Legal Corner: Limitations on regulating drones at the local level

Drones are not a new phenomenon, but their use has rapidly increased in recent years for purposes ranging from recreation to research, business, and more. With this increased usage comes greater regulatory challenges and community concerns. While many municipalities have already implemented drone regulations, it is important for municipalities that may be looking to implement drone regulations, or to update existing regulations, to understand the parameters of their authority in this arena. Given the aerial nature of drones — also referred to as unmanned aircraft systems (UAS) — there is an important interplay between federal, state, and local laws. This article will provide an overview of the delineation of authority between the federal government and state/local governments, including the parameters around municipal drone regulation, and discuss the emerging issue of commercial drone deliveries. 

Federal drone authority 

The federal government, specifically the Federal Aviation Administration (FAA), has sole authority to regulate aviation safety and efficient use of airspace by aircrafts, which includes drones. This authority preempts state and local laws that attempt to regulate in this area, including any laws that conflict with FAA regulations by rendering compliance with both laws impossible, or when state or local laws create an obstacle to the FAA’s regulations. Under the authority of the U.S. Department of Transportation through the Airline Deregulation Act, state and local laws that relate to the prices, routes, or services of commercial aircraft carriers, are also preempted. Because of the additional federal regulations around commercial aircraft carriers, state and local governments are even more limited in regulating drones used for commercial purposes. The complete grant of authority to the FAA over aviation safety and efficient use of airspace means that state and local government entities do not even have authority to enforce federal regulations in this field. 

State and local drone authority 

Through written guidance, the FAA has identified numerous examples of state or local laws regulating drones that “would likely not be subject to ... preemption.” This means that there are no absolute guarantees that local laws of this nature would pass legal muster, but it provides reasonable assurances that some local regulations are likely defensible. Examples of laws that state or local governments can adopt include regulating the location of drone takeoff and landing; regulating where drone operators can be located while operating drones; prohibiting, limiting, or penalizing drone operations that interfere with a property owner’s use and enjoyment of their property; and imposing administrative drone registration requirements. 

In addition, state or local laws aimed at objectives unrelated to FAA regulations that do not impair the reasonable use of drones may also be permitted. This might include laws related to land use or zoning, essential infrastructure, privacy, criminal conduct, exercise of police powers, and more. Generally speaking, laws that regulate conduct or how a drone is used are likely more appropriate for state and local regulation than those that restrict where drones can operate in the airspace. 

While many states have adopted laws regulating drones, Colorado’s state laws are relatively limited when it comes to drone regulation. There is much more regulation found at the local level in Colorado instead. The Colorado General Assembly considered Senate Bill 26-024, State & Local Unmanned Aircraft Regulation, during the 2026 legislative session, which would have restricted local drone regulations. CML opposed this bill and was successful in getting it postponed indefinitely in the bill’s first committee hearing. 

Drone delivery – an emerging issue 

According to the FAA, commercial drone package delivery first began with Amazon’s operations in 2020, following their certification under federal law. Commercial drone delivery has continued to grow in recent years with seven drone operators now having received an FAA 14 CFR part 119 air carrier certificate with authority to conduct operations under 14 CFR part 135. Many of these drone operators serve as third party contractors that conduct deliveries on behalf of various companies. 

The FAA also regulates drone package delivery safety and ensures compliance with National Environmental Policy Act (NEPA) regulations. Commercial delivery drones average a five-foot wingspan, must fly under 400 feet above ground level, and the maximum package weight is five pounds. The FAA counsels drone operators that in addition to obtaining the requisite FAA certifications and following FAA regulations, they must “comply with state and local requirements, inform the local community of their operations, ... establish a hub and delivery infrastructure, comply with NEPA, and respond to public inquiries concerning their operations.” 

Regarding the obligation of drone package delivery operators to comply with local requirements, local governments may already have regulations of general applicability in place that would apply to drone delivery. For example, land use or zoning requirements that would apply to distribution hubs, licensing requirements, or general drone regulations that would likewise apply to drone deliveries. Communities that do not have general local laws in place that would apply to drone deliveries, or that feel they might have regulatory holes, may wish to consider whether this is an issue that they want to regulate further.  

Noise regulation is another area of general local regulation that might be useful for drone management. Noise, however, is a complicated subject matter area in terms of federal preemption. In Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973), in a 5-4 decision, the U.S. Supreme Court held that the FAA “has full control over aircraft noise, preempting state and local control.” While this decision addressed planes, not drones, more recent federal regulations indicate an intent to regulate drone noise at the federal level, suggesting that the Burbank decision would likely apply to drones. Accordingly, local noise regulations may be preempted when it comes to drones notwithstanding the more local nature of drones as compared to planes. Alternatively, noise regulation accomplished through local land use or zoning laws might be more defensible but remains an open question. 

While drone delivery is still a relatively novel concept, it is an expanding area that your community may find itself addressing sooner than later. In considering local regulations of drone delivery, it is important to remember that all the restrictions on local drone regulations discussed above apply. When considering new or updated regulations whether drone specific or drone adjacent, municipalities should consult with their municipal attorney to ensure that they do not run afoul of federal laws and preemptions.

This column is not intended and should not be taken as legal advice. Municipal officials are always encouraged to consult with their own attorneys.