The Sky’s the Limit, Literally: How Drones Can Help Protect the Environment
By: Megan O’Connor, Staff Contributor
As technology advances, the question often comes up of what the new hot item will be. Right now the new technology that is generating a lot of noise is drones (known formally as “unmanned aircraft systems”). A drone is a small aircraft that can be piloted remotely with a ground control system or by an autonomous onboard computer. Drones are well-known for their military functions, but they have numerous other uses as well, for instance in law enforcement, delivery services, and even the entertainment industry.
Drones can also serve a range of beneficial functions in the environmental and agricultural sectors. Because they are small and lightweight, drones can be equipped with video cameras, infrared thermal imagers, and radar. Video capability can have many beneficial uses for farming. In fact, the Association for Unmanned Vehicle Systems International predicts that 80% of drone use will be in agriculture. Drones can be used to monitor farmland or livestock, to look for underwater areas or bug infestations, or to create digital maps of the crop fields. Additionally, the Federal Aviation Administration (FAA) announced the approval for the use of RMAX—a small, remotely operated helicopter—to apply pesticides to crops. RMAX will allow farmers to apply pesticides in areas that are otherwise hard to reach, like hilly vineyards. Plus, this technology efficiently targets pesticide application and thus cuts back on the amount of chemicals required.
Video-equipped drones can also have beneficial applications for wildlife conservation. The drones could be used to keep a video record of endangered species and protect them from poachers. Because of their agility and compact size, drones are ideal for monitoring endangered species and tracking their migration patterns. A pilot program in South Africa has determined that the use of drones has already reduced poaching of rhinos by up to 96%. Scientists are also using drones to monitor the health of whales. Hexacopter drones are being used not only to take pictures of the whales but to collect water droplets from their spout and bring them back to labs for analysis. Finally, footage that is captured on drones can help raise public awareness of previously overlooked conservation efforts.
Forestry is yet another area in which drones can play vital roles, for instance by helping to protect against the spread of wildfires and monitoring forest health. The United States Forest Service already uses drones to monitor forest fires. Another potential use for drones is to help facilitate and manage controlled burns. A major challenge with controlled burns is that they do not burn with enough intensity to burn the roots of the shrubs, which is necessary for grass to regrow. Although more intense fires are needed, they can be erratic and hard to control. Dirac Twidwell, an ecologist from the University of Nebraska, is developing a way for drones to help with this problem. He has developed fireball igniters called “dragon eggs” that can be lobbed out of a miniature drone to help the controlled fire burn at a higher intensity. Twidwell believes that these drones will enable fires to be managed more safely and inexpensively, while increasing the likelihood of grass regrowth in the Great Plains.
Amazon might have ignited the discussion of drones by bringing them into the public’s consciousness with their Prime Air project, but this service may benefit the environment as well since drones do not use fossil fuels. Most of the current drone models operate with electric motors that run on rechargeable batteries, meaning that they do not produce the high levels of carbon dioxide that are associated with planes and helicopters. Using a drone delivery service can cut carbon dioxide emissions by at least half compared to individual trips to the store by consumers, and carbon dioxide emissions can be reduced by 80% to 90% if companies deliver based on routes that cluster customers together.
Finally, drones can help regulate water and air pollution. Drones are being made with the ability to scoop up water samples to help ecologists and the oil industry keep track of or detect oil leaks or the presence of invasive species. The compact and aerial nature of drones are beneficial for testing ponds or lakes in Canada or Alaska that are only a few acres in size; walking or taking a boat to these areas to get samples is nearly impossible. Currently some drones can even preform a rudimentary analysis on the water samples they collect, which could cut down on the amount of trips needed to collect and analyze water samples.
Similarly in the air pollution context, drones can identify and control methane leaks in the oil and gas industry. Regulatory agencies can use drones to test the ambient air to make sure companies are complying with the Clean Air Act. Drones equipped with high-resolution cameras, onboard thermal imaging, and other remote-sensing technologies can provide proof from outside a site’s immediate boundaries that the regulated entity is violating the law. Drones can be particularly valuable to agencies like the EPA, which have limited resources in terms of funding and personnel available to enforce environmental laws.
