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.
