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Widespread use of drones is now in place around mining, remote exploration works and repair, maritime work, geological survey, agricultural land management, urban transport and delivery, aerial photography, media, and more.
Recreational take up continues to fuel market growth of drones globally, and their increasing use in areas like law enforcement, search and rescue and emergency relief is evolving very rapidly. The range of applications continues to grow at an astonishing pace and clear evidence of this continuing trend is apparent from significant increases in patent filings, foreshadowing new ideas and further evolution.
The exponential growth in the use and deployment of drones globally and of the technology underpinning their scope and operation dictates that the regulatory framework and associated security and commercial arrangements such as insurance will continue to evolve.
Historically, drone regulation has been focused primarily upon safety considerations but increasing attention will need to be paid to privacy and data protection laws. Globally, there are varying levels of maturity in such legislation ranging from comprehensive, principles-based data protection regimes, such as Europe's General Data Protection Regulation (GDPR), to the patchwork of sectoral and state laws in other jurisdictions.
The development of a consistent regulatory and operational framework for drones must also consider design and product liability issues which in turn are closely connected to the development of drone-specific airworthiness standards, including mandated 'fail-safe' functions.
Global action to develop a harmonized approach and international coordination in relation to drones are more than worthy objectives — they are essential given the need to accommodate and integrate the international use of drones. The achievement of these objectives is no easy task as the regulation of ever-increasing drone-related operations and activities is proving to be a challenge for national aviation safety authorities around the world, not just domestically but also in a coordinated global sense. It is a challenge that must be embraced and managed.
It is generally accepted that one of the key challenges facing regulators globally in fully realizing the potential of drones is their successful integration into the non-segregated airspace without reducing existing capacity and while maintaining safety levels currently imposed and minimizing potential dangers to other aircraft, passengers, and other persons and property on the ground.
Organisations such as the International Civil Aviation Organisation (ICAO) and the European Union Aviation Safety Agency (EASA) have vital roles to play in this regard and more broadly. The ICAO Model UAS Regulations Parts 101, 102 and 149, supported by Advisory Circulars, and its publication of Standard and Recommended Practices (SARPs) are potentially of very significant benefit to member states in reducing time and costs associated with the regulation of drones. These Regulations are based upon a review of existing regulations in Member States in a bid to share best practices that can be implemented by countries seeking to improve, or introduce, UAS regulation.
EASA is another transnational organisation attempting to bring some much-needed clarity to unmanned airspace. Established in 2002 with the aim of ensuring safety and environmental protection within the European Union, its goals in relation to UAS include managing the safe introduction of UAS into the airspace (European Plan for Aviation Safety (EPAS) 2020-2024 14.1) as well as the admirable goal of simplifying the regulatory sphere by adopting a single regulatory and certification process among Member States. Such a clear transnational policy will be of assistance in aiding the development of both safety and technology as well as simplifying the process for operators across the EU. There is little doubt that embracing an internationally coordinated implementation strategy will enable the potential benefits of this emerging technology to be more quickly realised while at the same time ensuring society is protected from its harmful risks – at least from a safety perspective.
At a national level, especially within federal jurisdictions, the interplay between national, state and local (council, local authority or municipal) laws can make for a complex interaction. For the sake of consistency and certainty, aviation law is generally within the sole remit of the national government (see, for example, the judgment of the High Court of Australia in Airlines of New South Wales Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54) and there are strong arguments that, in relation to commercial aviation using recognised aerodromes, it is (for the most part) clear cut where the boundaries of national and local legislation are drawn. In the United States, for example, the Supremacy Clause of the US Constitution (U.S. CONST. art. VI., cl. 2. 118) provides that federal laws are supreme and therefore preempt (override) conflicting state and local regulations. Where the federal government has made clear its intention to be the sole regulator of an area, preemption is relatively straightforward. Difficulties arise where the federal government has not expressly preempted an area particularly where there is crossover with areas traditionally left to the states. Similarly, in Australia, the scope of Commonwealth “aviation” powers do not extend to commercial aspects of aviation, nor, from the recent decision of the High Court in Work Health Authority v Outback Ballooning Pty Ltd (2019) HCA 2 does the body of Commonwealth civil aviation laws exclude the application of state and territory occupational health and safety laws.
The battle for control between national and local government is nothing new, and while on the one hand it may seem sensible for control of drones, like aviation, to remain with the national government, unlike aviation, drones do not solely operate along agreed flight paths, from specified aerodromes, and are operated by remote pilots with varying degrees of skill and experience. As such, there is an argument that local authorities will be far more familiar with the risks of operating drones in local areas and therefore better able to regulate this.
However, the potentially overlapping requirements of different aspects of local and national legislation provide added complexity to the regulatory oversight of operators, particularly those that may cross state boundaries in the course of their operations. Accordingly, there are strong arguments in jurisdictions like the United States and Australia for legislative reform to clarify or better define jurisdictional boundaries. (See for example, L Page, ‘Drone trespass and the line separating the national airspace and private property’ (2018) 86 George Washington Law Review 1152, 1173-1178 where it is recommended that the FAA define navigable airspace so that there is a bright-line height minimum describing where the FAA's exclusive jurisdiction ends, where drones must fly above, and where in the airspace states can regulate without the fear of Federal preemption).
