As Congress works through its reauthorization package for the Federal Aviation Administration, it should hold fast to first principles.
Although lawmakers are contemplating legislation on new technologies and developing business operations, the novelty of certain enterprises is no reason to deny the values of our constitutional framework.
Consider drone package delivery and a current proposal to impose federal air carrier certification on anyone who wants to enter that business.
Drone package delivery could enable medicine, groceries, and other items to be delivered faster and safer than by ground or manned air transportation. It could bring a lift to local economies just as Uber, DoorDash, and other companies have provided employment opportunities and improved quality of life.
But applying federal air carrier certification to drones would erode federalism and property rights, and preempt states and localities seeking to impose reasonable restrictions on how drones operate mere feet above their own communities.
Federal regulations known as Part 135 require companies that provide interstate or foreign transportation, or carry mail by air for hire, to apply to the FAA for a certificate and follow a detailed federal regulatory scheme.
As antithetical to economic liberty as that “mother may I” approach to business may seem, it makes sense for a world of manned air traffic, where complex logistical networks and significant public safety concerns that frequently cross state borders are most efficiently regulated by the FAA.
But there are other issues at stake when it comes federalism and low-altitude drone operations, as we explain in a recent Heritage report.
Under the proposed FAA reauthorization package, drone operators interested in the package delivery business would be required to apply for an unmanned aircraft systems air carrier certificate. If the certificate is granted, they could operate in much the same way as FedEx Air or American Airlines.
They would also be subject to a longstanding law, 49 U.S. Code § 41713, which bars state and local authorities from passing any laws “related to a price, route, or service of an air carrier.”
That would bar state and local governments from exercising core components of their sovereign power to regulate land use and exercise zoning authority, among other functions that the Founders entrusted to states.
Those and other traditional state prerogatives would presumably fall under the control of Congress and the FAA.
There are enough stories of federal regulators interfering in and mismanaging local property rights—such as the Environmental Protection Agency threatening one family with heavy-handed penalties for building a state-approved stock pond in their own yard—to know that approach is ill-advised.
But, leaving the regulation of local land use and property rights solely to federal bureaucrats also asks far more of them than they can handle.
State and local authorities have the direct accountability, political flexibility, and understanding of local conditions that is required to effectively regulate and govern the rollout of drone services in low-altitude airspace.
They also have inherent police powers, and historically have adopted a variety of time, place, and manner regulations on conduct within their communities. These include establishing local traffic patterns, speed limits, and other rules of the road; preventing obstruction of law enforcement officers and first responders; setting nuisance and navigation ordinances to control for noise, light, waste, and other environmental concerns; defining property rights and overseeing land use; and controlling for the safety of public assemblies and demonstrations; and regulating local commercial activity.
All of these will be crucial in the drone space. Most people would find it odd if they were required to win federal permission to set a local speed limit. They will be similarly perplexed to find out that localities are powerless to restrict drone flights over high school football games or prevent drones from buzzing around homes at all hours of the night.
Ultimately, the federal certification and preemption approach to drone delivery is unnecessary. The FAA could simply modify existing drone regulations, known as Part 107, to allow operators of unmanned systems aircraft to fly beyond the line of site, operate autonomously and over people, and carry cargo.
That approach would allow for a variety of beneficial drone operations—not just package delivery—and would preserve the crucial role that states and localities play in our federal system.
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