Federal Preemption & State Critical Infrastructure Drone Laws

Congress vested the federal government with exclusive sovereignty over the navigable airspace of the United States. The FAA regulates how an aircraft, including a small unmanned aircraft, is flown. That authority is broad, but it has not been read to occupy every field of law that touches a drone flight.

States and local governments retain their traditional police powers over privacy, trespass, voyeurism, takeoff and landing on land they control, prison contraband, voyeurism in places with a reasonable expectation of privacy, and a tailored category of security restrictions over critical infrastructure. The FAA itself acknowledged this division in its 2023 Fact Sheet.

In 2024, the Fifth Circuit upheld the bulk of Texas Government Code Chapter 423 against a facial First Amendment and preemption challenge in NPPA v. McCraw. The court did not foreclose as-applied challenges, conflict preemption arguments, or void-for-vagueness defenses on a different factual record.

This page covers the legal architecture, the case law, the state critical infrastructure statutes you are most likely to encounter as a commercial pilot, and concrete steps to fly defensively and respond if you are approached or charged. It is not legal advice. If you are affected, retain counsel.

The starting point is 49 U.S.C. § 40103: the United States has exclusive sovereignty of airspace, and every citizen has a public right of transit through the navigable airspace. Congress has delegated to the FAA the authority to regulate the use of that airspace and the operation of aircraft within it.

In City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973), the Supreme Court struck down a municipal curfew on jet operations as preempted by the Federal Aviation Act and the Noise Control Act. The Court emphasized the pervasiveness of federal control over aircraft operations and noise. Burbank is the high-water mark for field preemption of operational rules and continues to be cited in drone preemption arguments today.

In Singer v. City of Newton, 284 F. Supp. 3d 125 (D. Mass. 2017), a Massachusetts district court held that four provisions of a Newton, Massachusetts municipal drone ordinance were preempted by federal law, including a 400-foot ceiling for hobbyist flight, a registration regime parallel to the FAA's, a sweeping ban on flight over private property without consent, and a sweeping ban on flight beyond the operator's line of sight. The opinion is widely cited for the proposition that local rules dictating where, how high, and under what authorization a drone may fly intrude on the FAA's field.

The doctrinal vocabulary matters. Federal courts analyze drone preemption under three theories: express preemption (Congress has said so), field preemption (Congress has occupied the entire regulatory area), and conflict preemption (a state law makes compliance with federal law impossible or stands as an obstacle to federal objectives). The federal aviation statutes do not contain a broad express preemption clause for state law affecting drones, so most preemption fights are fought on field and conflict grounds.

Case law to date has not held that the FAA occupies every field that touches a drone flight. Courts and the FAA itself have recognized that states may legislate against the harms caused by what a drone is used for, even where the FAA fully controls how it flies.

In 2023, the FAA published its updated State and Local Regulation of Unmanned Aircraft Systems Fact Sheet. The Fact Sheet is the agency's own statement of where it believes its authority ends. It is not binding on courts, but it is highly persuasive and is cited by the agency in amicus briefs and by commercial operators in preemption litigation.

Notably, the Fact Sheet does not enumerate critical infrastructure. The agency neither claims that critical infrastructure protection is preempted nor blesses any particular state CI statute. The categorical lists below paraphrase the agency's own examples on each side.

Roughly fourteen states have enacted drone-specific critical infrastructure statutes that we have been able to verify against authoritative sources. The numbers shift as new statutes are enacted, amended, or struck down. A typical CI statute follows a recognizable structure:

• A definitional section enumerating covered facility categories (power, water, oil and gas, chemical, telecom, rail, ports, prisons, sometimes more)
• A prohibition on operating a UAS over, near, or within a specified distance of a covered facility, often with a ground-distance and an altitude floor
• A criminal penalty (usually misdemeanor, occasionally felony) and sometimes a civil cause of action
• A federal-authorization carve-out exempting operations conducted under FAA Part 107, a Certificate of Waiver or Authorization (COA), or other federal authority

As a worked example: Arkansas Code § 5-60-103, “Unlawful use of unmanned aircraft system,” lists eight covered categories (electrical generation, petroleum refining, chemical or rubber manufacturing, petroleum or chemical storage, railroad operating facilities, communication towers, food processing, and correctional facilities). Violation is a Class B misdemeanor on first offense and a Class A misdemeanor on subsequent offense. Arkansas also attaches a separate civil cause of action under § 16-118-111, with actual damages or $10,000, whichever is greater, trebled if the conduct was for profit, and recoverable attorney's fees. The statute exempts operations conducted pursuant to an FAA Certificate of Authorization. The latter point is important: a Part 107 operator with a formal FAA authorization document has a built-in statutory defense.

Other state CI statutes follow similar patterns with local variation. Florida upgraded its CI offense from misdemeanor to third-degree felony in 2025. Tennessee classifies its CI surveillance subdivision as a Class E felony. Oklahoma retained civil liability after a 2021 amendment removed the criminal penalty. Wisconsin's 2025 Act 194 is brand new and untested. Virginia incorporates the federal definition of critical infrastructure at 42 U.S.C. § 5195c, which sweeps broadly. Each state's page on this site carries the statutory citation, penalty class, FAA carve-out status, and covered categories where we have been able to verify them.

The variation matters. A flight that would be lawful in one state may be a misdemeanor in a neighbor and a felony in another. Operators with multi-state work should know what applies in every jurisdiction where they fly.

Singer v. City of Newton: the win

In Singer, the District of Massachusetts struck down four provisions of a municipal drone ordinance on field preemption grounds: a 400-foot altitude ceiling for hobbyists, a parallel registration regime, a categorical ban on overflight of private property without consent, and a categorical ban on flight beyond the operator's line of sight. The opinion is narrow in jurisdiction (one district court) but useful in framing: it draws a clean line between rules that dictate the operation of an aircraft (preempted) and rules that protect locally regulated interests like privacy, takeoff and landing zoning, or harassment (typically not preempted).

