“Mark my word. A combination airplane and motor car is coming. You may smile. But it will come.” – Henry Ford, 1940.
Throughout my life, I have lived in Chicago, Los Angeles, and Seattle—three of the top ten worst cities for traffic. As a result, I have spent more hours stuck in gridlock traffic than I care to admit. Unsurprisingly, I think the advent of the flying car cannot come soon enough. Watch almost any new sci-fi show or movie today featuring a flying car and you will know why: there’s never any traffic in the sky. Save a few outliers like The Fifth Element, modern sci-fi generally shows flying cars being driven only by the police or the uber-wealthy. So despite my strong desire to skip the I-5 parking lot on a Friday afternoon, I think major restrictions on flying car accessibility and travel should be implemented in what I’ll dub “The Blade Runner Model.”
First and foremost, it’s important to lay out the realities of actual flying car use versus what sci-fi presents us. As others have pointed out, “[i]n order for flying cars to be accepted as vehicles for urban mobility, they need to be able to take off and land without the need for a runway amidst the congested urban landscape.” A flying car’s Vertical Take-Off and Landing (VTOL) capability, reminiscent of the Harrier Jump Jet, is really the only feasible way to enable flying cars to be used in cities that feature increasingly crowded streets and public spaces. And while the idea of manually flying a car around Seattle’s iconic Space Needle is certainly appealing, the initial safety data on self-driving cars all but demands that driverless technology be required in all flying cars (at least in urban settings). I mean, driving a normal vehicle is dangerous enough without the possibility of plummeting hundreds of feet to one’s fiery demise.
But who should get the privilege of ascending above the street-level fracas of horns and fender benders? If we watch the flying cars in Blade Runner—colloquially known as “spinners”—I think we have our answer. In both the original and the sequel, spinners seemingly are used by law enforcement and government exclusively. Hear me out. Despite the population explosion necessitating the exploration of off-world colonies and the obvious viability of flying cars, the streets of 2019 Los Angeles are packed with traditional cars but the skies are eerily empty. Why is that? I believe the answer lies in two distinct considerations that the United States should strongly contemplate as flying cars become a reality: first, the Constitutional authority and responsibility of the federal government in implementing nationwide regulation and second, the dangerousness of operation and cost of liability.
The Federal Government Rules the Airspace
Normally, state governments have the inherent law enforcement authority to regulate the licensing and safety of citizens traveling by vehicle within its borders. See Hendrick v. State of Maryland, 235 U.S. 610, 622 (1915). The Constitution’s Supremacy Clause, U.S. Const., Art. VI, Cl. 2, however, invalidates state laws that “interfere with or are contrary to, the laws of [C]ongress.” Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824). Even when “Congress has not enacted an explicit preemption clause, state authority may still be displaced if an intent to preempt is ‘implicitly contained in (the federal statute’s) structure and purpose.’” San Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306, 1310 (9th Cir. 1981) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)).
Accordingly, the Supreme Court and Congress have effectively held that the entire field of aviation is preempted by federal law. See City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 639 (1973); 49 U.S.C. § 40103(a)(1). As a result, the Federal Aviation Administration (“FAA”) has the sole responsibility to “prescribe air traffic regulations in the flight of aircraft (including regulations on safe altitudes) for . . . protecting individuals and property on the ground.” Skysign Int’l, Inc. v. City & Cty. of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002) (quoting 49 U.S.C. § 40103(b)(2)(B)). This makes sense, because it “would be utterly impracticable” for states to bear the burden of coordinating and unifying the vast regulations needed. See Allegheny Airlines v. Vill. of Cedarhurst, 238 F.2d 812, 816–17 (2d Cir. 1956); Hoagland v. Town of Clear Lake, Ind., 415 F.3d 693, 698 (7th Cir. 2005) (“It would be unmanageable—say nothing of terrifying—to have local control of flight routes or of flight times.”). The FAA has taken on this mission, even recently approving an exemption for one company’s “Roadable Aircraft” test as a Light Sport Aircraft, requiring the “drivers” to have the applicable licenses and safety mechanisms in place.
That’s not to say that states would have no power whatsoever over the burgeoning flying car industry. The aforementioned urban landscape would probably necessitate designating takeoff and landing zones for flying car use during the most hazardous portion of the flight. And courts have consistently ruled that local land use, even use directly related to aviation, falls well within the exception to federal aviation preemption. See Gustafson v. City of Lake Angelus, 76 F.3d 778, 789 (6th Cir. 1996) (seaplane landing regulations not preempted); Condor Corp. v. City of St. Paul, 912 F.2d 215, 219 (8th Cir. 1990) (heliport regulation not preempted). Certain other issues related to zoning, trespass, and privacy would likely also fall within the states’ powers. See State and Local Regulation of Unmanned Aircraft System (UAS) Fact Sheet, FAA Office of the Chief Counsel, at https://www.faa.gov/uas/resources/uas_regulations_policy/media/uas_fact_sheet_final.pdf.
Because it has the inherent and unilateral authority to do so and even though every “citizen of the United States has a public right of transit through the navigable airspace,” 49 U.S.C. § 40103(a)(2), the FAA (after some handy statutory amendment) should still restrict flying car travel to emergency and government personnel only. First, the rollout of flying cars is going to be fraught with danger. Like any new technology, we aren’t even aware of the problems likely to be encountered by flying cars in the air. From a simple safety standpoint, the FAA should try to limit the chances of in-air collisions or catastrophic failures by reducing the number of vehicles in the air. It would also give the companies involved a chance to work out the first generation bugs in the technology.
Second, the delay of public implementation would give the state and federal governments time to cope with an entirely new means of travel. Local and state law enforcement would need to entirely revamp their approach to traffic control and criminal pursuit. Landing zones, building flight path obstructions, and land-based servicing facilities would need time to be considered and implemented. Put a different way, there’s simply too many logistical issues that need to be worked out before thousands of private flying cars dot the sky. Maybe once the initial issues are worked out in government-owned and -operated emergency and transport vehicles, then larger corporations—with deep pockets and cautious boardrooms—could begin using this technology to move freight and incrementally increase airspace traffic.
Last, the issue of financial liability weighs heavily in favor of strict restrictions on flying cars initially. For an exploration of that issue, however, you’ll have to check back next week for Part II of the Blade Runner Model.