Can Virginia or its cities pass their own rules about drones, or does federal law lock the state out?

Plain-English summary

In 2015, drone use was exploding for hobbyists, researchers, businesses, and government users. Delegate Scott Surovell asked the Attorney General a question that was popping up in every state capital: can Virginia or its localities pass their own drone laws, or has Congress already locked the field down with federal aviation law?

Attorney General Herring's answer was layered. Yes, much of the field was federally preempted, but not all of it. The opinion walked through the three legal doctrines that govern when federal law displaces state law (express preemption, conflict preemption, and field preemption) and applied them to drones specifically.

The takeaways:

• Commercial drones flying property across state lines: states cannot regulate their routes, rates, or services. The Airline Deregulation Act of 1978 expressly preempts that.
• Drone safety, operation, certification, pilot licensing, airspace use: the Federal Aviation Act and FAA Modernization and Reform Act of 2012 field-preempt these areas. The FAA owns drone airworthiness, operating limits, pilot training, registration, and night-flight rules.
• Hobbyist model aircraft (under 55 pounds, recreational, line-of-sight, away from airports): the federal statute carves out an exemption that lets states and localities regulate these.
• Privacy and property protections: federal law leaves states free to legislate here, because the FAA has declined to regulate drone privacy.
• Criminal misuse of drones and tort liability: states can criminalize bad drone conduct (reckless flying, harassment, voyeurism) and tort claims can proceed under state law, even where federal law governs the standard of care.

Herring noted that the area was still evolving, and that any specific Virginia or local ordinance would need to be tested against the actual federal regulations at the time of enforcement.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The FAA has since issued Part 107 (the small drone rule), Remote ID requirements, and other regulations that postdate this opinion. Verify current FAA rules and Virginia statutes before relying on any specific rule, deadline, or jurisdictional line mentioned here.

Common questions

Did the AG say Virginia could ban drones outright?

No. Herring said state and local governments cannot regulate drone safety, operation, airspace, or pilot certification, which is most of what a drone ban would do. Localities could regulate land or water use (where drones land and take off) and recreational model aircraft within the FMRA carve-out, plus criminal misuse and privacy.

Could a city like Alexandria or Arlington pass an anti-peeping-drone ordinance?

Under this opinion, yes. The FAA had explicitly told states they were free to address drone privacy, and the opinion read that as preserving state and local authority to legislate against drones used to invade privacy.

What about a Virginia law making it a crime to crash a drone into a stadium?

Allowed. The opinion noted that state criminal statutes generally are not preempted by federal aviation law, even when the conduct involves a federally regulated subject.

Did Pirker (the Charlottesville drone case) play a role?

Yes. Herring cited Huerta v. Pirker, the NTSB order confirming that drones meet the federal definition of "aircraft" and therefore fall under FAA jurisdiction. That ruling was important because it foreclosed any argument that drones were too small or too new to count.

Did the AG comment on any specific Virginia bill?

No. Herring expressly said he offered no opinion on whether any particular existing or proposed Virginia or local regulation was preempted. He gave the framework, not the verdict on individual ordinances.

Background and statutory framework

Federal preemption analysis under the Supremacy Clause comes in three flavors. Express preemption is when Congress states outright that federal law displaces state law on a topic. Conflict preemption is when state law makes federal compliance impossible or stands as an obstacle to federal goals. Field preemption is when federal regulation is so pervasive that no room is left for state law.

The Airline Deregulation Act of 1978 expressly preempts any state law "related to a price, route, or service of an air carrier." A drone meets the federal definition of "aircraft," and a drone used to transport property across state lines for compensation meets the definition of an "air carrier." So that piece is straightforward.

The Federal Aviation Act of 1958 and the FAA Modernization and Reform Act of 2012 together field-preempt aviation safety, aircraft operation, and airspace management. Courts have built a wall around these topics: state altitude rules, flight path rules, and airport noise ordinances have all been struck down as preempted. Drone-specific regulations issued by the FAA under FMRA continue to expand that wall.

The carve-outs Herring identified came from express statutory language or from federal silence. Section 336 of FMRA prohibits the FAA from regulating recreational model aircraft meeting five conditions: weight under 55 pounds, recreational use only, operated under community-based safety guidelines, kept clear of manned aircraft, and (if within five miles of an airport) operated with prior notice. The FAA's own statements that privacy is a matter for state legislation gave states that lane. And the general rule that state criminal statutes survive federal preemption of an underlying activity gave states the ability to prosecute drone misuse.

