Amazon, Inc.’s fledgling drone shipping service, “Prime Air,” and similar services, may pose a new threat to private property rights. Companies that ship by drone would likely have to fly the drones over private land. But who owns the low-altitude airspace above private land? That issue is unsettled, but the common law supports the view that low-altitude airspace belongs to the landowners beneath. If that is correct, companies like Amazon have two main options to get drone shipping off the ground: (1) pay the landowners on the intended routes for an easement through their low-altitude airspace, or (2) count on the government to compel easements through these spaces.
The second option presents a Takings Clause problem. Because forced easements of flight intrude on landowner rights, landowners burdened by drone easements could potentially prove a per se taking. But even if drone easements are not per se takings, case law and the “character of the govern- ment action” factor in the Penn Central analysis give landowners a fighting chance to prove a regulatory taking.
Overall, the Takings Clause could be a valuable tool for both economic efficiency and equity, requiring beneficiaries of drone easements to compen- sate those burdened by the easements. If drone shipping takes off in the U.S., current law may ensure that the negative externalities will not fall solely on the surface landowners.
Brian M. Miller,
Drone Delivery and the Takings Clause,
Tex. A&M J. Prop. L.
Available at: https://doi.org/10.37419/JPL.V6.I2.3