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.
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.
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.
 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.
* 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.
This article aims to discuss the relationship between social innovation and public services on active mobility. Two active mobility initiatives are considered in the city of São Paulo, and analyzed based on 11 variables that characterize social innovation. Through the mapping of recent Brazilian regulatory frameworks for active mobility and a low-carbon economy, we can propose the following relationship: the more local (municipal) the public policy, the greater its social influence and participation. However, despite the advances indicated by both experiences of active mobility analyzed (highlighting the role of organized civil society), and by the progress in the regulatory framework, until now innovative practices in the local context have been restricted to the treatment of pedestrian spaces. Therefore, there exists a great potential for the continued introduction of innovations in the improvement and scale of public services for pedestrian mobility, following the paradigm of sustainable urban mobility, and based on social participation.
Throughout the world’s megacities, despite discussions and attestations about urban mobility’s impacts on the environment and health, dependence on fossil fuels continues to grow; this represents a substantial risk for the future of urban transport, as well as in terms of energy security. In the case of megacities in developing countries, the central issue to be addressed is sustainable urban expansion, which requires measures to manage metropolitan development.11.
See Pengjun Zhao, Sustainable Urban Expansion and Transportation in a Growing Megacity: Consequences of Urban Sprawl for Mobility on the Urban Fringe of Beijing, 34 Habitat Int’l 236 (2010). ×
One important step in this direction is the promotion of sustainable transport. Rapid and exponential population growth, coupled with the lack of urban planning, has had negative consequences, particularly in urban mobility. In the context of megacities, it is becoming ever more necessary to possess a transport system developed with user accessibility and connecting active mobility to collective public transport.
This article proposes the incorporation of a broader innovation approach for exploring the potential of innovation in services that address sustainable urban mobility issues, including strategies such as social inclusion, and social innovation itself. This topic is a major driver of innovation and confirms that the impacts, far beyond the traditional concept of competitiveness, also include environmental and social problems.22.
See, e.g., Metka Stare, Seizing the Opportunities of Service Innovation: Policy Brief No. 7, in Inclusive Innovation and Service Innovation, 55 (Werner Wobbe, ed., Luxembourg: Publications Office of the European Union, 2013); Silvia S. Cruz, Sonia Paulino & Delhi Paiva, Verification of Outcomes from Carbon Market Under the Clean Development Mechanism (CDM) Projects in Landfills, 142 J. of Cleaner Production 145 (2017). ×
It is a complex, multiform, systemic and often conflicting issue,33.
See Faridah Djellal & Faïz Gallouj, How Public–Private Innovation Networks in Services (ServPPINs) Differ from Other Innovation Networks: What Lessons for Theory?, in Public–Private Innovation Networks in Services 21-58 (Faïz Gallouj, Luis Rubalcaba and Paul Windrum eds., 2013). ×
which requires different actors interacting at different levels of governance to meet the needs of society.44.
See Anita Kon, A Inovação nos Serviços como Instrumento para a Inovação Social: uma Visão Integrativa, 38 Braz. J. Pol. Econ. 584 (2018). ×
Authors have shown that the challenges are even greater within contexts of developing and emerging economies, in a situation substantially marked by a bias towards technological innovation.55.
Stare, supra note 2; see Silvia Cruz, Faiz Gallouj & Sonia Paulino, Innovation in Brazilian Landfills: a ServPPIN Perspective, 2014 Econ. and Pol’y of Energy and Env’t 79 (2015).
In emerging economies, public services demand innovation not only in terms of efficiency gains, but also in terms of transparency and responsiveness to their users’ needs.66.
See Cruz, supra note 2; see e.g. Piere Mohnen & Metka Stare, The Notion of Inclusive Innovation: Policy Brief No. 15, in Inclusive Innovation and Service Innovation, 11 (Werner Wobbe, ed., Luxembourg: Publications Office of the European Union, 2013); Silvia Cruz & Sonia Paulino, Analysis of Access to Clean Development Mechanism Landfill Projects Through a Multi-Agent Model, 4 Int’l J. of Envtl. Sci. and Dev. 268 (2013). ×
Considering the product (service) as a social construct that involves the views of different actors,77.
Jean Gadrey, The Characterization of Goods and Services: An Alternative Approach, Rev. of Income and Wealth, Ser. 46 No. 3, Sept. 2000, at 369, 369-87. ×
and based on the definition of innovation in services understood as a multi-agent activity88.
Pierre Labarthe, Faïz Gallouj & Faridah Djellal, Effects of Institutions on the Integration of End-Users’ Knowledge in ServPPINs: Lessons from two case studies in agro-environmental knowledge-intensive services, in Public–Private Innovation Networks in Services 303, 303-325 (Faïz Gallouj, Luis Rubalcaba & Paul Windrum eds., Edward Elgar Publ’g 2013). ×
stakeholder participation becomes essential.99.
David Banister, The Sustainable Mobility Paradigm, 15 Transport Pol’y, 73 (2008). ×
In this manner, it is emphasized the collective preferences of citizenship, with a broader view of the citizen as not only a recipient of public services, but also acting in the production, control and planning of these activities. The authors emphasize that an active dialogue is necessary to negotiate and mediate services according to the different preferences of citizens.
As different types of actors are involved in the innovation process, provision of services in a multi-agent configuration allows the development of complementarities and synergies among the different agents. Each possesses their own specific objectives and competences.1010.
See Paul Windrum & Manuel García-Goñi, A Neo-Schumpeterian Model of Health Services Innovation, 37 Res. Pol’y 649, 649-72 (2008);Paul Windrum et al., The Co-Creation of Multi-Agent Social Innovations, 19 Eur. J. of Innovation Mgmt, 150, 150-66 (2016); Benoît Desmarchelier, Faridah Djellal & Faïz Gallouj, Services in Innovation Networks and Innovation Networks in Services: From traditional innovation networks (TINs) to public service innovation networks (PSINs) (2018). ×
One of the factors that promote interest in analyzing innovation in public services is the recognition of the important role played by public sector organizations in the innovation process. Public organizations, therefore, are no longer restricted to the role of a mere supporter of the innovation process. The public sector is also a system of services in which innovations may improve the performance of these activities, and ultimately, may affect citizen’s quality of life. Simultaneously, a number of other reasons distinguish the public sector, since it influences the daily lives of citizens in many ways.
The multi-faceted and heterogeneous nature of the public sector is in part a result of the multiple interfaces which characterize public organizations: 1) an interface with the private sector; 2) an interface between the public sector and citizens; and 3) internal interfaces within the public sector (between government levels and between different areas of activity).1111.
Markus M. Bugge et al., The public Sector in Innovation Systems, Project – Measuring Public Innovation in the Nordic Countries: Toward a common statistical approach (2010). ×
We emphasize that although there is a range of ways to produce a public service, the public sector, as responsible for the provision of said service, must ensure that this production occurs in an appropriate manner; the State should assume the regulatory, inspection, incentive and planning role.
In the field of service studies, there are advances in understanding the specificities of public services and the socioeconomic contexts in which they exist. The literature on innovation in public services shows the most evident inclusion of non-technological forms of innovation.1212.
Windrum et al., supra note 12; Desmarchelier et al., supra note 13. ×
Service innovation often dialogues with social innovation, which has been used as a denominator for the different types of collective actions and social transformations that would lead us from a “top down” economy and society to a more participatory and “bottom up” society.1313.
See Gordon Shockley, The International Handbook on Social Innovation: Collective Action, Social Learning and Transdisciplinary Research, 55 J. Reg’l Sci. 152, 152-53 (2015) (reviewing The International Handbook on Social Innovation: Collective Action, Social Learning and Transdisciplinary Research (Frank Moulaert et al. eds., 2013)). ×
A brief definition of social innovation points to innovations defined by their (social) goals to improve the wellbeing of individuals or communities. The occurrence of social innovation requires the participation of third sector organizations, groups or social movements ensuring that society is the beneficiary by appropriating the results of innovation. Increased involvement of the third sector, “and nonprofit organizations in general – is also recognized as a ‘social’ innovation per se.”1414.
Flavia Martinelli, Social Innovation or Social Exclusion? Innovating Social Services in the Context of a Retrenching Welfare State, in Challenge Social Innovation 169, 173 (Hans-Werner Franz, Josef Hochgerner, & Jürgen Howald eds., 2012). ×
Social innovation differs from traditional innovation not only in its nature, but also in its modes of production and in its stakeholders. Another fundamental characteristic of social innovation is its local, or popular, nature, the essential participation of users in its emergence and implementation, and its relation with sustainability (Figure 1).1515.