Despite the myriad beneficial uses of drones, environmentalists in the United States have been slow to embrace them, due to skepticism among the public as well as drones’ questionable legal status. The use of drones in the United States is controversial. According to a 2016 poll, 43% of the public opposed the use of drones for commercial purposes, while 23% favored the use and 35% were in the middle. Reduced privacy is the main concern, since drones can fly within several feet of a person’s home or property. Such concerns implicate the Fourth Amendment, which protects a citizen’s reasonable expectation of privacy from governmental intrusions. However, constitutional privacy protections are more likely to arise in the area of criminal law enforcement rather than in the context of environmental uses. Most applications of drones for environmental purposes will involve exceptions to the Fourth Amendment privacy protection such as the open fields doctrine, public navigable space, closely regulated industry exception, and general public usage. Nevertheless, even if drones survive constitutional challenges, another hurdle to their use for environmental purposes is robust regulation by states and the FAA.
The FAA recently acknowledged that the popularity of drones is not a fad and predicts that there could be as many as seven million drones sold in the United States by 2020. Drones are not going away; if anything, their popularity is expected to grow. Although there are legitimate privacy concerns with using drones, the benefits outweigh these risks when it comes to protecting the environment. Drones can be helpful to environmentalists in a multitude of ways, and the only obstacle to achieving their full potential in the United States is stigma and perceived legal hurdles. So, the question is: Will the environmental benefits of using drones enable them to reach their full potential in the United States, or will fear of new technology prevail?
 Brittany Wright, Big Brother Watching Mother Nature: Conservation Drones and Their International and Domestic Privacy Implications, 17 Vt. J. Envtl. L. 138, 140 (2015).
 Id. at 139.
 U.S. law enforcement agencies have started to use drones for surveillance purposes because they can travel through public airways undetected and with little threat to persons or property. Matthew R. Koerner, Drones and the Fourth Amendment: Redefining Expectations of Privacy, 64 Duke L. J. 1129, 1131-33 (2015).
 In 2013, Amazon helped put drones in the public spotlight when it released a video for Prime Air, the company’s research project aimed at using drones to pick up and deliver packages to homes within thirty minutes. Martin LaMonica, Yes, drones really can help the planet, GreenBiz (June 4, 2014, 8:00 AM), https://www.greenbiz.com/blog/2014/06/04/drones-can-help-planet.
 During Lady Gaga’s Super Bowl LI halftime show, 300 shooting star drones supplied by Intel were used to provide a “colorful swirling backdrop” to her performance. Intel’s drones have also been used in synchronized shows at Disney World. See Andrew Liptak & Rich McCormick, The Super Bowl halftime show drones weren’t flying live, CNBC (Feb. 6, 2017, 12:59 PM), http://www.cnbc.com/2017/02/06/the-super-bowl-halftime-show-drones-werent-flying-live.html.
 Michael J. Schoen & Michael A. Tooshi, Confronting the New Frontier in Privacy Rights: Warrantless Unmanned Aerial Surveillance, 25.3 Air and Space Lawyer (2012) (noting that certain drone models can exceed the speed of sound and can stay airborne for a few weeks).
 See LaMonica, supra note 4.
 See id. (explaining that universities specializing in agriculture can use drones to monitor their experimental crops by getting up to the minute data).
 Alison Gillespie, FAA gives approval to pesticide-spraying drone, Dispatches-Frontiers in Ecology and the Environment (June 1, 2015), http://onlinelibrary.wiley.com/doi/10.1890/1540-9295-13.5.236/epdf.
 The RMAX is already being used to spray pesticides in Japan. A Yamaha spokesperson commented, “It’s so common in Japan, it’s looked at like a tractor in the field.” Id.
 The RMAX would be very beneficial to grape growers in California who are “anxiously waiting” to find out the drone’s costs. Id.
