Game Of Drones: The Future Of Environmental Enforcement and Monitoring Is Overhead

Posted on March 8, 2016 by Jeff Thaler

For many of us, the only “drone” we knew of growing up probably was that boring, monotonous lecture late on a sunny afternoon. Or if you were expert in biology, you would have known that a “drone” is a stingless male bee whose sole job is not to gather nectar or pollen, but to mate with the queen. Today, however, everyone over the age of 5 knows that drones are a hot gift item, anything that flies without a pilot onboard but controlled remotely. A “drone”, in government parlance, is generally termed a UAV (Unmanned Aerial Vehicle), or a UAS (Unmanned Aerial System) -- which is a UAV, plus the ground-based controls.

UAVs have spawned a wide range of legal and regulatory issues, including not only Federal Aviation Administration (FAA) licensing but significant privacy, tort and property rights matters.  Given the existing and potential use of UAV-collected information about environmental conditions, the next big fight in environmental enforcement will be the admissibility of UAV-collected evidence. Many may not know  of the growing use of, and potentially expanding realm for, drones in the environmental arena. The World Wildlife Fund has been using UAVs for several years for such disparate activities as 1) monitoring prairie dog colonies for potential habitat for one of North America’s most endangered mammals, the black-footed ferret. 2) undertaking surveillance activities to reduce poaching of elephants and rhinos in Africa and Asia, and 3) monitoring the three main species of marine turtles in Suriname to combat poaching of their eggs. Likewise, the Nature Conservancy has tested drones to monitor the sandhill crane population in the U.S.  And a new NGO, Conservation Drones, has been working with groups all over the “developing tropics to use UAVs for conservation.” 

It is not a big leap from use of UAVs for wildlife conservation purposes, to enforcement efforts against unlawful pollution of waterways and illegal logging. For example, a drone can obtain imagery of discoloration suggestive of discharges of hazardous substances; can detect differences in water temperature using thermal sensors to detect illegal discharges; can film illegal mining or deforestation activities; or can even collect small volume water samples from remote areas. But in the US, if one of your clients is the target of such surveillance, is the evidence admissible in an enforcement proceeding?

The answer is—maybe. It depends. The type of answers clients hate to receive from their trusted legal counsel. It is beyond the scope of this post to discuss all of the ongoing machinations of the Federal Aviation Administration as it attempts to develop final rules for the commercial (non-hobby) operation of UAVs. But while the federal government attempts to preempt the field, States have stepped in and, in conflicting ways, attempted to respond to the growing drone game. In 2015, 45 states considered 168 drone bills, and 20 states enacted legislation. In some states, use of a drone over the private property of another person, without prior consent, could result in criminal or civil prosecution or damage claims—even if the drone is used for the environmentally beneficial uses described above. Thus, one must become familiar with her or his state’s laws, as well as monitor the ongoing FAA and Congressional activities, to best effectively prepare and advise clients on this brave new world.

China currently is using  UAVs to track excessive air and water pollution is China. In one city with 40,000 sources of industrial pollution and 900 industrial parks, drones are using “high-resolution digital cameras, infrared and laser scanners, and magnetometers…. Some UAVs are also fitted with an infrared thermal imaging unit that shows the operation of facilities at night.” How this information will be used in China remains to be seen.

At home in the US drones are going to fuel more and more back-and-forth legal maneuvers of environmental regulators and NGOs against companies and their lawyers. The gathering and use of drone-generated information may be as intense a fight as the sport use of the UAVs themselves.  To get a preview of that emerging arena,  check out the more recent “Flight Club” aka Game of Drones—the “bad boys” who want to be the next big sports league. Coming soon to a screen near you.

Invasion of the Drones

Posted on August 12, 2014 by Leslie Carothers

            Late last year, Amazon CEO Jeff Bezos announced on 60 Minutes plans to launch drones to deliver products purchased by Amazon customers. Fleets of flying arachnoid contraptions will deposit discount books and kitchen gadgets on customers’ doorsteps within minutes of their online orders.  Is this an exciting  innovation or a really bad idea?