See Faridah Djellal, Faïz Gallouj & Ian Miles, Two Decades of Research on Innovation in Services: Which Place for Public Services?, Structural Change and Econ. Dynamics, Dec. 2013, at 99, 102; see Kon, supra note 4, at 603. ×
Regarding urban mobility, we identify a set of services and modes of transport of both people and cargo, as well as the interactions between these displacements and the urban environment. In other words, the term ‘urban mobility’ has overlapped the term ‘transport’, as the broadest definition, encompassing, in addition to transport systems, the access and provision of goods and services in the city.1616.
Alexandre de Ávila Gomide & Ernesto Pereira Galindo, A Mobilidade Urbana: Uma Agenda Inconclusa ou o Retorno Daquilo Que Não Foi, 27 Estudos Avançados, no. 79, 2013, at 27, 33; Adriana Silva Barbosa, Mobilidade Urbana Para Pessoas Com Deficiência No Brasil: Um Estudo Em Blogs, 8 Revista Brasileira de Gestão Urbana 142, 143 (2016). ×
We can define active transport as any form of human transport, such as walking, cycling, wheelchairs, use of crutches; in short, all the movements made autonomously by citizens, even with the use of auxiliary devices.1717.
See Ministério das Cidades, Planmob: Caderno De Referência Para Elaboração De Plano De Mobilidade Urbana 88 (2017), https://iema-site-staging.s3.amazonaws.com/planmob.pdf. ×
Therefore, it plays an important role in the urban context to promote social inclusion and equitable urban development; i.e. it is an important part of sustainable urban mobility.
Despite the importance of walking and cycling in Brazil and other developing countries, infrastructure and policies related to non-motorized transport have suffered neglect in the formulation of public policies. Decision makers still consider active mobility as a sign of delay and inconsistent with their “goals and aspirations for economic growth and competitiveness.”1818.
Dorina Pojani & Dominic Stead, Policy Design for Sustainable Urban Transport in the Global South, 1 Policy Design and Practice 90, 94 (2018). ×
Services based on the integration of active mobility and public transport depend on certain conditions involving the travel environment for pedestrians and cyclists, which can be better understood from (a) a public service innovation approach in a multi-agent configuration; and (b) by the concept of social innovation, since the cases studied in this article suggest innovations defined by social objectives to improve the community’s wellbeing, based on the improvement of public services for active mobility, and occur with the participation of third sector organizations.
The recent regulatory framework prioritizes active mobility in the city of São Paulo, in for example, Decree no. 56,834/2015, Law no. 16,547/2016, Law no. 16,673/2017, Decree no. 57,889/2017, Law no. 16,885/2018, and Decree no. 58,845/2019. In order to achieve this, civil society has been playing a relevant role, exercising political influence and activism. In a formal instance of participation, within the Municipal Council of Transport and Traffic, the respective thematic chambers of bicycle and pedestrian mobility it helped create in February and December 2015 stand as an example of this. Thematic chambers are presented in Decree nº 54.058 / 2013, Art.10: “Thematic or regional commissions may be constituted aiming to improve the work of the Municipal Council of Transport and Traffic, composed with the attributions defined by each chamber Internal Regulation”. In general, the aim of this space is to promote social participation through dialogue between citizens and representatives of the municipal government. The meetings between chamber members and city hall technicians occur monthly, bimonthly with the municipal secretary of Transport, and every six months with the city mayor. There are no specific regulations for the composition of members, agendas, as well as formats of meetings. Each thematic chamber, based on the decision of its members, jointly decides its operation and topics to be addressed.
However, when analyzing the legal framework, we note that there is a chasm between laws and practices; in theory, the priority to pedestrian mobility is always considered (in the laws of active mobility and in the low carbon economy as well). However, the practical results are negligible of qualifying the environment and infrastructure for pedestrian commuting and connectivity with collective public transport.
Given the above, this article aims to discuss the relationship between social innovation and active mobility public services, based on two cases – Reduced Speed Zones and Complete Streets – in the city of São Paulo. These 11 analysis variables are used: associations/collectives /activist groups; actions to highlight social needs; third sector interaction with the public sector; expertise in identifying the intervention area; establishment of an evidence base on the effectiveness of techniques used in the service; an evidence base created by the public sector; support from public policies for the diffusion of innovation; government bodies that support the provision of services; solutions to respond to social needs; improvement of environmental quality; and social impact.
We propose that the experiences studied may exist as opportunities for social innovation connected to the introduction of public services aimed at pedestrian mobility. After the introduction, Section 2 shows the methodology. Section 3 presents the results highlighting the regulatory framework on active mobility and low carbon economy, at the federal, state and municipal levels; and the opportunities for social innovation in relation to the introduction of public services for active mobility. In Section 4, the conclusion.
Initially, we mapped the federal, state and municipal regulatory framework on active mobility and the low carbon economy (focusing on aspects related to transport). For the empirical context, the research methodology uses the geographic-temporal approach focused on São Paulo and the period considered for data collection is 2015 until September 2019. In 2015, the São Paulo Urban Mobility Plan was instituted, which established the characteristics of the pedestrian circulation network, necessary infrastructure, specific targets for pedestrians and for accessibility, and integration with other modes of transport.
The concentration of initiatives studied in the São Paulo is justified, as it is one of Brazil’s megacities, with great challenges for urban mobility; and as occurs in other aspects, São Paulo was also a pioneer in the use of tactical urbanism in the country, and later, the technique was disseminated to some other cities. Tactical urbanism uses low-cost temporary materials in order to test places for different uses; subsequently, these locations may go on to receive permanent intervention. These short-term and low cost interventions aim to promote grassroots restructuring, in a participatory approach, towards the re-appropriation of urban spaces by their own users, in line also with the broad view of social innovation, which extends potential forms of participation to specific actors. Finally, it is one of the cities selected for the Bloomberg Philanthropies Global Road Safety Initiative (Bloomberg Initiative), which aims to reduce injuries and fatalities resulting from collisions throughout the world. The development of Reduced Speed Zones and Complete Streets are part of the program. The Bloomberg program was renewed for the 2020-2025 period and São Paulo continues to be one of the cities contemplated by the initiative.
The selection of active mobility cases takes into account the following criteria: implemented in the city of São Paulo; in areas of high pedestrian circulation; connection with collective public transport; and the application of tactical urbanism techniques (Figure 2).
From the criteria adopted, we selected the following cases: a Reduced Speed Zone (São Miguel Paulista and Santana); and a Complete Street (Joel Carlos Borges) (Table 1).
The secondary data sources used are the CET database of Reduced Speed Zones and the Life Protection program; diagnoses and reports of Impact Evaluation Studies and reports.1919.
See Cidade Ativa, Diagnóstico Áreas 40: São Miguel Paulista, https://cidadeativa.org/iniciativa/leituras-urbanas/area-40-sao-miguel-paulista/ (last visited Oct. 4, 2020); Fundação Getúlio Vargas [FGV], Relatório de desenho de pesquisa para avaliação de impacto do Projeto de Requalificação Urbana e Segurança Viária de São Miguel Paulista na poluição do ar e na saúde (2017); Fundação Getúlio Vargas [FGV], Relatório de linha de base da avaliação de impacto do projeto de requalificação urbana e segurança viária de São Miguel Paulista (2017); Rafaela Marques, Desenho Urbano e Segurança Viária: requalificação de áreas de baixa velocidade em São Miguel Paulista, Instituto de Políticas de Transporte & Desenvolvimento [ITDP] (Feb. 15, 2016), https://itdpbrasil.org/area40saomiguelpaulista; ITDP et al., Intervenção urbana temporária (Re)pensando a rua em Santana Relatório de Atividade (2018), https://itdpbrasil.org/wp-content/uploads/2020/04/200401-ITDP-relatorio-santana.pdf; Laboratório de Mobilidade Sustentável [LABMOB] et al., Estudo de Impacto e Avaliação de Rua Completa (2018), https://www.labmob.org/avaliacao-de-rua-completa. ×
Essentially, the reports on interventions provide information about workshops, engagement with stakeholders, post-intervention impact evaluations, intervention design, and materials used (in-event, temporary and permanent actions). For the primary data collection, eight agents completed structured forms: representatives of civil society, startups, universities participating in impact evaluation diagnostics, and the public sector (Secretariat of Urban Mobility).
Finally, we used 11 variables to characterize the social innovation, in the analysis of social innovation opportunities linked to public services for pedestrian mobility (Figure 3):
For each variable, it is our intention to identify the following:
The protagonism of civil society, related to the cases studied.
Methods, tactics and tools used to gather information from the communities involved.
The means of interaction with the public sector.
Forms of participation in the elaboration of processes and procedures.
Participatory methodologies for disclosing and validating techniques.
Methodologies created by the public sector for the disclosure and validation of said techniques.
Public policies that are related to the cases’ studied contexts and that, in part, have originated because of the context.
