Most of the attention paid to drones has focused on issues of aviation and Federal Aviation Administration (FAA) authority. Yet much of the impact of low-flying drones will fall, not on the national air transportation system, but on those who live and work at ground level. Accordingly, states, counties and municipalities are increasingly asserting regulatory authority over drones and citing the need to protect the health and safety, including privacy, of residents.

Historically, state and local governments protect their residents through land use and zoning restrictions, among other laws adopted under their broad police powers. For example, a community may choose to preserve its beach or mountain views by restricting the construction of high-rise hotels or apartments on the shoreline, and a state may control noise in school zones or near hospitals. And, of course, the “rules of the road” for surface vehicles are essential for pedestrian, cyclist and vehicle safety. Indeed, such power has traditionally been reserved to states and local governments. Drones—with uses quickly proliferating in both urban and rural areas—have the potential to impact the privacy, quietude, and safety of residents, in a manner that older aircraft technologies do not. But what authority (if any) do states and local governments have to prevent or allow uninspected, or unauthorized, drones operated by unlicensed “pilots” to operate directly above and around their residential and commercial areas, or even in and around local and state parks?