March 2021

The 2021 Law and Mobility Conference opened with a panel, moderated by Emily Frascaroli, that set out to begin answering three questions: What are emerging transportation technologies? What is the legal landscape surrounding these technologies? What are some challenges that these technologies face, in terms of both gaining popular use and promoting transportation equity?

Nira Pandya presented on the legal landscape of connected and automated vehicles (AV). The current legal landscape of AV falls into three buckets: federal law, nonbinding federal agency guidance, and state law. On the federal level, there is no comprehensive federal AV legislation. On the regulatory side, the Department of Transportation has promulgated nonbinding regulatory guidance to encourage collaboration, transparency, and integration of AVs into existing transportation systems, but there are no binding regulations on any aspect of AVs. Meanwhile, at least 29 states and D.C. have enacted AV-related legislation or executive orders, creating a varying and uncertain landscape for AVs throughout the U.S. Moving forward, the Biden administration seems generally committed to the development of innovative transportation technology and has appointed leaders whose backgrounds align well with this goal.

Jennifer A. Dukarski presented on data, a key driver of mobility. Data is already ubiquitous in our transportation technology, from conventional vehicles’ navigation and diagnostic systems to the account and payment systems for scooter shares. Data will only become more frequently and invasively collected as our transportation system becomes more connected and automated. Yet the U.S. lacks comprehensive federal legislation for data privacy, all the while there is a dearth of regulations and legislation at both the state and federal levels that restrict how transportation companies can use our data. States such as California have developed broad, cross-cutting data privacy laws, and leaders in the field speculate that federal data privacy legislation could be introduced as soon as this fall.

Bryant Walker Smith discussed how emerging transportation must focus on both technology and the law being means to serve social needs such as increased transportation safety and equity, rather than ends in themselves. He outlined the safe systems approach, which focuses on both the vehicle and infrastructure aspects of transportation being designed to maximize social goals, such as safety, through design and policy.

A contentious issue with emerging transportation that the panelists highlighted was the reality that the companies creating transportation technology will, for better or worse, be driving the regulation of this technology. In this vein, one of the challenges of promoting transportation equity through policy or otherwise is weighing just how much pressure to put on AV companies to solve social injustices. Are we striving for equity in AV because it is better than striving for equity in more traditional modes of transportation, or are we doing this just because it is more convenient than dismantling the inequities built into our current transportation system? Given that transportation inequity is tied to a variety of broad and overlapping historical policies – housing, insurance, and urban development, to name a few – how much pressure can we really place on an AV or scooter company to resolve these social problems?

Finally, in describing the challenges to widespread adoption of emerging transportation technology, the panelists converged on the importance of transparency and uniformity.  For transportation systems like AV to work, the technology needs to be seamless, which will be challenging in the absence of a comprehensive federal framework. Promoting transparency from AV manufacturers about safety, data, and equity issues will be essential in developing consumer trust. This trust will then serve two purposes: getting more people on board with using these technologies and getting more people to advocate for their elected officials to pass good policies regulating these technologies.

The panel wrapped up with brief discussions of a National Highway Traffic Safety Administration (NHTSA) advanced notice of proposed rulemaking on a “Framework for Automated Driving System Safety” – which has had its comment period extended to April 1 – and of spectrum issues with connected vehicles.

In light of the 2021 Law and Mobility Conference’s focus on equity, the Journal of Law & Mobility Blog will publish a series of blog posts surveying the civil rights issues with connected and autonomous vehicle development in the U.S. This is the second part of the AV & Civil Rights series. Part 1 focuses on Title VI of the Civil Rights Act. Part 3 focuses on Title II of the Civil Rights Act. Part 4 focuses on the Fourth Amendment.

Leaders in the autonomous vehicle (AV) industry have promoted AVs as the gateway to transportation equity by providing people who are unable to drive due to age or disability with the freedoms of a car. Nearly every AV company is already experimenting with accessibility features. Waymo and Cruise are trying out braille and other features to assist blind users. Nissan has virtual reality avatars that may provide comfort and assistance to passengers with disabilities. May Mobility’s shuttle deploys a wheelchair ramp. However, federal law has mandated that transportation be accessible to everyone for over three decades, and this goal is still far from being realized. Can AVs really be different?

