January 2021

The first week and a half of the Biden administration has seen a flurry of activity: thirty executive orders and actions were taken in the first three days alone, with new announcements every day this week as well. Three of the earliest orders touched transportation and energy issues: an order promoting COVID-19 safety in domestic and international travel, an order to rejoin the Paris Climate Agreement, and an order that will block a permit for the Keystone XL pipeline and direct agencies to review more than 100 Trump executive actions on the environment.

Biden has nominated for Transportation Secretary Pete Buttigieg, who emphasized infrastructure in his campaign for the Democratic candidacy and touted a $21 million investment in “Smart Streets” to revitalize downtown South Bend as the city’s mayor. Biden has nominated as Secretary of Energy Jennifer Granholm, who, since serving as Michigan’s governor, has maintained a focus on renewable energy development, and, particularly, the electrification of American cars.

Among Biden’s most expensive proposals is his sweeping $1.7 trillion plan to tackle climate change. Biden’s executive orders on climate and the environment will freeze new oil and gas leases on federal lands; conserve at least 30% of federal lands and oceans by 2030; double wind energy production by 2030; and establish an interagency climate task force; all with a goal of achieving net-zero carbon emissions by 2050.

With climate, infrastructure, and clean energy jobs as guiding focuses, here is a preliminary view of the transportation policies that we can expect from the Biden Administration:

Electric Vehicles and Fuel Efficiency

Biden’s “Plan for a Clean Energy Revolution” includes a $400 billion investment in clean energy and innovation. A significant part of this plan is working toward the widespread use of electric vehicles.

Automakers expect a push for a new agreement to raise average fuel economy standards across fleets, which will require them to sell more electric vehicles. Under Trump’s standards, they would have had to show 1.5% fleetwide fuel economy increases from 2022-2025, which had been lowered from the 4.7% standard of the Obama Administration. There are currently around twenty fully electric vehicles for sale in the US, with many more expected to pop up in the next few years, including electric pickup truck models from GM, Ford, and Fiat Chrysler. Ford has pledged $11 billion to introduce a variety of new EVs, while GM has committed $27 billion to electric powertrains, vehicles, and autonomous systems through 2025.

On the manufacturing side, Biden hopes to make the U.S. a leader in electric vehicle production, with a goal of creating 1 million new jobs in the auto sector. On the consumer side, he has floated plans to offer rebates for consumers to replace conventional cars with electric vehicles. He has pledged to add 550,000 charging stations across the US.

Biden also plans to electrify the government fleet. In 2019 there were 645,000 civilian, military, and post office vehicles in the federal government’s fleet. Fulfilling this goal will create jobs in the industry, accomplish net-zero transportation-related carbon emissions for the federal government, and provide long-needed updates for postal workers. In anticipation of this plan, part of GM’s electric and autonomous vehicle investment will be in its defense unit, which relaunched in 2017.

Infrastructure

For decades, infrastructure development and maintenance has been synonymous with road funding. Attempting to break away from this pattern, Biden’s $2 trillion “Build Back Better” plan includes development goals for transit and power; upgrading and weatherizing buildings; constructing sustainable homes; innovating clean energy technology; streamlining agriculture; and expanding internet access.

Nicknamed “Amtrak Joe,” Biden’s infrastructure plan includes “sparking the second great railroad revolution.” He plans to work with Amtrak and private freight companies to electrify their fleets. Biden is also aiming to invest in quality public transportation in the roughly 315 American municipalities with populations of more than 100,000 by 2030.

Biden’s plan to expand broadband internet or wireless broadband via 5G also targets transportation and climate change by supporting a transition to remote work.  

An advisor to Biden recently announced that the Administration believes an infrastructure bill of up to $2 trillion is possible within Biden’s first 100 days. Absent legislation, the administration can still shape approximately $1 billion in Department of Transportation grants to promote this agenda; the Trump administration focused on road projects encouraging car travel with these grants.

Autonomous Vehicles

The Trump administration took a purposefully hands-off approach to regulating autonomous vehicles (AV). The National Highway Transportation Administration (NHTSA) promulgated voluntary guidance, which contained twelve safety elements for testing. Of the 66 companies with permits to test these vehicles in California, only 32 submitted these self-assessment reports, and not all of those were rigorous.

While there is not an explicit Biden plan on autonomous vehicles, Buttigieg’s infrastructure plan during his run included reassembling the Advisory Committee on Automation in Transportation, which Trump secretary Elaine Chao had disbanded, and proposing that NHTSA take on a strong federal role for the regulation and oversight of AV safety. A request for comments on AV safety in the waning days of the Trump Administration could be a jumping-off point for these plans.

Granholm has expressed concerns about the labor implications of AV, which could also shape the Biden Administration’s AV policies.

