.22Darlene Ricker, “Taking Flight—Navigating Drone Laws Has Become a Growing and Lucrative Legal Niche,” American Bar Association Journal 103, no. 7 (2017): 56–63. The FAA has sought to justify such an aggressive federal preemption approach to drone regulation on the premise that empowering states and municipalities to locally regulate drones would create a “patchwork quilt” of differing laws that would overly complicate civilian drone activities.23Federal Aviation Administration, Office of the Chief Counsel, “State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet 1,” December 17, 2015, https://www.faa.gov/news/updates/?newsId=84369&omniRss=news_updatesAoc&cid=101_N_U. The agency’s preemption arguments are so extreme that one administrative law judge noted they would give the FAA regulatory jurisdiction even over backyard flights of paper airplanes and balsa wood toy gliders.24Huerta v. Pirker, Docket No. CP-217, at 3 (NTSB Mar. 6, 2014) (decisional order), http://www.ntsb.gov/legal/alj/Documents/Pirker-CP-217.pdf.
A related controversy in drone law and policy focuses on whether municipal governments should have supplemental authority to regulate where and when drones may fly within local neighborhoods. Given their superior knowledge about the distinctive features and preferences of their own communities, local government officials are arguably uniquely well suited to help regulate drone uses—just as they regulate land uses through zoning and related ordinances.25Rule, “Drone Zoning,” 176–178. Despite these potential advantages of local involvement, drone industry advocates have lobbied aggressively over the past decade for laws designed to largely prevent municipalities from regulating drones. A handful of states have even enacted such preemption laws, substantially limiting municipalities’ drone regulatory powers in those states.26See, for example, Ariz. Rev. Stat. Ann. § 13-3729 (2021); 11 Del. C. § 1334€ (2021); Fla. Stat. § 330.41(3)(b) (2021); 1 Pa. Code §53-305(a) (2021); Utah Code Ann. §72-14-103 (2021). Such laws, for instance, prohibit city governments from limiting the hours or areas where Walmart or Amazon delivery drones fly—even if local residents and officials strongly desire such restrictions.
When asked whether local governments should have power to regulate commercial drone activities within their city limits, Drone Law Poll respondents again expressed views that sharply contrasted with those of the FAA and commercial drone industry advocates. Incredibly, 84 percent of respondents indicated they favored some form of local drone regulation—a result that calls into question the FAA’s continued attempts to assert highly centralized federal drone regulatory authority and call for preemption of local drone laws.
Valuating Drone Flights’ Harms to Landowners
One other notable Drone Law Poll question provides interesting data about how much landowners value being able to exclude unwanted drones from their low airspace. The question asked respondents to quantify what amount of money they would need to receive to agree to allow regular drone flights over their homes. The question’s results provide some of the first available information about the degree of harm that commercial drone operations cause to underlying landowners. As shown below, only 14 percent of respondents indicated that they would be willing to allow retailers’ drones to fly repeatedly over their home for free—even if those drones were flying 200 feet above the ground. Sixty-eight percent expressed that they would need to be compensated by more than $1 per hour to agree to such drone overflights or that they would not agree to such overflights at any price.
Such FAA actions would ultimately shift highly valuable airspace exclusion rights from landowners to these powerful companies without compensating landowners for their loss of those rights.
Differences in Poll Results Based on Age, Gender, and Political Affiliation
One other set of notable insights from the Drone Law Poll relates to differences among genders and across age groups and political affiliations in their views on drones. On the whole, these differences suggest female Americans may be more concerned than males about the privacy impacts of drone operations above residential land and that older and more politically conservative Americans may be more concerned about drones’ threats to private property rights.
One interesting difference detectable in the poll results is that younger and more progressive Americans appear to be much more willing than older and more conservative Americans to let the FAA exercise broad authority over commercial drone operations. When asked whether the FAA should have power to preemptively authorize delivery drone operations in a community over local officials’ objections, 54 percent of respondents aged 18 to 29 responded “Yes,” while only 25 percent of respondents aged 65 or older gave that response. Differences in responses to this question based on political leanings were smaller but also substantial, with 47 percent of self-described “liberal” respondents favoring strong FAA authority over local drone operations and only 33 percent of “conservative” respondents supporting that approach. Such results are consistent with the broader tendency of older and more conservative Americans to safeguard local governance and personal property rights.
Perhaps even more revealing were the significant differences in results between self-identified male and female respondents on certain Drone Law Poll questions. For instance, 42 percent of female respondents indicated that they would “not accept any hourly price to allow” regular frequent commercial drone flights over their home. By contrast, only 27 percent of male respondents took this strong negative stance against commercial drone overflights. It’s impossible to definitely know why women’s monetary valuations of their rights to exclude unwanted drones were so much higher than those of men. However, these results are consistent with research suggesting that women tend to value privacy more highly than men when navigating online and in other settings.28Kevin Murnane, “How Men and Women Differ in Their Approach to Online Privacy and Security,” Forbes, April 11, 2016, https://www.forbes.com/sites/kevinmurnane/2016/04/11/how-men-and-women-differ-in-their-approach-to-online-privacy-and-security/?sh=4805b0947d88.
As commercial drone technologies continue to advance, conflicts between drone users and landowners over low airspace are likely to only intensify. The YouGov poll results described in this report provide a valuable new perspective on how ordinary Americans view their rights to exclude drones from the low-altitude airspace immediately above the land. In particular, they reveal that commercial industry advocates’ controversial interpretations of laws governing landowner airspace rights to open up low airspace for drone operations are inconsistent with most Americans’ views about those rights. They likewise reveal that most Americans strongly favor empowering municipal governments to help regulate civilian drone operations—an approach that the FAA and drone industry stakeholders continue to resist.
The substantial differences in opinion about drone regulation and airspace rights highlighted in this report help to explain why US commercial drone delivery operations have expanded far more slowly over the past decade than industry advocates had predicted. Recognizing that the drone industry’s positions on airspace rights and drone regulation are inconsistent with those of most Americans will hopefully encourage industry actors to begin more seriously exploring alternative approaches to drone routing that embrace rather than ignore landowners’ airspace rights.29Troy A. Rule, “Drones, Airspace, and the Sharing Economy,” Working Paper, Mercatus Center at George Mason University, May 2022, https://www.mercatus.org/research/research-papers/drones-airspace-and-sharing-economy.