A 2017 survey by the Department of Transportation found that an estimated 25.5 million people in the U.S. have disabilities that make traveling outside of the home challenging. Further, more than 3.5 million Americans with travel-limiting disabilities are unable to leave their homes at all. As our population continues to age, these numbers will only increase. This lack of access to transportation has devastating impacts. Disabled people experience depression at a rate four times higher than the U.S. population as a whole, undoubtedly due in part to isolation. From an economic standpoint, mitigating transportation obstacles for disabled people would create employment opportunities for 2 million people with disabilities and save $19 billion annually from missed medical appointments.

Per federal law, transportation is not supposed to be this inaccessible. The Americans with Disabilities Act (ADA) broadly mandates that both government and privately owned public transportation be accessible to people with disabilities. On the ground, inaccessibility has persisted, due in part to massive loopholes in the statute. The ADA does not apply to rail transit systems constructed prior to 1990, meaning that improved accessibility has been largely voluntary, and inadequate, for systems such as the New York subway. The ADA both mandates that buses have accessibility features and requires paratransit services to be available wherever there are fixed-route buses, but where inaccessible bus stops require door-to-door services. However, these services require reservation up to 48 hours in advance, and they are up to ten times more expensive per trip than fixed-route bus fare.

The ADA gets even messier for privately owned auto transportation systems. The statute does not require taxi services to purchase accessible vehicles, which makes hailing an accessible cab nearly impossible in many parts of the U.S. Ride shares have even further complicated this murky scheme. It also remains unclear whether the ADA covers ridesharing platforms at all, although a recent lawsuit against Uber may finally force a court to answer this question.

Regardless of whether the ADA will reach AV fleets, widespread mobility issues for Americans with disabilities in our current transportation system means that the statute will not do nearly enough on its own to promote accessibility for all. Even the experimentation with accessibility features that I detailed earlier will not be enough. AV will not be fully accessible unless it is uniformly accessible, and disability rights advocates are already worried that AV companies are striving for specialization at the expense of similar or identical accessibility features across all fleets.

The best way to ensure uniform accessibility for emerging transportation would probably be through sweeping federal legislation. This seems unlikely to happen any time soon, and in the meantime uniform accessibility will be left to AV companies themselves. AV companies have the opportunity to make AV transportation radically accessible from the start by accounting for mobility, visual, auditory, memory, and intellectual impairments in their design across competing fleets and geographic regions. This is the only way to ensure that the next transportation revolution does not leave our most vulnerable community members behind.

Brave New Road: The Role of Technology in Achieving Safe and Just Transport Systems

Co-sponsored by the University of South Carolina School of Law

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In light of the 2021 Law and Mobility Conference’s focus on equity, the Journal of Law & Mobility Blog will publish a series of blog posts surveying the civil rights issues with connected and autonomous vehicle development in the U.S. This is the first part of the AV & Civil Rights series. Part 2 focuses on the Americans with Disabilities Act. Part 3 focuses on Title II of the Civil Rights Act. Part 4 focuses on the Fourth Amendment.

Road planning has never been value-neutral. From Detroit’s 8 Mile Road to West Baltimore’s “road to nowhere,” infrastructure has been used both intentionally and unintentionally to further marginalize communities of color, and particularly Black communities. As the Biden administration hopes to move forward with sizable infrastructure investments, including potential investment in infrastructure for autonomous vehicles (AV), proposals to build new roads and refurbish existing ones will arise. Both federal and local policymakers must avoid repeating racist automotive infrastructure decisions of the past.