A private landowner's property interest in the "superadjacent airspace" just above the surface (recognized in United States v. Causby, 1946) is the doctrinal anchor for state property-law claims against intrusive drones.

Citations

• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Airline Deregulation Act of 1978, Pub. L. No. 95-504, codified at 49 U.S.C. § 41713
• Federal Aviation Act, Pub. L. No. 85-726, codified at 49 U.S.C. §§ 40101 et seq.
• FAA Modernization and Reform Act, Pub. L. No. 112-95 (2012)
• 49 U.S.C. § 40102(a)(6) (definition of "aircraft")
• 49 U.S.C. § 40103(a)(1) (federal sovereignty of U.S. airspace)
• Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707 (1985)
• Sprietsma v. Mercury Marine, 537 U.S. 51 (2002)
• Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963)
• Hines v. Davidowitz, 312 U.S. 52 (1941)
• Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007)
• Huerta v. Pirker, N.T.S.B. Order EA-5730 (2014)
• United States v. Causby, 328 U.S. 256 (1946)
• Crenshaw v. Commonwealth, 219 Va. 38 (1978)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/14-075_Surovell.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071

July 13, 2015

The Honorable Scott A. Surovell
Member, House of Delegates
Post Office Box 289
Mount Vernon, Virginia 22121

Dear Delegate Surovell:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the Commonwealth or its localities may regulate the use of drones, or whether such actions are preempted by federal law.

Background

Drones, otherwise known as unmanned aircraft systems, have in recent years become popular tools for scientific researchers, entrepreneurs, military personnel, and civilian hobbyists alike. Technology is rapidly expanding the numerous ways drones can be used. These developments have raised concerns about the possible misuse of drones, as well as questions regarding the extent of state and local authority to regulate their use.

Applicable Law and Discussion

I. The Supremacy Clause and Federal Preemption

The Supremacy Clause of the Constitution of the United States declares that the "Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land," notwithstanding the laws of any state to the contrary. For purposes of the Supremacy Clause, "local ordinances [are] analyzed in the same way as . . . statewide laws." Thus, to the extent that state or local laws or ordinances conflict with federal law, they are preempted by federal law.

Courts have identified three types of federal preemption. "Express preemption" occurs when Congress has clearly stated or conveyed the intention that federal law shall preempt state law. "Conflict preemption" occurs when a state law is in direct conflict with federal law, such that "compliance with both federal and state [laws] is a physical impossibility," or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Finally, "field preemption" occurs when there is a "scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." When a subject is field preempted, any state law falling within the scope of the field is preempted and is invalid.

The types of federal preemption that are relevant to your inquiry are express preemption and field preemption. I will discuss both in turn.

II. Express Preemption

The only federal law that expressly preempts state and local laws regarding aviation is found in the Airline Deregulation Act of 1978 (the "Deregulation Act"). Under the Deregulation Act, no state may "enact or enforce a law, regulation, or other provision . . . related to a price, route, or service of an air carrier that may provide air transportation." The Deregulation Act defines an "air carrier" as "a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation." It defines "air transportation," in turn, to include the interstate "transportation of passengers or property by aircraft as a common carrier for compensation." A drone qualifies as an "aircraft" under the Act's broad definition of the term. Accordingly, to the extent a drone is used commercially to transport property for compensation across state lines, the Deregulation Act preempts any state regulation related to its price, routes, or services.

III. Field Preemption

The federal government has asserted exclusive sovereignty over the airspace of the United States. In 1958, Congress passed the Federal Aviation Act (the "Aviation Act"), which created the Federal Aviation Administration ("FAA") and vested in it the power to "frame rules for the safe and efficient use of the nation's airspace." Among other things, the Aviation Act provides the FAA with broad authority to regulate air safety, the operation of aircraft, and the use of navigable airspace (i.e., airspace management). As the primary federal body responsible for the oversight of aviation, the FAA has issued extensive federal regulations on these topics pursuant to its authority under the Aviation Act.