Public bodies related to the projects, highlighting their interdisciplinarity and intersectionality.
Local solutions, aimed at the population’s wellbeing, resulting from the joint process of public sector interaction and civil society participation.
Aspects related to air and noise pollution.
Developments achieved, measured by research methods and the impact evaluation.
The section is organized as (3.1) the insertion of active mobility into the regulatory framework, highlighting and analyzing the recent legislation evolution. Then (3.2) we present the cases, identifying opportunities for social innovation in services for active mobility, linking a timeline for the initiatives with the regulatory framework.
3.1 Active mobility in the regulatory framework
The regulatory framework for climate change is related to urban mobility, since, according to the emissions inventory of the State of São Paulo,2020.
Companhia Ambiental do Estado de São Paulo [CESTESB], Emissões no Setor de Energia: Subsetor de Transportes (2014), https://cetesb.sp.gov.br/ inventario-gee-sp/wp-content/uploads/sites/34/2014/09/emissoes-no-setor-de-energia_Transportes.pdf. ×
the transport sub sector was responsible for 48% of emissions in the energy sector and 27% of the State’s total emissions in 2005. The road transport is responsible for almost 90% of emissions.2121.
Therefore, analyzing how active mobility is addressed in climate change policies is essential to achieve both environmental and emission reduction, and social, economic, land use and occupation goals. Mapping the recent regulatory framework then, which addresses active and low-carbon mobility, at the federal, state and municipal levels, the scenario appears in Figure 4.
At the federal level, with the National Policy on Climate Change (NPCC), in the Brazilian Nationally Determined Contribution (NDC), the country is committed to promoting efficiency measures, and improvements in transport infrastructure and collective public transport in urban areas. In the “Initial Proposal for Implementing the Nationally Determined Contribution of Brazil (NDC)”2222.
Fórum Brasileiro de Mudança do Clima [FBMC], Proposta Inicial de Implementação da Contribuição Nacionalmente Determinada do Brasil 18-22 (2018), https://www.ccacoalition.org/en/resources/brazils-ndc-initial-implementation-proposal. ×
the contributions and measures proposed for active mobility to exercise its potential to mitigate CO2 emissions are timid and insufficient, lacking concrete guidelines and actions.
The National Urban Mobility Policy (NPUM) (Law no. 12,187/12),2323.
Lei No. 12.587, de 3 de Janeiro de 2012, Diário Oficial da União [D.O.U.] de 1.4.2012. ×
established in 2012, states that all municipalities of more than 20 thousand inhabitants must present a specific urban mobility plan (Decree 56.834/16),2424.
Decreto No. 56.834 de 24 de Fevereiro de 2016, Diário Oficial da Cidade de São Paulo de 25.2.2016. ×
and must prioritize non-motorized means of transport and collective public transport. This has several beneficial consequences for the city, as it implies democratization of the use of public space on the roads, gradually reduces the use of the cars, and causes a reduction in the emission of pollutants and an improvement in quality of life, minimizing the respiratory problems caused by pollution and sedentary lifestyles.
At the State level, in 2009, the State Policy on Climate Change (SPCC) was established (Law no. 13,798/2009),2525.
Lei No. 13.798, de 9 de Novembro de 2009, Diário Oficial do Estado de São Paulo [D.O.E.S.P.] de 9.11.2009.
which aims to reduce greenhouse gas (GHG) emissions by 20% in 2020, in relation to total emissions in the state of São Paulo in 2005. This implies consistent strategies, especially in transport, a sector in which the most significant reductions are possible; in this manner public transport and non-motorized transport are considered essential to achieve greater efficiency and sustainability in urban mobility.2626.
See Carlos Henrique Ribeiro de Carvalho, Instituto de Pesquisa Econômica Aplicada, Mobilidade Urbana Sustentável: Conceitos, Tendências e Reflexões (2016); see also Antônio Nélson Rodrigues da Silva, Marcela da Silva Costa & Márcia Helena Macedo, Multiple views of sustainable urban mobility: The case of Brazil, 15 Transp. Pol’y 350 (2008). ×
The Metropolitan Mobility State Policy – MMSP (Law no. 16.956/2019)2727.
Lei No. 16.956, de 21 de Março de 2019, Diário Oficial do Estado de São Paulo [D.O.E.S.P.] de 21.3.2019. ×
is also identified, in the same line, highlighting the priority of collective public transport modes over individual, the priority of non-polluting public transport modes over pollutants, and incentives for scientific-technological development in order to mitigate the environmental and socioeconomic costs of people and cargo displacements. Thus, it encourages entrepreneurship and startups that produce innovative urban mobility solutions for citizens.
At the municipal level, the São Paulo Climate Change Law (Law 14.933 / 2009)2828.
Lei No. 14.933, de 5 de Junho de 2009, Diário Oficial do Município de São Paulo [D.O.M.S.P.] de 5.6.2009. ×
also outlines strategies to reduce emissions through the transport sector; however, these measures are restricted to the progressive reduction of fossil fuels within the bus fleet. The municipal law follows some guidelines, such as that for land use, as an infrastructure for transport supports and encourages active mobility, but with a focus on mobility by bicycle, without addressing pedestrian mobility.
Since 2015, organizations have begun to emerge that work on pedestrian mobility in the city of São Paulo, also helping to promote experiences/interventions focused on pedestrians.2929.
como anda o movimento pela mobilidade a pé no brasil: agentes, oportunidades e gargalos (Rafaella Basile et al. eds., 2017). ×
In 2015, the Urban Mobility Plan (UMP) was instituted through Decree No. 56.834 / 2015, in response to the NPUM request, bringing specific guidelines for pedestrian mobility, in response to the demand from civil society, the Active Mobility Integration policy and the Pedestrian Circulation System. These suggest characteristics of the pedestrian displacement network, the infrastructure required and the specific goals for pedestrians and accessibility.
The Municipal Council of Transport and Traffic of São Paulo in 2015 created thematic chambers of cycling and pedestrian mobility, in a bottom-up process, which emerged out of civil society. In June 2017, also featuring the active participation of civil society, the Pedestrian Statute of the city of São Paulo was approved with the main objectives of consolidating the concept of a pedestrian mobility network and of determining the sources of funds for the infrastructure required for walking, such as sidewalks, boardwalks and crossings.3030.
Lei No. 16.673, de 13 de Junho de 2017, Diário Oficial do Município de São Paulo [D.O.M.S.P.] de 13.6.2017. ×
However, despite the sanction, to date (May 2020) the Statute has not been regulated by City Hall, preventing in practice its application within the law.
In 2019, Decree no. 58.611/2019 was published, which consolidates criteria for the standardization of sidewalks in São Paulo. Further, in the same year, the Municipality of São Paulo, through Municipal Decree no. 58.717/2019,3131.
Decreto No. 58.717, de 17 de Abril de 2019, Diário Oficial do Município de São Paulo [D.O.M.S.P.] de 17.5.2019. ×
with support from the World Bank, launched the Road Safety Plan of São Paulo Municipality, developed and elaborated with civil society organizations’ involvement: in particular, the Bloomberg Initiative for Global Traffic Safety and WRI Brazil.
When analyzing the regulatory framework, at different government levels, it is clear that the priority for active mobility is guaranteed; however, there are few tools to provide practical results in the qualification of active mobility networks connected to collective public transport. Finally, regarding the role of civil society, it is possible to establish a relationship that the more local (municipal) the public policy, the greater its social influence and participation, opening up opportunities for social innovation of active mobility, as presented in the following topic.
3.2. Social innovation opportunities in active mobility services
In order to improve the conditions for integration with public transport, the initiatives studied have sought to increase the safety and comfort of pedestrians, by reducing speed, and redesigning and expanding sidewalks. The initiatives applied tactical urbanism techniques (temporary interventions) to test the sites for different uses and later, to receive permanent intervention. Table 2 summarizes the interventions studied, based on tactical urbanism and social innovation variables relationed to the introduction of public services for pedestrian mobility.
Figure 5 shows the integration of the active mobility initiatives studied in the regulatory framework mapped for urban mobility and climate change in Figure 4. The regulatory framework’s evolution is relatively recent; we have identified developments from civil society performances, establishing opportunities for social innovation relationed to innovation in pedestrian mobility public services (service characteristics).
The innovation, in the local context, in services provided by City Hall, occurred in the treatment of pedestrian spaces: sidewalks; crossings; accessibility; horizontal and vertical signaling in public spaces; traffic light systems suitable for non-motorized transport; and traffic moderation. In order to improve the conditions for integration with collective public transport, the initiatives studied sought to increase safety and comfort for pedestrians by reducing speed, and reforming and expanding sidewalks. Explaining the link between social innovation and innovation in public services, the protagonism of civil society is highlighted by conducting audits and impact evaluations; supervising public bodies; working together to develop the temporary intervention project; analyzing, along with municipal bodies, those sites that could receive temporary intervention; and holding workshops with the community.