Both before and after the civil rights movement, one of the mechanisms through which segregation and white supremacy were, and continue to be, perpetuated is through urban planning. Federally backed mortgages and other services were unavailable in communities that were evaluated as “insecure” during the early and mid-20th century, meaning that these redlined areas were left blighted as developers looked to development in wealthier, whiter neighborhoods and suburbs. The advent of urban sprawl focused federal transportation infrastructure resources to expressways designed to decrease congestion for suburban commuters to city centers, which often meant that these roads were built right through formerly thriving black neighborhoods, displacing homes and businesses and forcing those who remained to deal with increased pollution and noise. Even public transportation became increasingly geared toward the comfort of white, suburban riders instead of the working class people of color that tend to depend on it. Take the express train, literally designed to skip through entire city neighborhoods and block access for local riders.  

Some environmental and racial justice advocates have turned to civil rights law to attempt to right some of these wrongs. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin in programs receiving federal financial assistance, which constitute the majority of infrastructure projects. The statute allows affected communities to file both federal lawsuits and administrative complaints, which equip federal agencies like the Department of Transportation to initiate fund termination proceedings or refer matters to the Department of Justice for other legal action.  However, in Alexander v. Sandoval, the Supreme Court dealt a devastating blow to Title VI by interpreting the statute to require discriminatory intent, rather than discriminatory impact alone, to prove discrimination. Essentially, the holding in Alexander v. Sandoval has eliminated the private cause of action for discriminatory infrastructure and left enforcement up to federal agencies.

On the administrative side, the Biden administration has provided a glimmer of hope for the utility of Title VI. The Federal Highway Administration recently asked Texas’ transportation department to halt construction on an I-45 expansion project after community members filed a Title VI complaint citing concerns about pollution and displacement. The project would impact Harris County, Texas, which has large Black and Latinx populations. Time will tell whether the pause and investigation will yield the result that the community members sought in this complaint, and whether it will serve as precedent for similar actions.

Overall, while impacted communities may use Title VI to stall projects, the best way to ensure that any future infrastructure that facilitates the AV revolution does not violate civil rights is to ensure equitable access to construction decision-making and emerging transportation itself. AV developers cannot tout equity while failing to acknowledge that infrastructure built for cars has had a devastating impact, which may continue without road planning that moves marginalized voices to the center.

2020-21 Has Revealed Problems in Supply Chains and Distribution

The various crises of the past year have disrupted many industries, and transportation logistics is no exception. The pandemic has demonstrated the fragility of our supply chains, as logistics providers have been overwhelmed and overworked and businesses have been faced with long delays and uneven availability of important products. Further, we have grown increasingly aware of the importance of supply chains to consumers’ everyday lives, perhaps most memorably when we were all desperate to find toilet paper a year ago. More seriously, the integrity of our supply chains is having literally life-or-death consequences for hundreds of thousands of people in the realm of medical supplies. Since the beginning stages of the pandemic, we were confronted with our supply chains’ inability to deliver adequate amounts of testing kits, PPE, and pharmaceuticals. Recently, the government invoked the Defense Production Act (DPA) to put higher priority on the Covid-19 vaccine in the supply chain. Even after the pandemic’s impacts are no longer felt so strongly in our supply chains, extreme weather events will likely continue to disrupt distribution, as just happened in Texas.

The Promise of AVs to Remedy Transportation Logistics’ Woes

While government actions like the DPA may be positive developments in our present moment, the recently revealed defects in our supply chains will require more than temporary band-aids enacted in reaction to crises. Amidst the disorder in our current supply chains, entrepreneurs and industry professionals see an opportunity for emerging technologies to make our supply chains more reliable, efficient, and better able to foresee and cope with future disruptions. Industry commentators especially highlight the potential of autonomous vehicles for their potential to remove the human factor that has proven so vulnerable in the pandemic. In contrast to people, AV systems can run 24/7, are not subject to 14-day quarantines, and will never exacerbate the already worrisome long-standing driver shortage due to illness. Thus, AV systems could provide the transportation logistics industry the efficiency and reliability that consumers so badly need during emergencies like the coronavirus crisis. Experts in government and industry have long  recognized that increasing automation in the trucking industry would have these advantages, as well as the added benefits of cost savings, reduced congestion, increased energy efficiency, and improved road safety.

