In the age of COVID-19, there is a renewed interest in the principles of federalism and the limits of federal power, including the power of the Federal Aviation Administration. More and more, commentators and legislators are arguing that the FAA should not be the sole arbiter of how the national airspace is used, particularly below 400 feet.
This is, of course, a faulty premise upon which to build an argument. The FAA would be the first to disclaim any such authority. For example, the FAA is not concerned with privacy, and has no interest in regulating the actual use made of unmanned aircraft or unmanned aircraft data. The FAA’s sole concern is the safety of the airspace. Any attempt to balkanize the regulation of aviation safety by giving state and local governments the authority to regulate the use of the airspace is fraught with peril.
As a recent study points out, there is still a serious problem with unauthorized use of unmanned aircraft in controlled airspace. The study looked at UAS operations near the Daytona Beach International Airport over a thirty-day period, and found that 34% of the 272 flights exceed the altitude maximum applicable to their location near the airport, 15% exceeded 500’ AGL, and 3.3% exceeded 1000’ AGL. The researchers recommended a comprehensive, coordinated, federal response to address the problem.
In considering aviation federalism issues, we all need to keep in mind that the question of the best way to maintain aviation safety is not new. When the airplane was first invented, there were no regulations governing flight. By the 1920s, the growing toll of accidents led to the first federal licensing of pilots through the Air Commerce Act of 1926 and an international effort to determine the best way to handle accident issues through the Warsaw Convention of 1929.
By 1940, Justice Jackson was able to eloquently describe the federal government’s role in aviation safety as follows:
Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxies onto a runway, it is caught up in an elaborate and detailed system of controls. It takes off only by instruction from the control tower, it travels on prescribed beams, it may be diverted from its intended landing, and it obeys signals and orders. Its privileges, rights, and protection, so far as transit is concerned, it owes to the Federal Government alone, and not to any state government.
Ironically, many of the people arguing for more local control of airspace do so because they are afraid the FAA will become more and more heavy handed and restrictive. A review of regulatory efforts, however, shows that when state and local governments act, it is almost always to ban conduct that is permissible under federal law. The rules passed by the city of Newtown, Connecticut provides a prime example. Without federal preemption, the city’s ban on flying over private property below 400 feet, its ban of all flight over city property, its ban on all beyond visual line of sight operation even with an FAA waiver, and its local UAS registration requirement would all be enforceable. As a result, drone operators looking to state and local governments to “save them” from the FAA are engaging in wishful thinking.
Federal control over aviation safety has created a system that is the envy of the world. State and local governments do not have the expertise to set pilot licensing and training requirements or make judgments about the safety mitigations for flight over people, or at night, or beyond visual line of sight. Now is not the time to throw away a system that has taken a century to build and has produced safety results that, a few decades ago, were thought to be impossible.