Micromobility

When campaigning, Biden promised to help cities “invest in infrastructure for pedestrians, cyclists, and riders of e-scooters and other micromobility vehicles.” The Biden Administration may therefore account for micromobility as part of is transportation and infrastructure policies.

One development in Congress in this area is the bipartisan Bicycle Commuter Act of 2021, which was recently introduced into the House. The Act would bring back and strengthen an expired pre-tax benefit program for bike commuters, increasing the benefit and ensuring that cyclists could be eligible for other transit coverage. This could be a starting point on micromobility.

Environmental Justice

The early actions of the Biden Administration demonstrate a focus on environmental justice unparalleled by any previous president. On Wednesday it was reported that Biden will sign an executive order establishing an interagency council on environmental justice, an office of health and climate equity in the Department of Health and Human Services, and an office of environmental justice at the Department of Justice. These orders will double down on the promises of a Clinton executive order to ensure that environmental justice considerations are a part of all federal projects. Biden’s clean energy plan includes a goal to support the health and wellbeing of those who have been impacted by fossil fuels, including advocating for new jobs in renewable energy in oil and gas towns. Biden’s infrastructure plan includes a goal of “disadvantaged communities” receiving 40% of the benefits of government spending on energy efficiency.

Accordingly, any of the Biden Administration’s transportation policies may need to account for disproportionate impacts on marginalized communities in the U.S.

Overall, achieving low carbon emissions, investing in sustainable infrastructure, and promoting environmental justice will be the central concerns of the Biden administration that will drive its transportation policy. While there is little in the way of specific policy on AV and micromobility, we are likely to see increased research and regulation in these and other emerging transportation areas.

By Vanessa Casado Pérez*


When we think of transportation, we hardly ever think of sidewalks, albeit they are transportation corridors as much as roads or highways. Managing sidewalk space is not easy. There are multiple uses competing for this public space, as it is even called “our last commons.” The rights over sidewalks are murky, and their governance is often fragmented and suffering from lack of planning. The public has a right of way over them and walks on them. Hospitality and retail do business on them by installing terraces, announcing their latest sales on a blackboard, or by alluring passersby with wonderful window displays. Homeless people sleep on them.

COVID-19 has exacerbated the conflict between uses. On the one hand, our sidewalks are too narrow to social distance while walking on them even in the absence of street furniture or businesses. On the other, restaurants and bars have taken over the sidewalk as a lifeblood of their business. The latter makes the competition between users even more acute as pedestrians see their space reduced, something particularly challenging for those with disabilities. Where possible, local authorities have transformed parking spots as space for terraces, taking parklets to a whole new level, to expand sidewalks. Making parking more difficult may increase congestion due to people circling around trying to find a spot in the short term, but it may discourage driving in the long term. Expanding the sidewalk by reducing space for cars is an interesting move as normally what we see is shifting road problems to the sidewalk without carefully considering the impacts on the latter.  

Two such cases of shifting road congestion to the sidewalk are micromoblity devices and delivery robots. Both solve the last mile problem. Our roads are often congested. Some commuters waste more than a hundred hours a year in traffic. Vehicles emit greenhouse gases and local pollutants, which contribute to climate change and harm our health. There is no single recipe to mitigate our dependency on cars and reduce emissions. But often, an ingredient is public transportation. Public transportation can be inconvenient if it does not take you door to door as your private vehicle will. Finding an emissions-free way to fill the last mile gap between the public transit stop and your place of work or home is paramount. A successful way to do so are shared bikes or scooters systems. Beyond bikes docked on parking spots, there have been scooters or bikes scattered on the sidewalk in cities across the United States. These micromobility devices have taken a hit during the pandemic as there were fewer commuters and shared transportation was perceived as a contagion risk. However, the consulting firm McKinsey predicts that scooter and shared bike companies may recover as those micromobility devices are less risky than public transportation, can adapt to social distancing and hygiene requirements in the medium term, and in the long run cities are likely to discourage the use of private vehicles.[1]

Another new user of our sidewalks are delivery robots. Our demand for home delivery of goods has skyrocketed in recent years too, but, in contrast to micromobility devices, it has accelerated during recent lockdowns. The problem for delivery companies is the last mile, which is particularly costly. The last mile is also socially costly as vehicles parking and stopping add to congestion and pollution. While there have been advances in self-driving delivery vehicles, recently delivery robots have been deployed in university campuses or some neighborhoods to solve this last mile problem. A van arrives to a neighborhood, and the Serves (Postmates), Scouts (Amazon), or Relays (Savioke) decamp to deliver our food or our latest online impulse purchase. There are concerns related to privacy and job loss but also related to the use of sidewalks. Sidewalks are shared spaces. People with disabilities have had problematic encounters with those robots. Others have played pranks on them. But they, jointly with scooters, are a new private use of a shared resource: sidewalks. Reducing pollution is a step forward, but moving congestion from the road to the sidewalk benefiting both private companies and drivers is just another example of the disregard for pedestrians.[2]

