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Using Drones to Gather Evidence of Environmental Violations

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by Mitchell J. Klein

More than 1,000,000 drones have been registered.  The increasing use of drones by hobbyists means more and more concerned citizens and NGOs have the ability to obtain evidence of environmental violations. But what can be done with that evidence?

While the government is restricted in how it can use drones to investigate environmental violations due to political and policy concerns, constitutional prohibitions and the practical considerations involved with inspection protocols, private citizens have no such constraints.

Further, drone costs keep decreasing while their capabilities keep increasing.  High resolution photographs and air sampling are all now available at a modest cost to anyone concerned about the activities or impacts occurring at various facilities. What will happen when the drone operator provides the evidence to the government?

It is unlikely that a government regulator would use it as a basis for an enforcement action, as establishing the foundation for its admission and dealing with attacks on the legality of how it was obtained probably gives the government some pause to consider.

But it is extremely likely that presenting the evidence will become a justification for a standard governmental investigation, in which all regulatory and evidentiary protocols would be followed. In serious cases, it could likely be the basis for obtaining a warrant.

The evidence may also be used as a basis for a citizen suit claim notice. This would force the government to fully investigate and then diligently prosecute, or allow the claimant to move forward with the citizen suit, where the constitutionality and political considerations involved with obtaining the evidence would not be an issue.

The FAA is struggling with rules to keep up with the technology of drones, but there is currently very little that can be done to prevent them from overflying facilities and gathering evidence of environmental violations without any knowledge, much less permission, from the owners and operators.