Advances in the regulatory framework explicitly point to a contribution toward sustainable development; equity in citizens’ access to collective public transport; equity in the use of public spaces for circulation, roads and public areas; priority of non-motorized modes of transport over motorized and of collective public transport services over individual motorized transport; mitigation of environmental, social and economic costs of displacement of people and cargo in the city; encouragement of scientific and technological development; and the use of renewable and less polluting energy, among others.
By analyzing the recent Brazilian regulatory framework for active mobility and low-carbon economy, it is possible to establish the relationship that the more local (municipal) the public policy, the greater its social influence and participation. These have concrete examples, such as the municipal Urban Mobility Plan, the Pedestrian Statute, creation of the walking mobility thematic chamber at the municipal council, as well as the active mobility initiatives studied, developed through cooperation agreements with City Hall.
However, despite the advances indicated by both experiences of active mobility analyzed, highlighting the role of civil society organizations, and by the progress in the regulatory framework, until the present day innovative practices in the local context have been restricted to treatment of infrastructure for pedestrians. Therefore, there are great potentials for the continued introduction of innovations for the improvement and scale gain of public services for pedestrian mobility, in line with the paradigm of sustainable urban mobility and based on social participation.
Through public services, the social innovations in the Reduced Speed Zones and Complete Streets manifest as a requalification and availability of urban spaces that motor vehicles have previously occupied densely, now to be used by pedestrians. The social innovations introduced are associated with public services previously unavailable in the local context: the improvement of pedestrian spaces, applying temporary interventions for road requalification with a transformation of streets.
The improvement of urban mobility, which responds to the needs evidenced by society, requires services that result in new ways of people occupying the city road space. It is about not only expanding, but also creating and requalifying services for active mobility. New, improved or modified services that result from social innovation, unlike conventional market innovation, are geared toward generating solutions for society rather than the private individual.
The Reduced Speed Zone and Complete Street cases illustrate social innovation opportunities anchored in public services for active mobility in São Paulo. It shows the relevance of paying attention to forms of non-technological innovation, and that the deliberate structuring of innovation networks does not necessarily support innovative processes and results verified in the local context.
The development, introduction and support of social innovation was supported by the role of third sector organizations, with the establishment of agreements with the city government. Additionally, it requires knowledge and competencies from public and third sector organizations, the use of material factors (i.e. construction of roundabouts, temporary and permanent expansion of sidewalks, narrowing of traffic/moving lane, reduction of corner radii, accessibility ramps), and interactions between key stakeholders.
Through the work of third sector organizations, we also highlight the role of volunteers and collectives in the creation and introduction of solutions for active mobility, which meet social needs based on the inclusion of pedestrians as a priority in the use of urban road space. The organizations draw attention to the interests of the individual citizen and use their experience to interact with the public service provider (City Hall) in the identification of areas for intervention and in the establishment of evidence bases on the effectiveness of the techniques used for the requalification of the road space. They also assist in the definition of forms and characteristics of social innovation (service characteristics), that represent solutions to social needs presented to the public sector (service provider).
The public sector may create a window of opportunity for the promotion of innovations, through public policies, and introduces services for the requalification and maintenance of pedestrian urban space. This approach, focused on the relationship between social innovation and innovation in services, therefore permits a better understanding of innovation processes and results.
† This study was financed in part by the Coordenação de Aperfeiçoamento de Pessoal de Nível Superior – Brasil (CAPES) – Finance Code 001
The last few years have seen an explosion in the number and size shared micro-mobility systems (“SMMS”) across the United States. Some of these systems have seen extraordinary success and the potential benefit of these systems to communities is considerable. However, SMMS have repeatedly ran into legal barriers that either prevent their implementation entirely, confuse and dissuade potential users, or otherwise limit SMMS’s potential positive impact.
This paper reflects a detailed study of state laws relating to SMMS and the platforms commonly used in these systems. The study uncovered many inconsistencies with micro-mobility laws across the country. Currently, many states lack clear definitions for these emerging forms of transportation, which do not otherwise fit neatly in the categories contemplated by existing law. Several states lack clear, state-level policies, which has led to discrepancies between state and local regulations. Further, there are several areas of micro-mobility law that are sharply inconsistent between states. All of these differences leave users confused as to what the law is and may discourage them from riding.
A number of states are attempting to remedy inconsistencies and legislative silence by passing and proposing laws that regulate the use of electric bikes (“e-bikes”) and electric scooters (“e-scooters”), but even these efforts are unlikely to bring the consistency that is needed. Federal authorities should act to create uniform laws and work with states to adopt them, otherwise, the lack of a legal infrastructure may threaten to stifle the innovation and undermine SMMS’s promised returns.
Funding for this research was provided by a grant from the Pacific Northwest Transportation Consortium (PacTrans), USDOT Transportation Center for Federal Region 10. Additional funding for research assistance was provided by the University of Idaho College Of Law. Thanks also to Ken McLeod of the League of American Bicyclists, Andrew Glass Hastings of Remix, Steve Hoyt-McBeth and Briana Orr of the City of Portland, Chris A. Thomas of the law firm of Thomas, Coon, Newton and Frost, and Asha Weinstein Agrawal of San Jose State University, all of whom were generous with their time, responding to questions and requests and advising the authors on these topics. Credit for design and creation of the searchable state law database, and all the coding it required, belongs exclusively to Timothy Koglin. Thanks to Spencer Felton, Erin Hanson, Brandon Helgeson, Jacqueline Maurer, and Jamie Schwantes for outstanding research of the laws of all 50 states and of the District of Columbia, for populating the database, and for assistance in compiling the report and the early drafts of this paper. ×
The first bike-share programs in the United States appeared in 2010 and since then micro-mobility sharing of electric bikes (“e-bikes”) and electric scooters (“e-scooters”) has greatly expanded.3333.
Alex Baca, What Cities Need to Understand About Bikeshare Now, Bloomberg Citylab (April 24, 2018, 10:17 AM), https://www.bloomberg.com/news/articles/2018-04-24/a-mostly-complete-taxonomy-of-bikeshare-so-far. ×
The legal environment, however, has been slow to embrace these innovations, or even to address them. The success or failure of shared micro-mobility systems (“SMMS”) may turn on the legal environment in which they attempt to operate. This study surveyed the laws governing bicycles, e-bikes (bicycles equipped with electric motors to assist in propulsion), and e-scooters (stand-up kick scooters powered by an electric motor) in all fifty states and the District of Columbia, and created a searchable database summarizing these laws as they may affect SMMS. The survey revealed serious issues and challenges for SMMS, as the development of the legal landscape has failed to keep pace with shared micro-mobility innovations.
Structure of the sharing systems
Two separate models of SMMS have emerged. Some systems have fixed docking stations where bicycles are picked up and returned. Other systems are “dockless,” and use GPS systems and cell phone apps to help users locate available bicycles. The user can leave the bicycle in almost any location when the trip is completed, and the next user can find and claim it for its next use. While bike-share systems have been implemented using both docking and dockless systems, e-bike and e-scooter systems overwhelmingly favor the dockless approach. It is common to see multiple systems using different mobility devices in operation side-by-side in the same municipality, essentially competing with each other.3434.
Susan Shaheen & Adam Cohen, UC Berkeley: Transp. Sustainability Research Ctr., Shared Micromobility Policy Toolkit: Docked and Dockless Bike and Scooter Sharing (2019), https://escholarship.org/uc/item/00k897b5#main; Nicole DuPuis, Jason Griess & Connor Klein, Nat’l League of Cities, Micromobility in Cities: A History and Policy Overview (Laura Cofsky ed., 2019), https://www.nlc.org/sites/default/files/2019-04/CSAR_MicromobilityReport_FINAL.pdf. ×
These dockless systems raise additional challenges not seen in earlier docked systems. Docked systems typically require some level of municipal cooperation to provide land in ideal locations to place the docking stations as well as lengthy investments of time and capital to get the systems up and running. Dockless systems require none of these. Instead, they can pop-up in a city overnight with little to no notice to any government officials or the general public. This lack of notice and cooperation can lead to serious legal problems down the road.
Regardless of how the SMMS is structured, the legal regime that governs the use of the mobility – rules governing who can ride, where they can ride, how riders must be equipped, etc., as well as riders’ perception of those laws – can have an outsized impact on the success of the system. This project was aimed at ascertaining and analyzing these various laws across the country.
Potential benefits of shared micro-mobility
SMMS serve a wide variety of purposes, including flexible mobility, emission reductions, individual financial savings, reduced traffic congestion, reduced fuel use, health benefits, improved multimodal transport connections, “last mile” connection to public transport, and equity (greater accessibility for minority and lower-income communities).3535.