Moreover, it should be fairly obvious that while a national government is in the best position to establish uniform regulatory requirements, it lacks the manpower and local presence to comprehensively enforce same. Local enforcement clearly requires the participation of local governments and police forces. In light of this mutual need, it seems fairly clear that some form of cooperative federalism is needed in this area.
Regulatory intervention ideally needs to tread a path that does not stifle innovation and is not so “heavy handed” as to unduly impact commercial and recreational uses of drones. This is no easy task because the rapid development of drone technology in the industry requires active and ongoing regulatory attention, and regulators are still trying to assess the various risks.
Sensitivity to this measured approach is very evident from a recent communication from the European Commission entitled Sustainable and Smart Mobility Strategy – putting European transport on track for the future (Brussels 9 December 2020, COM 789 Final). This document emphasizes the importance of a coordinated European approach to connectivity and transport activity to overcome crises such as the COVID-19 pandemic and to strengthen the European Union’s strategic autonomy and resilience. Drones are an integral part of the Commission’s vision for innovative and sustainable technologies in transport and the Commission commits to facilitating technological development and to establishing an agile regulatory framework to support the deployment of solutions on the market.
This is a very encouraging communication as coordinated action has the potential to drive international standards for drones akin to that for manned aviation and bring enormous benefits in terms of safety, efficiency of operations, uniformity and technological innovations.
So-called Regulatory Sandboxes and Experimentation Clauses allow regulators to review the social and economic viability of new technology, how the technology fits in with current regulations, and what changes need to be made to counter risk effectively. These Sandboxes are identified by the Council of the European Union as tools for an innovation-friendly, future-proof and resilient regulatory framework that masters disruptive challenges in the digital age (Council of the European Union 13026/20). For example, the CAA has launched two challenges (the Future Air Mobility Challenge and the Beyond Visual Line of Sight in Non-Segregated Airspace: Regulatory Sandbox Challenge) to provide pathways for the trial and approval of innovative solutions and to assist in shaping the requirements for future regulations. Similarly, the FAA from October 2020 commenced a new program called BEYOND to tackle the challenges of UAS integration. The FAA states that “(t)he program will focus on operating under established rules rather than waivers, collecting data to develop performance-based standards, collecting and addressing community feedback and understanding the societal and community benefits, and to streamline the approval processes for UAS integration.
Most aviation laws and regulations have centered around the delivery of aviation services by aviation companies to users of discreet aviation services (for example, passenger and cargo transit by aviation carriers to consumers of those same aviation services). In the age of drones, however, companies with historically no aviation experience are pivoting their offerings to take advantage of drones’ technology and are entering into and impacting the aviation sector.
From a maritime perspective, for instance, a classic aviation regulator would have little or no knowledge of the risks associated with offshore oil rigs, ocean going vessels, port operations, confined tanks, climate environments inside cargo holds and storage tanks and facilities loaded with various commodities, deep sea mining at 3 km below the ocean’s surface, or maritime law. With drones now used so heavily in sectors such as maritime, offshore oil and gas, natural resources, mining and transport, it could be argued that drones should be regulated separately from classic aviation or, at the very least, consideration should be given to some dual regulatory oversight. There are a number of good examples internationally; for example, offshore oil and gas rigs in Australia are regulated by two authorities: the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) and the Australian Maritime Safety Authority (AMSA), with the two authorities cooperating in their dealings in relation to 'maritime' and 'offshore' assets and services.
At the very least there will be a necessity to cross-pollinate and enhance regulatory agencies with knowledge and skills drawn from sectors recognized to be heavy users or potential users of drone technology. In other words, to create “purpose built” authorities.
An Australian Senate Standing Committee on Rural and Regional Affairs and Transport, Regulatory requirements that impact on the safe use of Remotely Piloted Aircraft Systems, Unmanned Aerial Systems and associated systems (31 July 2018) ch 8 concluded that in order to balance the important challenges of ensuring public and aviation safety, and encouraging innovation, a nation-wide enforcement regime, including powers to issue on-the-spot-fines and report infringements, as part of a coordinated “whole of government” policy, must be created.
The distribution of responsibility for the regulation of drones, their deployment and operations across various agencies or departments of government is normal. For example, in the United Kingdom, regulation is split between various organisations including the Civil Aviation Authority ("CAA"), Health and Safety Executive ("HSE"), Police and Air Accident Investigation Branch ("AAIB"). In Australia, the Commonwealth Department of Infrastructure, Transport, Cities and Regional Development currently has carriage of this whole-of-government framework to manage drones and as a first step in this process, the department is working with Commonwealth agencies, state government and industry to develop a national “whole of government” policy position. It is expected that this will form the basis of future work to put in place a range of measures to manage drones that will facilitate innovation from the drone sector, while ensuring adequate controls to address the range of risks and impacts.
As a firm Clyde & Co remains committed to mapping and understanding risks associated with the use of drones alongside a growing network of cross-sector experts and collaborators, to help our clients navigate the rapidly evolving risk landscape they face. If you would like to understand how we can help you in this regard please contact Maurice Thompson, Dr Tony Tarr and Julie-Anne Tarr.