NPPA v. McCraw: the loss, but with limits

In National Press Photographers Association v. McCraw, 90 F.4th 770 (5th Cir. 2024), the Fifth Circuit reversed a district court ruling that had struck down portions of the Texas drone statute on First Amendment grounds. The Fifth Circuit held that the surveillance and no-fly provisions of Texas Government Code Chapter 423 regulate flight conduct, not speech, and applied intermediate scrutiny rather than strict scrutiny. The court rejected the argument that federal aviation law field-preempts the Texas regime as a whole, and it upheld the no-fly zones over critical infrastructure facilities and sports venues against the facial challenge presented.

Critically, the Fifth Circuit explicitly preserved as-applied challenges. The opinion does not bless every conceivable application of Chapter 423. A pilot prosecuted under the statute on facts the Fifth Circuit did not consider (commercial photography from outside a covered facility, newsgathering at high altitude over a refinery, and so on) retains the ability to argue that, as applied to that specific conduct, the statute violates the First Amendment or conflicts with federal law.

What's still live

• Conflict preemption. Where a state statute would punish conduct that the FAA has expressly authorized (a Part 107 operation with a waiver, a public aircraft operation, an authorized COA), conflict preemption remains available.
• As-applied First Amendment challenges. McCraw rejected facial challenges. As-applied challenges, especially in newsgathering and journalism contexts, were left open by name.
• Void for vagueness. Some state CI statutes use phrases like “in proximity” or “in a manner that interferes” that have not been litigated. A pilot charged under such language has fair-notice arguments to make.
• Dormant Commerce Clause. A state law that effectively forecloses interstate drone commerce, or that discriminates against out-of-state operators, may face dormant Commerce Clause scrutiny.

Whatever the state of the law, the operational reality is that pilots fly through it. A few habits substantially reduce the risk of an enforcement encounter and improve the defensibility of any flight that becomes the subject of one.

1. Know what is covered in every state where you fly. The state pages on this site carry verified citations and covered categories where we have been able to confirm them. Pre-flight planning that includes a CI check is cheap insurance.
2. Get written consent when you can. Most CI statutes condition the prohibition on the absence of facility-owner consent. A signed authorization on file is dispositive in most jurisdictions and converts a felony risk into a documented commercial engagement.
3. Use the FAA-authorization carve-out when it applies. Most state CI statutes exempt operations conducted under federal authority. A Part 107 certificate, an active waiver, a Section 333 exemption, or a COA can all anchor a statutory defense. Carry your authorization documents at every flight.
4. Build a defensible flight log. Pre-flight checklist completed, weather checked, airspace verified, B4UFLY queried, LAANC authorization obtained where required, mission briefing completed, written client authorization on file, post-flight log with altitude, time, and location. Operators who already use job and dispatch software can pull this from existing records. The point is that if a prosecutor asks where you were and what you were doing, you have an answer with timestamps.
5. Understand the dual-altitude regime. Part 107.51 caps small UAS operation at 400 feet AGL (with narrow exceptions for structure inspection). The FAA has historically asserted strong control over the airspace above 400 feet, while many state CI and privacy statutes are framed in terms of low-altitude flights closer to the ground. The structural insight is that the FAA owns the sky, the states reach for what is happening near the ground, and Part 107 puts your aircraft in the zone the states care about. You cannot fly higher than 400 feet to escape state law because Part 107 forbids it.
6. Use the Section 2209 process where relevant. Section 2209 of the FAA Extension, Safety, and Security Act of 2016 directed the FAA to establish a process for designated facilities to petition the agency for federal flight restrictions. Where a fixed-site facility wants overflight protection, the federal route is available.
7. Do not fly blind into political risk. Pipelines under active controversy, energy facilities tied to litigation, prisons, government buildings during a protest, and similar sites carry both legal and practical risk well beyond the statutory penalty. Decline the job or coordinate with counsel and the facility owner first.

This is general guidance, not legal advice. If you are contacted by law enforcement or a private security officer during or after a drone flight, your conduct in the next ten minutes can shape the next ten months.

Pilots who believe a state CI statute reaches too far have several legitimate avenues for change. None is fast. All are more effective when undertaken in coordination with counsel, industry associations, and other affected operators.

• Clean as-applied challenges. The Fifth Circuit in McCraw invited them by name. A well-documented commercial flight that was charged under a state CI statute is the kind of factual record on which an as-applied First Amendment, conflict preemption, or void-for-vagueness challenge can be litigated.
• Section 2209 rulemaking advocacy. Engaging in the FAA's rulemaking process for fixed-site facility restrictions keeps the federal framework, rather than a patchwork of state statutes, as the operative regime.
• State legislative engagement. Most state CI statutes were enacted with little input from the commercial drone community. Operators who testify at committee hearings, work with state aviation associations, and offer constructive amendments often shape the final text.
• Coalitions with the press. Newsgathering and First Amendment interests align with commercial operator interests on most CI questions. The Reporters Committee for Freedom of the Press and similar organizations litigate, file amicus briefs, and engage legislatively.
• Industry groups. AUVSI, AOPA, the Commercial Drone Alliance, and the Small UAV Coalition all engage on preemption and CI statutes at the federal and state levels. Membership is not required to benefit from their advocacy, but participation amplifies it.
• Federal preemption legislation. Congress has repeatedly considered, and not enacted, an explicit preemption framework for drone operations. Operators who want a national standard can engage their congressional delegation directly.