Peter Midgley, Urban Mobility Advisor, Address at Global Consultation for Decision Makers on Implementing Sustainable Transport (2019), https://sustainabledevelopment.un.org/content/documents/4803Bike%20Sharing%20UN%20DESA.pdf; Benjamin Schneider, What Keeps Bike Share White, Bloomberg Citylab (July 14, 2017, 9:07 AM), https://www.citylab.com/equity/2017/07/what-keeps-bike-share-white/533412; James Woodcock, et al., Health Effects of the London Bicycle Sharing System: Health Impact Modelling Study, theBMJ (Feb. 13, 2014), https://www.bmj.com/content/348/bmj.g425. ×
Most of these objectives – with the exception of health benefits – are served equally well by e-bike and e-scooter sharing systems.
But while e-bikes and e-scooters cannot deliver the health benefits that would come from getting users to travel under their own power, they offer other benefits that traditional bicycles lack. These include (1) the ability to travel with minimal physical effort, (2) the ability to use without getting sweaty, (3) the capacity to travel longer distances or on hillier terrain, (4) the ability to use in all types of clothing (at least for e-scooters – which are compatible with dresses in a way that bicycles are not) and, (5) the promise of an entirely different level of fun. To the extent that these attractions lure people out of their cars, when traditional bicycles would not, these new micro-mobility sharing systems have the potential to generate societal benefits well beyond the promise of a basic bike-sharing system.
All of these benefits speak strongly in favor of SMMS, suggesting that local governments should be supportive of them. Indeed, some municipalities have invested heavily in these systems, subsidizing them, or otherwise committing public funds to their installation and operation. At the same time state and, to a lesser degree, local governments operate legal regimes that have the potential to undermine all these benefits, particularly where users receive confusing or mixed messages about what is legal and what is not.
The research team set out to examine the relevant laws in all fifty states and the District of Columbia. It developed a list of questions related to sharing platforms, falling into nine categories: Definitions, Age Restrictions, Safety Equipment, Licensing Requirements, Where to Ride, Riding Under the Influence, Insurance Requirements, Sidewalk Clutter, and Shared Micro-Mobility Regulations. The research team then developed a database in Microsoft Access to facilitate the collection, storage and analysis of the state laws, and employed graduate students from the University Of Idaho College Of Law for the summer of 2019 to research the laws in each state and input them into the database.
The researchers used the LexisNexis legal database, Westlaw, and state-operated websites in each assigned jurisdiction to find the relevant laws. Since this is an emerging field of law, many states have legislation pending at various stages of the legislative cycle. For the purposes of this study, any laws that had been fully enacted by the state government were included as the relevant law, even if they had not yet gone into effect. Any laws that were pending in the state legislature or were awaiting the governor’s signature were not considered for this study.
The research team met weekly to discuss any unclear laws and to ensure that similar situations were logged in a consistent manner. After the states were completed, researchers checked a sampling of each other’s work to ensure that the data collection had been done in a consistent manner. Any and all discrepancies that were identified were raised for discussion, clarification, and ultimately harmonization.
Even the most cursory review of the data collected reveals some compelling conflicts and gaps in the legal and regulatory regime that governs micro-mobility-sharing systems in the United States. These legal deficiencies threaten the success of such ventures, and limit society’s ability to achieve the myriad benefits that such innovations promise. Most of the examined laws regulate the use of micro-mobility (bikes, e-bikes, and e-scooters) and not sharing systems. While the problems discussed below do not apply exclusively to these shared systems, many of them are made exponentially more problematic because of the typical role shared mobility plays. The following discussion will highlight some of the largest legal problems and the specific difficulties they pose for the successful implementation of SMMS.
The most prevalent legal problems the study revealed were the numerous inconsistencies and ambiguities in the laws regulating the use of micro-mobility. Inconsistencies arise in a few distinct ways and each presents a slightly different problem to SMMS. Each of these inconsistencies is no more than a minor inconvenience to experienced riders who are either familiar with their local specifications, or know what kind of laws vary in different states and how to fill those gaps when riding in a new location. Anyone who has invested in a means of micro-mobility is likely to have invested some effort in learning the rules that govern its use. To misquote Socrates, they are wise because they know what they do not know.
However, the inexperienced or recreational rider, or the tourist, may be caught completely unaware of any variation or change in the law. Since these casual or inexperienced riders are the target market for most SMMS, inconsistent laws pose a potentially crippling impediment to their success. In our research laws were grouped into two categories. First, laws that are inconsistent with other laws in the same state, here called internal inconsistency. Second, laws that are inconsistent between states, here called external inconsistency – but perhaps better characterized as state-by-state variations in the law. Before addressing the external consistency issues, we will turn to the more acute problem of internal consistency: where even within a single state, sharp differences, ambiguities, and even conflicts exist in the applicable laws.
a. Internal inconsistency in the laws
While most laws are not facially inconsistent, several states’ statutory schemes create confusion that unnecessarily burdens riders. E-scooters in Oregon, for example, are banned from sidewalks and prohibited from traveling faster than 15 mph. But simultaneously, mobility devices used in the street are prohibited from traveling in the roadway at less than the normal speed of traffic.3636.
Or. Rev. Stat. §§ 814.512-524 (2020) (Defining the offense of “unlawful operation of a motor assisted scooter.”). ×
Thus, if traffic flows at 25 mph, the scooter is required by law to travel no faster than 15 mph, but no slower than 25 mph.3737.
The conflict is arguably reconciled Or. Rev. Stat. § 814.520, which suggests that a rider may avoid liability for the separate offense of “improper operation of a motor assisted scooter” for driving too slowly if she keeps as close to the right edge of the roadway as possible. But because it is not clear whether “improper operation” is the same offense as “unlawful operation,” the legal requirements remain, at best, ambiguous. At worst we have an outright conflict. ×
Even if there is a way to read these laws together consistently, it is certainly not clear at first glance. The resident who may want to use the new SMMS to help commute to work or the tourist who wants to use it to get around town cannot easily tell how fast or where they can ride.
Other issues can arise when a state does not clearly define e-bikes or e-scooters. Even when an e-bike or e-scooter is not defined by statute, it may fall within another statutory definition, such as motorcycle, moped, or more broadly, motor vehicle. This categorization can lead to more restrictive regulations of e-bikes and e-scooters, such as requiring driver’s licenses, registration, or insurance. For example, New York does not define e-bike or e-scooter. Because motor vehicles are defined as “every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power,” e-bikes and e-scooters both fall within this category.3838.
N.Y. Veh. & Traf. Law § 125 (McKinney 2020). ×
New York state law also requires that every motor vehicle be registered in order to drive on public highways.3939.
N.Y. Veh. & Traf. Law § 401 (McKinney 2020). ×
However, as of 2019, the Department of Motor Vehicles did not allow for the registration of e-scooters or e-bikes, which appeared to render riding these devices in public illegal according to their website at the time.4040.
Motorized devices that cannot be registered in New York, N.Y. State Dep’t of Motor Vehicles, https://web.archive.org/web/20190316092234/https:/dmv.ny.gov/re gistration/motorized-devices-cannot-be-registered-new-york (last visited July 25, 2020) (That agency site was recently changed to indicate that e-bikes may be operated “on some streets and highways in New York State,” and e-scooters will receive the same treatment later this year). Electric Scooters and Bicycles and Other Unregistered Vehicles, N.Y. State Dep’t of Motor Vehicles, https://dmv.ny.gov/registration/electric-scooters-and-bicycles-and-other-unregistered-vehicles (last visited July 25, 2020). ×
This is but one example of how bureaucratic operations can frustrate legislative actions. The inconsistency, in turn, is likely to result in user confusion.
Additionally, state laws can conflict with the laws of the state’s own counties or municipalities. In an emerging field such as shared micro-mobility, some city ordinances conflict directly with their state law. Direct conflicts are likely to occur when a city chooses a position quickly and the state subsequently adopts a contrary position that is incompatible with the local law without allowing for local variation of the matter. While the state law presumably supersedes the local ordinance, the conflicting local law remains on the books. A couple of examples may illustrate.
Sometimes a local law is more restrictive than a state law, so the discrepancy may not create a direct conflict. California state law, for example, identifies three classes of e-bikes and allows all to be ridden on sidewalks.4141.
Cal. Veh. Code § 21207.5 (West 2020). ×
West Hollywood, CA, however, recently banned the use of all classes of e-bikes on sidewalks.4242.
