I. Introduction
The year is 2033. It’s thirty minutes past noon, and you just remembered that today is your aunt’s birthday. Unfortunately, she lives about 100 miles away in a rural area. You quickly buy a gift from a nearby store and make your way to the local post office. At one of the kiosks, you choose “Same-Day Delivery.” A few hours later, your aunt is pleasantly surprised by a drone that has delivered your package to her doorstep. Advanced drone delivery has saved the day.[1]
Of course, the future isn’t now. Still, even in their relative infancy, drones have already impacted nearly every sector of our economy, ranging from healthcare to real estate, sports, news, among countless others. Since 2016, when the Federal Aviation Administration (“FAA”) formally adopted regulations governing the use of small, unmanned aircraft systems, many have predicted that delivery drones will soon dominate the skies.[2] The public and private sectors have responded with significant investments in drone delivery.[3] And many private companies now hold FAA air carrier certificates.[4]
Despite its growing theoretical acceptance, advanced drone delivery continues to face legal headwinds in the United States.[5] The legal process will surely be invoked when delivery companies try to find smooth air to resolve or avoid private landowners’ airspace-rights claims, that is because an effective service will involve hundreds and probably thousands of private air spaces. Without permission from landowners, the entity operating the drone may be liable for trespass, nuisance, or violations of other jurisdiction-specific statutory or common law rights. Drone delivery companies may face an incalculable number of lawsuits spanning several jurisdictions, or worse, uncontrolled interdiction or disruptive acts by landowners. [6],[7]
Solutions to these issues must be as nimble and efficient as the immediate problem. A key element will inevitably require the clarification and, if necessary, modification of landowners’ airspace rights for drone delivery to withstand the legal turbulence. To that end, this article first analyzes the current legal landscape for low airspace rights. Next, the article explores how courts may eventually modify landowners’ private rights.[8] Finally, this article explores legal “airways” for advanced drone delivery to take flight, change our economy and change our world.
II. Cleared for Take Off?: The Causby Decision and Landowners’ Low Airspace Rights
To understand the current legal landscape regarding drone delivery, one must begin with the seminal United States Supreme Court decision, United States v. Causby.[9] Mr. and Mrs. Causby owned a chicken farm in 1940s North Carolina.[10] Beginning in 1942, the United States Military began using a nearby airport.[11] Given the location of the runway, planes constantly passed over the Causbys’ farm, with some flying as low as 18 feet above the highest tree.[12] The noise from the planes killed many of the chickens, which eventually led to the farming operation shutting down.[13] The Causbys brought suit, arguing that the Government’s use of the airport and collateral destruction of their business amounted to a compensable taking under the Fifth Amendment.
In a landmark ruling, the Supreme Court disagreed, holding that landowners do not hold indefinite airspace rights in the sky above their land.[14] Instead, those rights end where navigable airspace begins.[15] After Causby, landowners’ interests extend only to the “immediate reaches” of space directly above their land,[16] including “at least as much of the space above the ground as the[y] can occupy or use in connection with the land.”[17] The Court reasoned that the age-old ad coelum rule had “no place in the modern world” where the public interest of commercial air travel outweighs the rights of private landowners.[18]
As expected, and intended, Causby cleared many of the legal hurdles facing the commercial aviation industry in the United States. Without Causby, airlines would have to negotiate voluntary aviation easements with thousands (or millions) of landowners to legally complete cross-country flights.[19] This would have heavily restricted the commercial aviation industry.[20]
While the Supreme Court’s redefining of landowners’ rights cleared the way for commercial air travel, it did not provide a functional airway for drone delivery. Small, unmanned aircraft systems, including advanced drone delivery services, fly below commercially navigable airspace.[21] This means that drones often operate in airspaces that remain controlled by the landowners beneath them. Consequently, advanced drone delivery now faces the same conundrum as the commercial airspace industry did pre-Causby. Without a shift in the current legal airspace or some other Congressional action, drone operators may need to purchase easements from virtually every landowner along a designated delivery route. For drone delivery to truly reach cruising altitude, another reimagining of landowners’ airspace rights is necessary.[22]
III. For the Good of the Public: Judicial Co-Piloting
Though Causby solidified landowners’ low airspace rights, it also established a framework for how courts might modify these rights to accommodate future technologies. Accordingly, the time is quickly approaching when courts will be called on again to balance landowners’ rights with the public interest in commercial air travel, including low airspace.