Courts have consistently found that the Aviation Act "preempts the entire field of aviation safety." Congressional intent "to displace state law is implicit in the pervasiveness of the federal regulations, the dominance of the federal interest in this area, and the legislative goal of establishing a single, uniform system of control over air safety." Courts have likewise found that the Aviation Act preempts the entire fields of aircraft operation and airspace management. Therefore, state and local governments may not enact laws purporting to regulate these areas. Examples of preempted regulations include, but are not limited to, regulations that govern aircraft altitude, flight paths, or noise.

The Aviation Act applies to all "aircraft," which it broadly defines as "any contrivance invented, used, or designed to navigate, or fly in, the air." For the past nine years, the FAA has consistently treated drones as "aircraft" in guidance documents, policy statements, and internal memoranda. And the National Transportation Safety Board recently affirmed the FAA's interpretation that drones fall under the definition of "aircraft" in the Aviation Act and are, therefore, subject to FAA regulation.

Furthermore, in 2012 Congress passed the FAA Modernization and Reform Act ("FMRA"), which deals directly with the federal regulation of drones. The FMRA directs the FAA to issue a set of federal regulations to "safely accelerate the integration of [civilian drones] into the national airspace." Under that directive, the FAA must create standards for the "operation and certification" of drones, as well as the registration and licensing of drone pilots and operators. In 2013, the FAA issued a "roadmap," which anticipates that forthcoming drone regulations will establish airworthiness certification standards for drones, standards for the acceptable operation of drones, and standards for training drone pilots and other members of the aviation community who will work with drones (such as mechanics, air traffic controllers, visual observers, and launch/recovery specialists). Recently this year, the FAA issued a notice of proposed rulemaking setting forth proposed regulations for small civilian drones. These proposed regulations address many of the specifics pertaining to the operation of small drones, operational limitations and requirements, a prohibition on night-time operations, establishment of a maximum airspeed and altitude, and operator certification requirements and responsibilities.

It is therefore clear from both the FMRA and the Aviation Act that Congress intends to occupy the fields of drone safety, operation, and airspace management, including specific standards governing drone certification and the training and licensure of drone pilots. For this reason, I conclude that state and local governments are preempted from enacting regulation targeted to these areas, with certain exceptions.

One exemption from the field preemption created by the Aviation Act and FMRA is for regulations that pertain to certain "model aircraft." That term encompasses some drones. The FMRA prohibits the FAA from promulgating any regulations governing model aircraft that: (1) are used solely for recreational purposes; (2) are operated in accordance with a community-based set of safety guidelines; (3) weigh less than 55 pounds; (4) are operated in a manner so as not to interfere with manned aircraft; and (5) if flown within five miles of an airport, are operated by an individual who has given the aircraft operator and air traffic control tower prior notice of the operation. The FAA retains the authority, however, to enact and enforce regulations to ensure that these model aircraft do not "endanger the safety of the national airspace system." Given the explicit "carve out" for model aircraft, it is my opinion that state and local regulations governing these types of small craft are not preempted, as long as those regulations do not conflict with either the language or purpose of existing federal law and regulations.

Another exemption from the field preemption created by the Aviation Act and FMRA is for laws related to privacy and property regulation. In addition, criminal statutes, even when the subject of the prohibited conduct is regulated under federal law, have generally been held not to be preempted under federal law. And although the standard of care for a tort action relating to a preempted subject is generally governed by federal law, the ability to bring the state cause of action survives. Finally, although the "United States Government has exclusive sovereignty of airspace of the United States," a private landowner has a vested property interest in the "superadjacent airspace" just above the surface of the land.

I offer no opinion as to whether any particular state or local regulation is preempted by federal law, and I note further that the potential scope of federal preemption may change as Congress and the FAA continue to develop regulations pertaining to drones.

Conclusion

Accordingly, it is my opinion that the federal Deregulation Act expressly preempts state or local regulation of the routes, rates, and services of commercial drones used to transport property across state lines. Furthermore, the Aviation Act and FMRA preempt state and local regulation of drone safety, operational standards, and airspace designations, including particular issues relating to drone certification, training, and licensure. There are certain exceptions to federal preemption, as discussed above.

States remain free to enact laws relating to drones if the laws fall outside the scope of the Aviation Act and FMRA and do not conflict with other federal laws or regulations. In particular, states may regulate small drones that are exempted from federal regulation under the FMRA, and they may also enact laws for drones that address issues of privacy and property and also criminal offenses, so long as the laws do not conflict with the language or purpose of any existing federal aviation law.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General