Our sidewalks are home to pedestrians window-shopping, neighbors walking their dogs, blackboards with the latest addition to a restaurant’s menu, homeless individuals, terraces, and a long etcetera. Scooters are an additional obstacle to fluid mobility. While scooters are not allowed to be ridden on the sidewalk, they are left on it, often scattered, making it hard for those using the public right of way to walk on the, often narrow, sidewalk. Delivery robots, on the other hand, are circulating, and perhaps we can consider them as using the public right of way. But still, they also help illustrate that the space in our last commons, sidewalks, is scarce, both physically -because they are narrow- and as a result of regulation -because ordinances allow for multiple private uses of it. COVID-19 lockdowns have made it even scarcer as people made their sidewalks their gyms or social outlets and restaurants have transformed them into dining rooms. But even before cities have regulated what uses are acceptable on a sidewalk—for example, some cities ban food vendors—, or have discouraged certain uses—such as sleeping on benches by designing benches with individual seats that impede lying down.

Like with other gig economy innovations, scooters or robots have asked forgiveness instead of permission, but cities have moved to regulate them. For scooters, some cities did sign agreements that were quite lucrative. For delivery robots, state and local authorities are wrestling for the authority to regulate them. Some cities want to ban them, while state authorities seem more accommodating. Often, monetary compensation for the city is the solution. Fees do not solve the problem that space occupied by scooters or delivery robots is not occupied by the public; that while we accept these devices, we do not allow homeless people to station themselves on the street even if they have nowhere to go. Allowing scooters and delivery robots on our sidewalks is the nth illustration monetization and privatization of the sidewalk, a public space. In the cases of micromobility and delivery devices, privatization also benefits the public at large by reducing emissions because these devices reduce the need for automobiles. The conflict between uses remains though. While here is no straightforward solution to the incompatibility of uses, widening our sidewalks would mitigate scarcity and mitigate the conflicts. Widening the sidewalk may imply reclaiming space now granted to cars, further discouraging the use of private vehicles and, thus, further reducing emissions. Widening sidewalks may ensure that the public’s right of way has a clear path without so many obstacles, but it will not make all uses and users welcome. The decision of whether a city accepts homeless people or delivery robots, which will also reduce the number of delivery jobs, is a political one.


[1] Cities have more incentives than ever to want to reduce air pollution. Beyond the problems caused by smog, higher levels of air pollution have bene linked to worse coronavirus outcomes.

Maria A. Zoran, Roxana S. Savastru, Dan M. Savastru, & Marina N. Tautan, Assessing the Relationship Between Surface Levels of PM2.5 and PM10 Particulate Matter Impact on COVID-19 in Milan,  Italy, 738 Sci. Total Env’t 139825 (2020); Leonardo Setti, Fabrizio Passarini, Gianluigi De Gennaro, , Pierluigi Barbieri, , Maria Grazia Perrone, Andrea Piazzalunga, Massimo Borelli, Jolanda Palmisani, Alessia Di Gilio, Prisco Piscitelli, & Alessandro Miani, The Potential Role of Particulate Matter in the Spreading of COVID-19 in Northern Italy: First Evidence-Based Research Hypotheses, Health Scis. Preprint (Apr. 17, 2020),https://www.medrxiv.org/content/10.1101/2020.04.11.20061713v1.full.pdf.

[2] Vanessa Casado Perez, Reclaiming the Sidewalk, Iowa L. Rev. (forthcoming 2021) (on file with author), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3747436.

For an account of how our laws have benefitted cars, see Gregory H. Shill, Should Law Subsidize Driving?, 95 N.Y.U. L. Rev. 498, 551 (2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3345366.


* Vanessa Casado Pérez is an Associate Professor at Texas A&M School of Law and a Research Associate Professor at Texas A&M Department of Agricultural  Economics. Her scholarship focuses on public property and natural resources law. She is affiliated with the Bill Lane Center for the American West at Stanford University.

In several publications, she explores the role of property rights in the management of scarce natural resources and urban public property spaces. She has published in, among others, Southern California Law Review, Iowa Law Review, Florida State Law Review,  the NYU Environmental Law Journal, or the California Journal of Public Policy. 

Prior to joining Texas A&M, Professor Casado Perez was Teaching Fellow of the LL.M. Program in Environmental Law & Policy and Lecturer in Law at Stanford Law School. She holds an LLB, a BA in Economics, and an LLM from Universitat Pompeu Fabra in Barcelona, where she is from. She also holds an LLM from the University of Chicago Law School and a JSD from NYU School of Law.