 However, one fear is that the versatility of the RMAX may increase the agro-industrial footprint because areas not currently being treated may be opened to development. Id.
 LaMonica, supra note 4.
 See Victoria, 3 Crucial Environmental Benefits of Drones, Drone Futures.org (Oct. 20, 2015), http://dronefutures.org/3-environmental-benefits-drones.
 Id. (noting that scientists can fly drones over whales to see otherwise unobservable behavior).
 See Victoria, supra note 14.
 See Unmanned Aircraft Systems, U.S. Forest Service, https://www.fs.fed.us/science-technology/fire/unmanned-aircraft-systems (last visited February 15, 2017).
 Laura Parker, Drones Shoot Fireballs to Help Control Wildfires, Nat’l Geographic (Aug. 4, 2016), http://news.nationalgeographic.com/2016/08/setting-controlled-burn-fires-drones-fireballs.
 Controlled burns are man-made fires that are used to drive out trees in the Great Plains to encourage the growth of grasses. Id.
 Dragon eggs are plastic spheres the size of ping-pong balls. Id.
 See Victoria, supra note 14.
 Adam C. Watts, Vincent G. Ambrosia, & Everett A. Hinkley, Unmanned Aircraft Systems in Remote Sensing and Scientific Research: Classification and Considerations of Use, 4.6 Remote Sensing 1671, 1676 (2012).
 Victoria, supra note 14.
 See Andrew Rosenblum, Drones That Can Suck Up Water Hunt Oil Leaks, Invasive Species, MIT Technology Review (Jan. 20, 2015), https://www.technologyreview.com/s/534271/drones-that-can-suck-up-water-hunt-oil-leaks-invasive-species.
 See id.
 See id.
 Lucas Satterlee, Climate Drones: A Tool for Oil and Gas Air Emission Monitoring, 46 Envtl. L. Rep. News & Analysis 11069, 11,071 (2016).
 See id. at 11,074.
 Currently the EPA must concentrate its efforts on more serious or significant cases because of the lack of resources. See id. at 11,073.
 See Wright, supra note 1.
 Joan Lowy & Jennifer Agiesta, AP-GfK Poll: Americans Skeptical of Commercial Drones, Associated Press (Dec. 19, 2016), http://ap-gfkpoll.com/featured/findings-from-our-latest-poll-10.
 See Wright, supra note 1, at 140-41.
 Katz v. United States, 389 U.S. 347, 348-49 (1967).
 Drones used for environmental purposes will likely be operated in fields or open areas within large industrial complexes, subjecting these uses to the “open field” doctrine under which privacy protections do not apply. See Satterlee, supra note 35, at 11,076.
 Most drones being used for environmental projects will fly in public navigable air space due to FAA regulations. The Supreme Court has held that anything flown in public navigable air space does not violate an expectation of privacy. See Satterlee, supra note 35, 11,076-77; John Villasenor, Observations from Above: Unmanned Aircraft Systems and Privacy, 36 Harv. J. L. & Pub. Pol’y 457, 490-93 (2013).
 Drones that are used by agencies for air pollution to monitor regulated entities will likely fall under the regulated industries exception, meaning that they are so pervasively regulated that they lose their reasonable expectation of privacy protection. See Satterlee, supra note 35, at 11,078.
 Drone technology is becoming so popular that soon they may be deemed a sense-enhancing technology that is in general public use, thereby diminishing a citizen’s expectation of privacy. See id. at 11,077.
 Between the 2013 and 2014 state legislative sessions, more than forty states introduced bills addressing or limiting the use of drones. See Kurt W. Smith, Drone Technology: Benefits, Risks, and Legal Considerations, 5 Seattle J. Envtl. L. 291, 295 (2015).
 Michael Huerta, Drones: A Story of Revolution and Evolution, Federal Aviation Administration, https://www.faa.gov/news/speeches/news_story.cfm?newsId=21316 (January 6, 2017).