Key Takeaways

• A multistate coalition has petitioned the U.S. Court of Appeals for the Second Circuit to set aside the Federal Aviation Administration’s (FAA) nationwide drone-delivery environmental review. 15 states and Harris County, Texas (Petitioners), filed a lawsuit on September 28 challenging FAA’s July 28, 2026, Final Programmatic Environmental Assessment (PEA) and Finding of No Significant Impact/Record of Decision (FONSI/ROD) for Drone Package Delivery Operations in the United States. The short initial filing does not yet state the merits arguments.
• The Petitioners’ comments on the PEA preview their likely merits arguments. Their comments contend that a programmatic, Environmental Assessment (EA) and FONSI cannot adequately evaluate location-specific and cumulative effects of potentially high-volume, low-altitude delivery operations. They also challenge FAA’s consideration of noise, wildlife, lithium-battery and fire risks, hazardous materials, cybersecurity, alternatives, and mitigation. 
• The PEA remains operative while the case proceeds. FAA states that the PEA can support later authorizations where its analysis is adequate, while retaining discretion to require project- or operation-specific National Environmental Policy Act (NEPA) review. Since signing the PEA, FAA has continued to conduct site-specific environmental reviews for major proposed drone-delivery operations.
• The challenge comes amid reports of rising local concerns about drone delivery operations. Recent media reports have highlighted growing local opposition to drone delivery operations, largely grounded in concerns about noise and visual pollution, as well as potential safety and privacy issues. 

Background

On July 28, 2026, FAA signed the PEA and FONSI/ROD for commercial drone package delivery operations under 14 C.F.R. Part 135 (notice of availability published on July 30, 2026 (91 Fed. Reg. 48,208)). The PEA followed a 45-day comment period that closed on January 23, 2026; the Federal Register reports 264 comments.

The PEA is intended to provide a national programmatic baseline for later FAA decisions on individual operator authorizations. FAA acknowledges that exact hub locations and operating areas are generally unknown until an operator applies, and states that it may require additional project- or operation-specific NEPA documentation where more detailed analysis is needed.

The Petition for Review

The petition, filed in the Second Circuit, is brought by New York, Arizona, California, Colorado, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, New Mexico, Oregon, Rhode Island, Washington, Wisconsin, and Harris County, Texas. It seeks review and vacatur of the PEA/FONSI/ROD under 49 U.S.C. § 46110 and the Administrative Procedure Act. To date, no stay motion has been filed, and FAA may continue relying on the PEA.

Likely Focus of the Challenge

Comments filed by Petitioners (the states of Vermont and Connecticut signed onto these comments but not the Petition) detail the arguments that likely will form the basis of their challenge to the PEA, including: 

• Nationwide scope, forecasting, and the level of NEPA review. The multistate commenters argue that aggregating effects at a nationwide scale masks local impacts and that FAA relied on an insufficient picture of reasonably foreseeable growth. They urge FAA to prepare a nationwide programmatic environmental impact statement, followed by at least a site-specific EA for each hub or material Part 135/Operations Specifications approval.
• Noise and cumulative low-altitude overflights. Petitioners are likely to contend that the PEA fails to account for non-aviation noise sources and their contribution to potential baseline noise conditions at specific locations and does not adequately consider impacts to “noise sensitive” land uses. They may also contend that FAA’s Day-Night Average Sound Level metric is inadequate and that FAA should more closely analyze clustering, hover time, nighttime operations, local ambient noise, multiple hubs, and cumulative exposure.
• Wildlife, batteries, fire, hazardous materials, and public-safety interactions. Petitioners fault the PEA’s treatment of biological resources and repeated wildlife exposure, lithium-ion battery thermal-runaway and fire risks, hazardous-material and solid-waste issues, powerline interactions, and potential consequences of cyber compromise or operations near sensitive infrastructure.
• Alternatives and mitigation. Petitioners argue that FAA considered too narrow a range of alternatives and relied too heavily on mitigation features or operating assumptions that may not be mandatory, monitored, or enforceable. They seek objective triggers for supplemental review and enforceable restrictions addressing variables such as location, operations, aircraft characteristics, wildlife conditions, and wildfire risk.

FAA’s Likely Defense to the Petition

In its Responses to Comments, FAA affirms that at present “the exact locations of proposed drone package deliveries on a national scale are currently unknown” and will remain unknown until operators seek new Operations Specifications and “additional tiered environmental reviews may be warranted on a case-by-case basis as applications are received for drone package delivery operations.” However, the agency maintains the PEA will enable it “to comply with its NEPA requirements for subsequent requests for authorizations from individual drone operators proposing to conduct package delivery operations in areas of the U.S.” and will conduct additional review and require project-specific or operation-specific NEPA documentation where it determines it is needed. FAA will likely emphasize that NEPA is a purely procedural statute and FAA’s NEPA review deserves deference (Seven Cnty. Infrastructure Coal. v. Eagle Cnty., CO, 605 U.S. 168 (2025)), and that Congress, in Section 909 of the FAA Reauthorization Act of 2024 (note to 49 U.S.C. § 44801), directed the agency to develop programmatic approaches for environmental review of advanced aviation operations.

Scope of FAA Authority Over Land Use and Privacy

Other commenters contended FAA “should identify and regulate where hubs can be located” and urged the agency to “ensure the privacy of property owners and citizens will be protected from drones carrying small packages for delivery.” In both instances, FAA asserted that it lacked authority to address these concerns, stating that the drone operators, not FAA, “select the locations for commercial drone operators to conduct operations” and that FAA’s authority “does not include regulating privacy,” citing its Updated Fact Sheet (2023) on State and Local Regulation of Unmanned Aircraft Systems. Petitioners did not raise these concerns in their comments, and other state and local governments likely support FAA’s position, largely because it generally recognizes the authority of state and local governments to regulate these areas. However, these issues may remain a central concern to local citizens, who are likely to raise them to oppose expansion of drone operations in other contexts (e.g., local land use/zoning proceedings). 

Next Steps

• Second Circuit record and briefing. Absent any motion for interim relief, the next major development should be the filing of the administrative record and a merits briefing schedule. Petitioners’ opening brief will define which theories they actually press, and any relief they seek beyond the petition’s request to set aside the PEA/FONSI/ROD.
• Intervention and amicus activity. Drone operators, industry associations, community groups, or other stakeholders may seek to participate as intervenors or amici.
• FAA implementation will continue unless a court orders otherwise. Operators seeking Part 135 or related authorizations should expect FAA to continue applying the PEA while deciding whether a proposed operation fits within its assumptions or needs additional site-specific review.
• Applicants should build the project record with litigation in mind. Particularly for high-volume or geographically sensitive operations, applicants should document how proposed aircraft, flight volumes, operating hours, noise performance, hub siting, wildlife conditions, battery/fire controls, mitigation, local zoning, and community engagement compare with the assumptions and mitigation measures in the PEA.