West Hollywood, Cal., Mun. Code § 10.04.030 (2020). ×
In this situation, it is possible for both laws to be valid, depending on whether the state law is read to pre-empt local variation or not. If not pre-empted, the local, more restrictive law simply imposes higher standards than required by the state. Nonetheless, the inconsistency can create difficulties for riders. In King County, Washington, for example, adult users of bicycles are required to wear helmets, but elsewhere in the state they are not.4343.
King County, Wash., Bd. of Health Code § 9.10 (2018). ×
Once again, the SMMS user – i.e. an occasional or casual rider – is far more likely to be caught off guard.
Finally, state and local laws may define or classify mobility devices differently. For example, the city of Seattle defines e-bikes in a manner that does not mirror the three-category classification system for e-bikes adopted by the State of Washington.4444.
Seattle, Wash., Mun. Code §11.14.055; Wash. Rev. Code Ann. § 46.04.169 (West 2020). ×
The definition provided by Seattle only encompasses what would be Class 1 and Class 2 e-bikes according to Washington State law, leaving Class 3 e-bikes outside of the city’s definition. This creates the potential for regulatory issues if Class 3 e-bikes are not considered e-bikes at all in Seattle, affecting riders’ abilities to ride on bicycle paths or be subject to other restrictions or protections offered to e-bike riders.
b. Externally inconsistent laws
The legal system has long grappled with the problem of state-by-state variations in the law. Some such variations have been celebrated, where local control has been hailed as a benefit of federalism. But there are limits to how and where such variation can or should be tolerated, and the problems of “external inconsistency” have at times demanded remedial attention. Sometimes the federal government has to step in and pre-empt the field, in order to achieve a desirable consistency in the law: examples include historically federal concerns, including bankruptcy,4545.
See generally, Oleksandra Johnson, The Bankruptcy Code as Complete Preemption: The Ultimate Trump?, 81 Am. Bankr. L.J. 31 (2007). ×
securities and banking regulation,4646.
Jay B. Sykes, Cong. Research Serv., R45081, Banking Law: An Overview of Federal Preemption in the Dual Banking System (January 23, 2018), https://fas.org/sgp/crs/misc/R45081.pdf. ×
See generally, 8 U.S.C. ×
and national security.4848.
See, e.g., USA PATRIOT Act, Pub. L. No. 107-56), 115 Stat. 272 (2001). In the 1990s, federal jurisdiction expanded to include violence against women. The inability to enforce restraining orders across state lines prompted Congress to federalize an area of law long reserved to the states. Lisa N. Sacco, Cong. Research Serv., The Violence Against Women Act (VAWA): Historical Overview, Funding, and Reauthorization, 3rd ed., (2019), https://fas.org/sgp/crs/misc/R45410.pdf. ×
Other times, states have chosen voluntarily to align their laws with each other’s: examples include the adoption of the Uniform Commercial Code.4949.
States’ eagerness to facilitate commercial transactions for businesses within the state meant that states were happy to adopt a national standard, so interstate transactions could be more easily affected. At present 49 of the 50 states have adopted all or substantially all of the UCC. Tracey George & Russell Korobkin, Selections from the Restatement (Second) Contracts and Uniform Commercial Code, 4-5 (2019). ×
Similar efforts have yielded an overwhelmingly consistent motor vehicle code, making it easy for drivers to traverse the country without worrying that they will run afoul of obscure and idiosyncratic state laws. At the same time, some areas of law – such as Tort Law and Family Law – have been held to be squarely within the province of the states, where uniformity is not necessarily desirable as a matter of federalism.5050.
Tort reform laws are all over the map, with all kinds of different approaches taken in the various states. Family Law, of course, has become a battleground as these local variations – affecting the rights of interracial, same-sex, and polygamous unions, among others – have come under attack for perceived violations of constitutional guarantees. See e.g. Reynolds v. U.S., 98 U.S. 145 (1879); Loving v. Virginia, 388 U.S. 1 (1967); Obergefell v. Hodges, 576 U.S. 644 (2015). ×
Justice Louis Brandeis famously praised this aspect of our federal system, noting 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.”5151.
New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932). ×
The “laboratories of democracy” concept has borne fruit for micro-mobility use. The state of Idaho adopted in 1982 its “Idaho stop law” that allows cyclists to treat “stop” signs as if they were “yield” signs, and to treat red lights as if they were “stop” signs.5252.
Asmara M. Tekle, Roll On, Cyclist: The Idaho Rule, Traffic Law, and the Quest to Incentivize Urban Cycling, 92 Chi.-Kent L. Rev. 549 (2017). ×
The resounding success of this experiment has led other jurisdictions to follow suit.5353.
Delaware has adopted the stoplight portion of the Idaho Stop, redubbing it the “Delaware Yield.” Del. Code Ann. tit. 21 § 4196A(c) (2020). Colorado State law specifically allows for local adoption of either the Idaho or Delaware models but does not adopt either at the state level. Colo. Rev. Stat. § 42-4-1412.5 (2019). Oregon has adopted the limited Delaware model. Or. Rev. Stat. §§ 814.414, 416 (2020). Arkansas has fully adopted the Idaho Stop. Ark. Code. Ann. § 27-51-1803 (2020). Washington has enacted legislation authorizing the Delaware version which will go into effect on Oct. 1, 2020. Increasing Mobility Through the Modification of Stop Sign Requirements for Bicyclists, 2020 Wash. Sess. Laws 6208. ×
At the same time, the patchwork of legal requirements for bicycle and other micro-mobility use in different states may sow confusion, particularly for travelers who may find themselves using bikeshare in different states, or in communities situated on a state border. Such issues arise, for example, on roads surrounding the Chipman Trail bike route, which connects Washington State University in Pullman, Washington (WSU), with the University of Idaho in Moscow, Idaho, eight miles east. At the start of a recent community-organized ride that started on the WSU campus, the riders had to be cautioned that they were in Washington now, and needed to stop at stop signs.5454.
The Tour de Lentil, associated with the annual Lentil Festival in Pullman Washington, is a 50k/100k/150k ride that takes place every August. John Nelson, Tour de Lentil Provides Challenging Ride Through the Palouse, The Spokesman-Review (Aug. 11, 2017), https://www.spokesman.com/stories/2017/aug/11/tour-de-lentil-provides-challenging-ride-through-t/. The Fondo on the Palouse, a “century” (100-mile ride) which starts in Moscow, Idaho, encounters similar issues, as its route straddles the Washington-Idaho border. About the Fondo on the Palouse, The Fondo on the Palouse, http://fondopalouse.org/ (last visited July 19, 2020). ×
There, the ride was organized by a local cycling club who was familiar with the differences and intricacies of the two states’ laws, so the riders were able to prepare for the change in laws. However, if a solo rider or group of friends decided to take the bikes from WSU’s campus bike sharing program along that same trail for a Saturday ride, they would be unlikely to know that the governing laws had changed on them mid-ride. Absent a reminder or notification of some kind they are unlikely to even think to look up the law to see if there was any discrepancy.
While the laws governing cars are largely consistent across the country, inconsistency persists in the laws applying to bicycle use and even more so in those governing e-bike and e-scooter use. This is a particular concern given that a significant number of users of such systems are travelers and tourists – people from outside the relevant jurisdiction and therefore ill-equipped to know local laws.5555.
Virginia Tech, Virginia Tech Capital Bikeshare Study: A Closer Look at Casual Users and Operations 10 (2012), https://ralphbu.files.wordpress.com/2012/01/vt-bike-share-study-final3.pdf. ×
Similar problems emerged in the early days of automobiles, and the need for consistent laws governing motor vehicle transportation became apparent. A special committee was appointed at the federal level to draw up a uniform code – one that facilitated effective automobile use – and pressure was put on the state legislatures across the country to adopt it. This eliminated idiosyncratic rules that may have existed in different cities and states and allowed manufacturers to produce vehicles that were legal in every state.5656.
See J. Allen Davis, The California Vehicle Code and the Uniform Vehicle Code 14 Hastings L. J. 377 (1963). ×
Drivers could then have some confidence of the rules of the road when crossing state lines. While traffic laws are not entirely uniform in the U.S. (e.g. some states – including Washington, Oregon, and Idaho – allow left turns on red lights when the driver is turning onto a one-way street, for example), the exceptions are very few and largely minor. Even the traffic signals and signage have been made standard across jurisdictions.5757.
This standardization occurred over time as automobiles became more widespread. Clay McShane, The Origins and Globalization of Traffic Control Signals, 25 J. of Urban History 379, 389 (1999), https://sites.tufts.edu/carscultureplace2010/ files/2010/09/McShane-traffic-signals-1999.pdf. ×
Efforts to bring uniformity to the laws governing cycling – much less to the laws governing the use of e-bikes, e-scooters, or SMMS in general – have yet to bear fruit.