We submit that advanced drone delivery will have a profound and positive impact on our economy. Several leading researchers posit that consumers (including your aunt) will enjoy faster delivery times for packages, which will translate to reduced shipping costs.[23] This should, in turn, result in a sales boost for retailers.[24] Drones will have a dramatic impact on so-called “last-mile delivery,” or the movement of goods from a transportation hub to their final destination.[25] This is by far the most expensive leg of any package’s journey.[26] Indeed, it can amount to 50% of the total costs of distribution.[27] Drones will “optimize last-mile delivery by transporting packages from nearby warehouses or distribution centers to a specific address.”[28] This would affect both manufacturers and shippers. For example, UPS estimates that using drones could save the company up to $50 million by eliminating just one mile from delivery routes.[29]
Advanced drone delivery will benefit the environment as well. The World Economic Forum estimates a 36% increase of delivery vehicles on the roads by 2030,[30] with an additional estimated 6 million tons of CO2 emissions.[31] The use of small drones instead of large gas and diesel-powered vehicles will greatly reduce greenhouse gases emitted from the freight sector.[32] Replacing many of these vehicles will presumably result in less traffic congestion, less wear and tear on road infrastructure, and fewer accidents; each of which could potentially reduce burdens on the entire legal system.
IV. Legal “Airways” and Our Estimated Time of Arrival
We submit that the cumulative benefits of drone delivery are massive and far reaching. One may reason, like the Court in Causby,that these benefits outweigh any individual right that would inhibit them. A future Supreme Court could hold, for example, that a landowner maintains the right to exclude any aerial objects from their “immediate” airspace except for delivery drones.
Though we cannot predict what technologies public and private entities will create to provide this solution or how the Court may view those. Causby suggests that technological advancement and equity are not always competing interests. For example, courts may apply Causby and determine that existing (or future) technology allows landowners to receive notification of potential airspace encroachment by the Government. Other, presently existing technologies such as “geofencing”[33] and Low Altitude Authorization and Notification Capability[34] may afford Government entities and/or landowners the ability to restrict airspace in novel, judicially sanctioned ways. These potential solutions will allow landowners to protect their property from “peeping Toms” or other nefarious drone users, while clearing the way for drone delivery. Balancing the public and private interests in airspace-rights suits will take time considering the number of potential constitutional challenges that arise when the government expands control over common technologies.[35]
V. Conclusion
As the benefits of advanced drone delivery become clearer, courts may be more willing to modify landowners’ low airspace rights. But they can only go so far. Without Congressional or administrative action, the resulting “patchwork” application of Causby and its progeny may ground advanced drone delivery for the time being.
[1] For purposes of this article, “advanced drone delivery” means commercial and government aerial delivery services and logistics networks composed of unmanned aircraft systems (“UAS”).
[2] See Troy A. Rule, Drones, Airspace, and the Sharing Economy, 84 Ohio St. L. J. 157, 157–60 (2023) (observing that powerful companies continue to push for greater utilization of drones while recognizing that existing property laws present a “major obstacle”); see also Agence France-Presse, FAA: Number of US Drones Will Triple by 2020, IndustryWeek (Mar. 25, 2016), https://www.industryweek.com/technology-and-iiot/article/21972014/faa-number-of-us-drones-will-triple-by-2020 (predicting that 2.7 million commercial drones would be operating in the United States by 2020).
[3] See Package Delivery by Drone (Part 135), Fed. Aviation Admin., https://www.faa.gov/uas/advanced_operations/package_delivery_drone (June 21, 2022); see also Annie Palmer, Amazon Wins FAA Approval for Prime Air Drone Delivery Fleet, CNBC (Aug. 31, 2020), https://www.cnbc.com/2020/08/31/amazon-prime-now-drone-delivery-fleet-gets-faa-approval.html;Nicholas Shields, Walmart Is Exploring Blockchain for Drone Delivery, Bus. Insider (Sept. 5, 2018), https://www.businessinsider.com/walmart-blockchain-drone-delivery-patent-2018-9.
[4] See, e.g., UPS’s Flight Forward®, Amazon’s PRIME AIR™ and Alphabet’s (Google) Wing Aviation, LLC™. Wing was the first drone delivery company to receive an Air Operator’s Certificate from the FAA. Also in 2019, the United States Postal Service began exploring using of drones to deliver mail and collect data.
[5] For example, as recently as February 2023, the FAA severely restricted Amazon’s PRMEAIR service from engaging in drone delivery in designated beta sites in California and Texas. See Lakshmi Varanasi & Katherine Long, Amazon’s Prime Air Reportedly Has Only Made A Handful of Drone Deliveries, as FAA Restrictions Have Thwarted Widespread Use, Bus. Insider (Feb. 2, 2023),https://www.businessinsider.com/faa-restrictions-are-curtailing-amazons-drone-delivery-program-2023-2.
[6] Counter-drone technology or “C-UAS,” is presently available for military use. As concerns mount around the potential security threats drones may pose, a new civilian C-UAS market is rapidly emerging. Arthur H. Michel, Counter-Drone Systems: 2nd Edition, Ctr. for the Study of the Drone (Dec. 2019), https://dronecenter.bard.edu/projects/counter-drone-systems-project/.