Obstacles to AV Implementation: Disparate Regulations

While companies like TuSimple, Aurora and Waymo are already making progress on autonomous freight routes in the US and elsewhere, they are charging ahead without much coordinated help on the governmental level. One of the main challenges for these companies are the conflicting standards they face when traveling between states, since no preempting federal legislation has been passed and state regulations remain a disparate patchwork. Analysts have noted the “sheer divergence of law” between state and local governments, and leaders in government and industry have been discussing the need to harmonize the AV regulatory regime for years.

Some key areas of variance in state laws are: whether or not AVs are exempted from follow-too-closely statutes (which effectively prohibit automated platooning), definitions of automation, and whether or not a human operator is required. For instance, during TuSimple’s planned AV route from Phoenix to Houston, the company would have to pass through New Mexico, which lags behind neighboring states in terms of AV-enabling legislation (their state legislature is currently working on a bill that would authorize AV testing and platooning, while Arizona and Texas have authorized driverless testing for years).

This patchwork poses an obvious problem for long-haul trucking across state lines, thus hindering  AV technology’s potential as a solution to the aforementioned supply chain issues.

Removing Roadblocks

If the federal government wants to be proactive in helping the private sector resolve supply chain problems with innovation in the AV space, it should set about harmonizing local regulations. Government leaders have repeatedly stated that they aim to “promote regulatory consistency among State, local, tribal and territorial, and international laws and regulations so that AVs can operate seamlessly nationwide and internationally.” Continuing to dialogue with industry leaders and utilizing the resources of the Department of Transportation and the National Highway Traffic Safety Administration to coordinate between state and local governments will be crucial to fostering innovation with smart regulation. Another avenue is federal preemption, which could be targeted at specific areas of conflicting regulations which stifle innovation in and implementation of AV tech, like follow-too-closely statutes. Of course, new regulations should be designed in concert with industry leaders and with plenty of time for public comment, the same way rulemaking and research have been conducted to this point.

If the federal government remains inactive and allows the conflicting patchwork of state regulations to persist, industry commentators have suggested that AV stakeholders in the private sector have an alternative method to harmonize regulations: legal challenges under the Commerce Clause. Dormant Commerce Clause doctrine holds that because Congress has the power to regulate interstate commerce, states are constitutionally barred from actions that discriminate against or unduly burden foreign commerce, even in the absence of federal regulation. The foundational case of Hunt v. Washington State Apple Advertising Commission provided the relevant test for facially neutral laws that have discriminatory impact: the state law is unconstitutional if it either (a) has a hidden protectionist purpose or (b) the burden on foreign commerce outweighs the local benefits. AV stakeholders may have a workable argument that conflicting regulations between states put an undue burden on interstate commerce that outweighs any local benefits.

These kinds of litigations have occurred in the commercial trucking industry before. Legal professionals have compared potential challenges by AV stakeholders to Consolidated Freightways Corporation’s successful challenge to Iowa’s statutory prohibition on the use of 65-foot double-trailer trucks, even though these trucks were permitted in surrounding states and studies showed that the illegal vehicles were no less safe than the legal ones. The burden on the trucking company’s ability to engage in interstate commerce was large enough and the local safety benefits were small and unsubstantiated enough to overcome the strong presumption of validity imputed to local safety measures.

Applying this legal doctrine to conflicting AV regulations seems like a logical extension. For instance, follow-too-closely statutes in states like Kansas could be held invalid as applied to AV commercial trucks if courts are satisfied that they unduly burden the flow of commerce by preventing platooning (which researchers say should reduce congestion, increase energy efficiency, and provide more efficient business models) and insufficiently serve the local interests of highway safety that they are designed to further (studies show that platooning actually improves road safety). Some legal observers even suggest that states’ omissions to act on AV-enabling legislation should be scrutinized for burdening innovation and commerce with regulatory uncertainty.

