Drone Delivery and the Takings Clause

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.