[7] This article cannot address every possible obstacle, including those appearing in the underlying federal regulations. See, e.g., 14 C.F.R. Pt. 107, et seq. (2021). For example, the UAS-related limitations prohibit or restrict “out-of-sight” operation, certain multi-drone operations, flights over people, and night-time operations. Further complications exist in the regulatory framework’s nebulous, ill-defined waiver allowance for “most” restrictions. Id.; see also FAADroneZone, Fed. Aviation Admin., https:www.faadronezone.faa.gov/ (last visited Aug. 15, 2023).
[8] Congressional or administrative action, including further definitions of landowners’ rights, would certainly present an operating framework within which the Court might provide further guidance. This article does not explore every potential statutory or regulatory option available to Congress.
[9] 328 U.S. 256 (1946).
[10] Id. at 258.
[11] See id.
[12] See id. Current FAA regulations restrict UAS flight to a maximum of 400 feet above ground unless waiver is specifically granted. 14 C.F.R. § 107.51(b) (2016).
[13] See Causby, 328 U.S. at 259.
[14] See id. at 260–61.
[15] See id. at 260–61. This was a departure from the centuries-old English common law rule of cujus est solum, eius est usque ad coelum et ad inferos, meaning that landowner own all the airspace above their property up to the heavens. See id. at 260–61 (citing 1 Coke, Institutes, 19th Ed. 1832, ch. 1, s 1(4a); 2 Blackstone, Commentaries, Lewis Ed. 1902, p. 18; 3 Kent, Commentaries, Gould Ed. 1896, p. 621).
[16] See id. at 264.
[17] See id.
[18] See id. at 261.
[19] See Rule, supra note 1 at 162–63 (citing Stuart Banner, Who Owns the Sky?: The Struggle to Control Airspace from the Wright Brothers On 291–93 (2008) (describing the potential transaction cost problems associated with manned aviation in navigable airspace)).
[20] See id.
[21] See supra note 12.
[22] Though the public import of liberal low airspace rights seems clear, in 2021, the Supreme Court reaffirmed Causby’s holding protecting landowners’ rights to exclude objects from the airspace immediately above their properties in Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021) (regulation giving labor organizations access to employer’s land to solicit union support effected a per se physical taking). Hassid suggests the Court may be hesitant to place any restrictions on landowner’s low airspace rights any time soon.
[23] See Delivery Drones Are Taking Off, Supply Chain Game Changer (Mar. 28, 2023), https://supplychaingamechanger.com/delivery-drones-are-taking-off-infographic/.
[24] See id.
[25] See id.
[26] See id.
[27] See id.
[28] See id.
[29] See id.
[30] World Economic Forum, The Future of the Last-Mile Ecosystem (Jan. 2020), https://www3.weforum.org/docs/WEF_Future_of_the_last_mile_ecosystem.pdf.
[31] Jack Stewart, If You Think Delivery Trucks Contribute to Road Congestion Now . . . Just Wait (Jan. 15, 2020), https://www.marketplace.org/2020/01/15/if-you-think-delivery-trucks-contribute-to-road-congestion-now-just-wait/.
[32] See supra note 23; see also J. Stolaroff, C. Samaras, E. O’Neill, A. Lubers, A. Mitchell, & D. Ceperley, Energy Use and Life Cycle Greenhouse Gas Emissions of Drones for Commercial Package Delivery, Nature Comms. (Feb. 13, 2018) (analyzing the overall net benefit of replacing gas and diesel powered vehicles with small drones on the environment), https://www.nature.com/articles/s41467-017-02411-5; Jean-Philippe Aurambout, Konstantinos Gkoumas & Biagio Ciuffo, Last Mile Delivery by Drones: An Estimation of Viable Market Potential and Access to Citizens Across European Cities, Eur. Transp. Res. Rev. 11, 30 (June 20, 2019) (describing potential economic and social cost advantages of using drones for “last mile delivery” services, including reduced labor, delay, and congestion costs), https://etrr.springeropen.com/articles/10.1186/s12544-019-0368-2.
[33] Geofencing is the enforcement of virtual restrictions on drones using a combination of Global Positioning Satellites, Wi-Fi, Radio Frequency Identification, and internal software applications.
[34] Low Altitude Authorization and Notification Capability uses desktop and mobile apps designed to support the volume of drone operations conducted in proximity to FAA Air Traffic Control facilities in near real-time. Drone pilots planning to fly in controlled airspace around airports must receive pre-flight authorization.
[35] See, e.g., Barr v. American Ass’n. of Political Consultants, Inc, 140 S. Ct. 2335 (2020) (First Amendment challenge to electronic “robocall” restrictions); Brown v. Entertainment Merchants Ass’n., 564 U.S. 786 (2011) (First and Fourteenth Amendment challenge to state law prohibiting sale or rental of “violent video games” to minors).