Laws that dictate where each platform can and cannot be ridden, “where to ride” laws, present particularly troublesome external inconsistency. Most states allow bicycles to be ridden on the sidewalk or the street so the rider can choose to ride where they feel the most comfortable. However, e-bikes and e-scooters, the primary platforms for dockless SMMS, are restricted much more and far less consistently. E-bikes are burdened slightly, as in about half of states they cannot be ridden on sidewalks. E-scooters, as the newest platform on the scene, are treated the most inconsistently. Over a third of states do not have any regulation at all regarding where e-scooters are allowed.5858.
See infra Section 2.b. and Figure 4. ×
In those states that do address e-scooters, about half allow them to be ridden on the street and half do not. A handful of states prohibit e-scooter use on the shoulder of the road or the bike lanes. Twenty-three states allow e-scooters to be ridden on sidewalks while six prohibit their use there; the remaining states are silent on the issue. If an individual purchases one of these platforms, especially an e-scooter, it is reasonable to expect that they would look up the rules for the use of their new device in their own state.5959.
A neighbor of author David Pimentel, however, acquired a motorized scooter in 2019, and after a discussion with a police officer, is now afraid to ride it anywhere. The police officer was unable to advise him where, or whether, such a vehicle could be used in the city limits. ×
However, it seems far less likely that the typical SMMS user would know the details about where they are allowed to ride or take the time to research the question, even if it were easy to find answers, which it often is not. Further, many riders who do not know where they can ride may forgo using the SMMS altogether because of their questions.
Other types of laws also raise external inconsistency issues. For instance, helmet laws vary dramatically in various states (see Figures 1.1 and 1.2). In over 20 states, there is no requirement that anyone wear a helmet when using a bicycle, an e-bike, or an e-scooter. Many states impose helmet requirements on bicycle riders under a certain age. Six states require helmets for all users of e-bikes.
FIGURE 1.1 – Mandatory Helmet Laws
Helmets are required . . .
FIGURE 1.2 – Mandatory Helmet Laws
Helmets are required . . .
Laws requiring helmet use can be particularly burdensome for bike-sharing systems because the typical user does not carry a helmet with her/him.6060.
Gigi Douban, A Pothole for Bike-Sharing Programs: Helmets, Marketplace Morning Report (Sep. 4, 2015), https://www.marketplace.org/2015/09/04/business/pothole-bike-sharing-programs-helmets/; David Gutman, Will Helmet Law Kill Seattle’s New Bike-Share Program?, Seattle Times (Dec. 19, 2016), https://www.seattletimes.com/seattle-news/transportation/will-helmet-law-kill-seattles-new-bike-share-program/; Emily Elias, Helmets Pose Challenge For Vancouver Bike Share Program, CBC (July 19, 2013) https://www.cbc.ca/news/canada/british-columbia/helmets-pose-challenge-for-vancouver-bike-share-program-1.1379433. ×
Attempts to share helmets along with bikes have not been well received by the public, presumably because of concerns about the cleanliness of shared helmets.6161.
Gutman, supra note 29. ×
Some speculate that the failure of Seattle’s first bike-share venture was due to the strictures of the mandatory helmet law there;6262.
more recent success with SMMS in Seattle may be due to local police’s decision to relax their enforcement of King County’s mandatory helmet laws.6363.
David Gutman, Helmets may be Seattle Law, but Many Bike-Share Riders Don’t Wear Them, Seattle Times, (Aug. 9, 2017), https://www.seattletimes.com/seattle-news/transportation/helmets-may-be-seattle-law-but-many-bike-share-riders-dont-wear-them/. ×
The “ins.tructions” commonly provided by the micro-mobility sharing services are unhelpful on this score, as they may simply tell the user to wear a helmet, without indicating whether the helmet is required by law (e.g. the instruction video for Bird scooters, inside the Bird app, includes a “Bring your own helmet” instruction, without further elaboration to clarify whether this is a legal requirement or just a prudent recommendation).6464.
App: Bird, How to Ride, (Bird Rides, Inc.) (available on Google Play or the Apple App Store), www.bird.co/how/. ×
This uncertainty can serve as a deterrent to would-be riders.6565.
Ronald W. Pimentel, Michael B. Lowry, David Pimentel, Amanda K. Glazer, Timothy W. Koglin, Grace A. Moe, & Marianna M. Knysh, If You Provide, Will They Ride? Motivators and Deterrents to Shared Micro-Mobility, 6 Int’l J. Bus & Applied Soc. Sci. 26, 31 (2020). ×
E-bike and e-scooter riders also face uncertainty about the application of Driving Under the Influence (“DUI”) laws. In many states, it is not at all clear whether the e-bikes and e-scooters qualify as “motor vehicles” for purposes of DUI statutes. A small handful of states have attempted to clarify this by passing separate laws governing Riding Under the Influence (“RUI”), which explicitly apply to micro-mobility users. These laws typically impose lesser punishments for RUI than the state imposes for DUI violations, which makes sense since an intoxicated driver is endangering the lives of others (pedestrians, car passengers, etc.) at a level far beyond the dangers posed by an intoxicated e-scooter rider. A general breakdown of state law treatment of these issues is shown in Figure 2.
FIGURE 2 – “Riding Under the Influence” Legislation*
*A few states have both RUI laws specifically applicable to micro-mobility, and separate DUI laws that apply equally to micro-mobility, introducing potential for contradiction and inconsistency (see discussion of such issues above). The states that fall into both the DUI and the RUI categories are depicted in the “RUI Law Applies” section of the pie charts above.
Naturally, some level of inconsistency is necessary. Not every community has the same needs, and the laws that are appropriate in New York City may not be appropriate in Moscow, Idaho (pop. 24,000). However, a common foundation of legal rules for micro-mobility use, short of complete uniformity, is important if those transportation modalities are to take hold in American cities. For instance, some kind of baseline system that applies broadly but allows for limited local variation based on the specific needs of the location, where those local variations could be clearly demonstrated to potential riders, would go a long way to solving both internal and external inconsistency issues.
(Lack of) Awareness of the law
Even if inconsistent laws were aligned, micro-mobility users still might not know what the laws are. Someone who is unaware of the law will have difficulty complying with it and, as noted above, the uncertainty may scare riders off altogether.
a. Ignorance and (mis)perception of the applicable laws
It is far from clear, even for a lawyer trained to interpret statutes, which existing laws may apply to a particular mode of micro-mobility. In some states, the term “pedestrian” is interpreted to include bicyclists on sidewalks, so laws that give pedestrians the right-of-way simultaneously give bicyclists the right-of-way.6666.
E.g. Mich. Comp. Laws § 257.660c (2020). ×
In thirty-five states, the word “vehicle” is interpreted to include bicycles, which lumps bicycles in with other vehicles and subjects them to the laws governing vehicular traffic.6767.
E.g. Or. Rev. Stat. § 814.400 (2020). ×
As for e-bikes and e-scooters, the problem is even more difficult. Because most of these laws were passed before e-bikes and e-scooters came on the market, laws cannot reflect the legislature’s intention concerning them. Pullman, Washington, requires that all scooters be equipped with a “muffler,” for example, in an ordinance that must have been drafted during an era of gas-powered scooters;6868.
Pullman, Wash., Code § 12.11.020(8) (2019). ×
it is, of course, a ridiculous requirement to impose on virtually silent e-scooters. Even the most well-informed user is left to wonder whether an e-bike is a “motor-driven cycle” within the meaning of the statute, for example, or whether an e-scooter is a “motor vehicle.” Exacerbating the problem, there does not appear to be any consensus or consistency, state-by-state, on what these terms mean.
Potential users of SMMS being unaware of the laws governing the mobility presents two separate problems. The first is that users may unwittingly violate the law. They may assume that e-scooters are legal on sidewalks, and ride them there, illegally disrupting pedestrian traffic and unwittingly subjecting themselves to liability. The second concern is that the uncertainty itself will be a deterrent to use of the mobility. A potential user may be tempted to rent a scooter or a bike but may err on the side of caution and avoid using the device altogether when unsure of whether it’s legal to ride without a helmet, or to ride without a driver’s license, or to ride on the running path that goes through the park or along the river. A July 2019 survey of users and non-users in the Northwest suggest that uncertainty about the law can significantly discourage use of SMMS.6969.
Pimentel, supra note 34, at 31. ×
Uncertainty about where it is legal to ride provides at least a slight deterrent effect for 74% of potential users (See Figure 3).