            The growing infatuation with what the Federal Aviation Administration (FAA) defines as Unmanned Aircraft Systems (UAS) for commercial, scientific, or recreational purposes presents the FAA with an extremely complex task of integrating these machines into the national system for regulation of airspace.  In addition to serious airspace safety and national security concerns, the wider use of drones raises privacy issues as well as environmental concerns such as noise, emissions, injury and disturbance of wildlife, especially birds, impaired visibility, and aesthetic impacts to our landscapes and our skies.  

            In 2012, Congress passed the FAA Modernization and Reform Act to recognize and regulate commercial drones. The law  requires  the FAA  to prepare and publish a five-year roadmap to guide aviation stakeholders on the tasks involved in integrating UAS into the National Airspace System of regulated aircraft equipment, procedures, operator training, and certification of compliance.  The road map issued November 7, 2013, states that proposed civil and commercial uses of UAS include security awareness, disaster response, communications, cargo transport, infrastructure monitoring, commercial photography, aerial mapping and charting, and advertising.  The agency has announced plans to propose rules to regulate small drones—those weighing less than 55 pounds and flown under 400 feet in altitude—this year to ease the restriction on machines presenting little or no risk to commercial aviation.  But even this category of equipment presents significant regulatory concerns and complexities.

            The FAA currently handles approvals for use of UAS by issuing certificates of waiver or authorization to public operators and special experimental certificates to civil applicants.  Researchers from private universities have complained about being excluded from the approval process.   FAA’s recent assertion of broad authority over “any contrivance invented, used, or designed to navigate in the air” has also come under criticism from this quarter on the ground that tight limits “stunt scientific advancement.” 

            The FAA knows how to set standards and certification requirements for aviation equipment and operators.  Major differences with drones are the absence of an on-board operator to help avert collisions, the potentially much greater variety and quality of equipment, and the much larger number of operators to be regulated and subjected to liability for unsafe operation.   Cheerleaders for faster approval of drones are apparently untroubled by the already significant level of accidents involving both military and commercial drone operations. (Craig Whitlock, FAA will miss deadline to integrate drones in U.S. skies, report says, WASHINGTON POST 2 (June 30, 2014.))

            Advocates for opening the airspace to wider use of UAS are entitled to tout the benefits to be gained and money to be made from a new industry.  However the first priority of government regulators must be to protect a system that has delivered a high degree of safety in the aviation sector.  Beyond the challenge of assuring aviation safety is the equally daunting question of homeland security.  Our huge investment in airport and airline security have so far succeeded in preventing further successful terrorist attacks on air transportation in the United States.  The proliferation of commercial drones potentially armed and operated by thousands more people across the country presents new risks to our safety from criminal or terrorist activity that must be addressed by the FAA and the Department of Homeland Security

            Cheap commercial drones carrying high-powered cameras, a favorite new application, can conduct surveillance threatening privacy interests.  They will be stealthy surrogates for gum-shoe investigators trailing debtors, straying spouses, or people falsely claiming disabilities.   At a time when the public has expressed worry, if not outrage, over governmental and commercial surveillance of their lives, magnifying this risk by the expansion of camera-toting drones will not be welcome.  It is small wonder that polling by the Pew Research Center shows that 63% of Americans think it would be a change for the worse if personal and commercial drones are permitted to fly through most U. S. airspace. 

            The FAA’s five-year plan refers without elaboration to the National Environmental Policy Act.  Actions to expand use of drones will require an assessment of environmental impacts, whether or not the FAA itself has the authority to address them.  Environmental impacts are likely to be a function of the number of drones in use, where they are used and for what purpose, and how any limitations can be effectively administered and enforced. The risk-benefit calculation for the use of drones in Alaska or other wide open spaces, like farm fields or many border regions, will of course be different from their use in urban and suburban areas of the country.

            The FAA, however, may not have the last word on commercial drone use.  Restrictions on both launch sites and areas of operation are likely to be derived from land use regulation generally imposed by city and county governments. While the FAA can theoretically regulate noise and pollution from UAS at least by broad type, the FAA is not equipped to adopt the kinds of restrictions needed to protect neighborhoods and resources like wildlife from UAS intrusions adversely affecting local environmental health and amenities.  State and local governments, therefore, may become the city-by-city battleground and city and county commissions may have the final say on whether they want Mr. Bezos’s drones to be the product-delivery system of the future or whether the speedy dispatch of non-critical consumer goods is not worth the price to be paid in community safety, privacy, and peace.