AV States, Cities, and the Feds

Cities, states, and the federal government are all moving ahead to provide a governing framework, to thoughtfully consider, and/or to plan for automated vehicles (AVs). Although there is broad bipartisan agreement in Congress, safety and preemption concerns raised in 2019 prevented the passage of national legislation. 

This is not necessarily a negative development because we are witnessing what US Supreme Court Justice Brandeis once called a laboratory of democracy with various state law approaches to AVs. (New State Ice Co. v. Liebmann, 285 U.S. 262, at 311, Brandeis, J., dissenting (1932)). The Brandeis quote exactly describes the value of what states are engaging in today to learn about and plan for AVs.

There must be power in the States and the nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. … To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

(Quoting 285 U.S. 311.)

More than half of US states are looking at AVs. Many aspects of US law that we take for granted began with state law experimentation, including the 2008 healthcare law, the Affordable Care Act, which was modeled on a program in Massachusetts; and workers’ compensation, first adopted in New York State. Cities throughout the country are also actively planning for AVs, some in concert with their state transportation agencies. The federal government, through the US Department of Transportation (USDOT), is also proceeding and consulting with stakeholders.

State Law Approaches - The Petri Dishes in the Laboratory of Democracy

While 42 states have in place some AV-related legal rule – be it executive order, regulation, and/or law – this number is somewhat misleading. A majority of states do not have any rule governing actual AVs driving down public roads in normal traffic. What states have mostly put in place are legal provisions:

·       Establishing an advisory committee or mandating a study of particular AV operational, business, insurance, and/or passenger transportation issues; 

·       Allowing for testing and/or pilots in limited situations and requiring collaboration with specific state agencies and/or cities where testing is requested; and/or

·       Enabling a specific, significant change to motor vehicle regulations – one which has garnered practically zero attention in the media – the permission for platooning on high-speed roads.

Platooning is generally a priority for the freight industry and platooning authorization in state laws would allow trucks with certain technology to follow a lead vehicle – whether with a human driver or an AV – at a much closer distance than is permitted for conventional vehicles.

Testing and pilots of AV ridehailing and microtransit shuttles are mostly happening in states with very little regulation and AV-friendly weather, such as Texas, Florida, Arizona, and Georgia. The exceptions are states with a substantial tech or auto industry presence. These include:

·       California, with Silicon Valley and San Francisco as the nation’s most important tech region;

·       Pennsylvania, specifically the City of Pittsburgh, due to the activities of Carnegie Melon University and the companies using technology that have grown out of CMU activities or from CMU professors or graduates; and

·       Michigan, the state with headquarters of the most prominent US auto companies.

Cities Take the Spotlight

In just the last couple of years, cities large and small have gone from ignoring the prospect of AVs to embracing and planning for them. The best examples are in states where there are good city-state partnerships, such as Massachusetts and Connecticut. Texas is also an interesting case because suburban municipalities are embracing AV and microtransit pilots, while the state has removed any roadblocks to AV pilots, including transporting people on public roads. The situation in Arizona is similar, but in that state testing and pilots have been limited to conventional cars or minivans outfitted with AV technology.

A recent report from the National League of Cities (NLC) provides a quick summary of AV developments from the perspective of cities and states. Autonomous Vehicle Pilots Across America examines the ways that states are creating frameworks for AV operations, pilots, and further study. City strategies that use whatever state frameworks have been established provide an interesting read about the spectrum of approaches and partnerships with states, with the private sector, and with universities.

State and local agency counterparts will participate in the roll out of AVs as they are being tested, piloted, and as they begin regular operations. Additional agency actors in AV-related legal rules and operations include planning departments, departments of public works, and departments of motor vehicles.

Federal Regulatory Players 

The USDOT and its surface transportation modal and safety agencies – FTA, FHWA, and NHTSA – all have a role to play in AV regulation and implementation, but so do some federal, state, and local agencies outside of the USDOT. On the national level, these include the Federal Trade Commission (FTC), the Federal Communications Commission (FCC), the Department of Homeland Security (DHS), the Department of Justice (DOJ), and the Department of Labor (DOL). These agencies work in the spheres of privacy, business regulation, consumer protection, cybersecurity, labor, and law enforcement.

Federal action is expected from NHTSA and the Federal Motor Carrier Safety Administration (FMCSA), which are planning to publish proposals for in 2019 regarding AV safety, testing, and deployment. These two USDOT modal administrations were mentioned in the Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions – Fall 2018, 83 Fed. Reg. 57803, Nov. 16, 2018. NHTSA is seeking to reduce regulatory barriers and coordinate efforts relating to technology and innovative vehicle design. Ibid. at 57913-14. FMCSA, which regulates aspects of some transit systems that operate interstate (as well as traditional private bus service) will “continue to coordinate efforts on the development of autonomous vehicle technologies and review existing regulations to identify changes that might be needed.” Ibid. at 57913.

Otherwise for 2019?

Any more crashes involving auto-assist technology - especially any with serious injury or worse to individuals outside of the auto-assist vehicle - will prompt investigative reporting, videos, and news coverage that will sway federal legislators. Federal legislation is fertile ground and there is a good possibility for a negotiated compromise for legislation that covers AV and auto-assist regulation.

That's it. I could be wrong.