Therefore, while the current legislative patchwork poses an obstacle to technological innovation and the promise it holds for commercial freighting, AV leaders have multiple ways in which to pursue a more hospitable regulatory environment. Working together with lawmakers to coordinate across jurisdictions rather than working against them in litigation may be a more efficient way forward, and more enticing to an industry that would rather not provoke legislators’ ire. However, the legal doctrine seems to be on the side of promoting AV innovation here, and is a tool ready to be picked up if necessary. Regulators would be wise to start paying closer attention to the need to harmonize regulations, as the last year has made unmistakably clear that our supply chains need improvement, and technological disruption looks to be a promising solution.

During the holiday season, news outlets reported that Apple is working on adding electric self-driving cars to its repertoire of products and services. Apple is using the codename “Project Titan” for its electric vehicle that is expected to have fully autonomous capabilities. Like a present with a big red bow on it, the secret surrounding Project Titan was itching to be unwrapped. Apple has yet to disclose the news itself; however, sources familiar with the project revealed details of the new vehicle that could be entering the market as early as 2024.

At this time, there are no vehicles available for purchase in the U.S. that are equipped with Automated Driving Systems (ADS). ADS describes level 3-5 motor vehicles with driving automation systems that perform part or all of the dynamic driving task (DDT) on a sustained basis. At levels 3-5 of automation, a person is not considered to be driving the vehicle when the automated driving features are engaged. If Apple releases a fully-autonomous vehicle, it has the potential to be the first available for purchase in U.S.

Sources reported that Apple is setting itself apart from competitors by using an innovative monocell battery design. This type of layout bulks up the individual cells in the battery and frees up space inside the battery pack by eliminating the need for pouches and modules to hold battery materials. There are also talks of Apple using a lithium iron phosphate (LFP) battery, which is less prone to overheating than other types of batteries. In more recent news, it was reported that Apple is actively searching for a supplier for lidar sensors for its vehicle. By acting as the eyes that allow a car’s computer to see its surroundings, lidar sensors play a key role in the autonomous part of the Apple Car. The majority of autonomous vehicles use lidar sensors; however, Apple is specifically seeking lidar sensors that will still be considered cutting-edge years from now.

While most of Project Titan remains secret, patent applications filed by Apple provides additional insight as to what features the car may include. Apple’s patents describe several technological advancements including an “intelligent” window-tinting system that responds to external weather conditions, a new way to send alerts using a system for enhancing situational awareness, and an augmented virtual display using a virtual reality system to help reduce motion sickness in passengers.

Fully autonomous vehicles are getting closer to being road ready, but the self-driving technology and the laws surrounding the use of these vehicles are in need of further development. The U.S. Department of Transportation (U.S. DOT) has decided to pay closer attention to automation and preparing for the future of transportation. The U.S. DOT’s fundamental focus is to create the safest, most efficient and modern transportation system in the world. Recognizing that automated vehicles align with their focus, on January 11, 2021, the U.S. DOT released the Automated Vehicles Comprehensive Plan (“Comprehensive Plan”) to understand and respond to the opportunities and challenges presented by ADS. To achieve the U.S. DOT’s vision for ADS, the Comprehensive Plan outlines three goals: promote collaboration and transparency, modernize the regulatory environment, and prepare the transportation system for the safe integration of automated vehicles.

Creating a regulatory scheme to integrate automated vehicles alongside regular vehicles is no small task. Currently, there are no national standards for automated vehicles. However, states are free to enact their own legislation regarding the use of such vehicles within their borders, and 29 states and D.C. have done so. The Comprehensive Plan states:

“The U.S. Government will modernize or eliminate outdated regulations that unnecessarily impede the development of AVs—or that do not address critical safety, mobility, and accessibility needs—to encourage a consistent regulatory and operational environment. In doing so, it will promote regulatory consistency among State, local, tribal and territorial, and international laws and regulations so that AVs can operate seamlessly nationwide and internationally. “

Automated Vehicles Comprehensive Plan

While the law often lags behind technological innovation, it should not “unnecessarily impede” it, as stated above. The Comprehensive Plan is a step in the right direction for Apple, the several other companies developing automated vehicles, and for the public soon to be driving, or riding, in them.