FIGURE 3 – Deterrent Effect of Legal Uncertainty
b. Statutory silence
The lack of legislation in many jurisdictions leaves both the purveyors of SMMS and their customers in the dark about what is legal and what is not. The laws are reasonably comprehensive as they apply to bicycles, but significant gaps exist for newer technologies, particularly e-scooters, which do not fit so easily into pre-existing categories. While some states are already working to get laws on the books that govern the use of such mobility, many more legislatures either have failed to perceive a need or have been unwilling or unable to muster the political will or material resources to respond to it. Figure 4 shows the conspicuous gaps which exist in several states’ legislation regarding where riders can use various devices, particularly e-scooters. It unrealistic to expect states to have comprehensive legal regimes in place regarding these newer devices; it is understandable that legislatures may have trouble keeping up with new technologies. However, SMMS will be hamstrung in any states that fail to grapple with basic issues, such whether these devices can be ridden on their sidewalks, or on their streets, or on both, or on neither.
FIGURE 4 – Where to Ride Table
c. Emerging legislation
By 2019, new laws were in the works in a number of states. New York’s legislature introduced a bill that defined “bicycles with electric assist” and “electric scooters,” stipulating that e-bikes are subject to the same regulations as bicycles while e-scooters are subject to new regulations laid out in the bill.7070.
S.B. 5294 (N.Y. 2019). The bill was vetoed by the Governor in December 2019. ×
The Hawaiian legislature introduced two separate bills to govern the use of these devices. The first set a minimum age of fifteen for e-bike riders, and included e-bikes within the definition of bicycles, thus subjecting them to most of the same regulations that govern non-motorized bicycles.7171.
H.B. 812 (Haw. 2019). ×
The second defined “electric foot scooters,” set a minimum riding age of fifteen, and subjected e-scooters to many of the same laws that govern bicycles.7272.
H.B. 754 (Haw. 2019). ×
Similarly, Alaska introduced a bill that defined e-bikes without a classification system, and clarified that they are not motor vehicles or subject to any registration requirements.7373.
H.B. 123 (Alaska 2019) ×
The wave of new legislation presents both challenges and opportunities for SMMS. If the laws passed aid the implementation and operation of SMMS or facilitate the platforms that they use, then SMMS may be well on their way to becoming a permanent fixture of American cities. Additionally, states have the opportunity to see what laws are the most successful and to copy them, laying the groundwork for a more consistent, if not entirely uniform system. One example is the three-tiered e-bike classification system. This system was first implemented in California in 2015 and has since been adopted almost completely in twenty-five other states, making it by far the most common classification system.7474.
Claudia Wasko, Why More States Need to Adopt the Three-Class Ebike System, Bosch, https://www.bosch-ebike.com/us/everything-about-the-ebike/stories/three-class -ebike-system/# (“In 2015, California was the first state to adopt this ‘3-Class’ approach, and since then, 25 other states followed suit: Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Maine, Maryland, Michigan, New Hampshire, New Jersey, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin and Wyoming.”). ×
A consistent and coherent classification system is a prerequisite to any unified e-bike laws that could come in the future. However, advocates (including SMMS providers) must act quickly to lobby for favorable laws, as it will become much harder to implement favorable laws after states have enacted barriers.
Laws addressing shared micro-mobility implementation and use directly
Some states have adopted laws that focus on sharing systems, recognizing the difference between regulating e-bike or e-scooter use and regulating the businesses or systems set up to share them. As of this writing, Alabama is the only state that has comprehensive shared micro-mobility law that covers bicycles, e-bikes, and e-scooters. Four other states, Arkansas, Nevada, Utah, and Washington, have enacted statewide regulations concerning e-scooter sharing systems exclusively. However, most states’ statutory schemes are either silent on this issue or leave the regulation of these systems to the local government.
Without any laws regulating the sharing systems directly, many problems are likely to arise which are specific to SMMS. One such problem is the “pop-up” SMMS start-ups. Without statewide regulations in place, SMMS providers may be able to enter a market more or less overnight with no warning to the local government. This presents a number of problems, many of which have already been discussed. These problems can be prevented with simple state-wide schemes which include regulations for startup procedures that allow SMMS to operate but require additional cooperation between the providers and the cities they serve.
Even when states do enact SMMS-specific laws, another issue emerges: shared micro-mobility laws that differ from the existing laws. For example, Alabama defines a “scooter” as:
[A] device weighing less than 100 pounds that satisfies all of the following:
(a) [h]as handlebars and an electric motor;
(b) [i]s solely powered by the electric motor or human power; [and]
(c) [h]as a maximum speed of no more than 20 mph on a paved level surface when powered solely by the electric motor.7575.
Ala. Code § 32-1-1.1(60) (2020). ×
By this definition, an e-scooter would qualify simultaneously as a “scooter” and as a motor vehicle in the Alabama Code.7676.
Ala. Code § 32-1-1.1(33) (2020). ×
Conversely, the definition for a “shared micromobility device” is a type of transportation device, including a scooter that is used in a shared micro-mobility device system.7777.
Ala. Code § 32-1-1.1(64) (2020). ×
The “shared micromobility device[s]” are subject to the same laws and regulations as a bicycle, and not a motor vehicle.7878.
See e.g. Seattle Times Editorial Bd., Opinion, Hold Bike-Share Vendors Accountable, Seattle Times (Sep. 5, 2019), https://www.seattletimes.com/opinion/editorials/hold-bike-share-vendors-accountable/; Quemuel Arroyo, Op-ed: Where Do We Put All Those Dockless E-Scooters?, StreetsBlog NYC (Feb. 4, 2020), https://nyc.streetsblog.org/2020/02/04/op-ed-where-do-we-put-all-those-dockless-e-scooters/; Elizabeth Chou, LA Looks to Improve Parking of Dockless Scooters and Bikes. Here’s How, L.A. Daily News (Oct. 22, 2019), https://www.dailynews.com/2019/10/22/la-looks-to-improve-parking-of-dockless-scooters-and-bikes-heres-how/. ×
As a result, scooters that are privately owned are subject to rules and regulations pertaining to motor vehicles, such as licensing requirements, while scooters that are used within a SMMS are subject to a different set of rules and regulations, including an exemption from the licensing requirement.
Parking and Storage
While there are several deficiencies in the laws governing SMMS (including the absence of them), the research painted a more encouraging picture about the problems of parking and storage. One of the most common complaints about dockless systems is the concern that the bicycles, e-bikes, or e-scooters get left in inconvenient places.7979.
See Arroyo, supra note 48. ×
Accordingly, the research team looked at the laws governing the problem.
Part of the concern is one of untidy or unsightly clutter, but the greater concern is about obstructing sidewalks and other thoroughfares of pedestrian traffic, creating a nuisance and a safety-related tripping hazard, as well as limiting access to the sidewalk for people with disabilities.8080.
See Arroyo, supra note 48. ×
While this concern often prompts critics to call for banning SMMS,8181.
Leif Reigstad, The Rise and Fall of Dockless Bike Sharing in Dallas, Texas Monthly, (Aug. 7, 2018), https://www.texasmonthly.com/news/rise-fall-dockless-bike-sharing-dallas/. ×
most states already have statutes that address the issues of clutter or obstruction, and the problem is simply a matter of finding a way to enforce these laws in the context of shared bikes, e-bikes, and e-scooters. Alabama, the state with the most comprehensive statewide shared micro-mobility legislation, specifically prohibits shared micro-mobility devices from being parked in a manner that impedes normal pedestrian movement.8282.
Ala. Code § 32-19-2(c) (2020). ×
However, many other states that currently lack shared micro-mobility legislation already have laws that prohibit all vehicles or specific micro-mobility devices from impeding pedestrian and other traffic. Still others list specific locations where such vehicles can and cannot be parked or delegate such decisions to local authorities. In total, thirty states already have statutes preventing micro-mobility devices from being strewn on or about the sidewalks.
Since laws preventing SMMS devices from cluttering the street are already in place, the problem may come from the difficulties of enforcement. Law enforcement may be hesitant to seize or ticket SMMS devices without clear directives. They are also likely even more hesitant to ticket a user who leaves them in an improper location because they plausibly may not know the requirements. Perhaps comprehensive SMMS laws such as those discussed above can help clarify these laws with regard to shared devices and enable law enforcement to manage the situation more effectively.
This problem may be one of perception more than reality. People are more likely to remember the few times they were walking down the sidewalk and had to step around an obstructing scooter or bicycle than they are to remember the countless times that they walked down the street without any such obstruction. Or they may remember an inflammatory picture they have seen in the press of unwanted and unloved bike-share bikes heaped in huge piles, and perceive a problem in the U.S., even though those pictures were taken in China.8383.
See generally, Dan Gardner, The Science of Fear: Why We Fear the Things We Shouldn’t-- and Put Ourselves in Greater Danger (2008) (discussing the “availability heuristic”). ×
Indeed, despite conspicuous complaints about the clutter associated with shared micro-mobility,8484.
Reigstad, supra note 50. ×
a study in Spokane Washington found the problem to be at most minor (finding that 96% of e-scooters were parked in a “preferred area” and that 98% of them were parked upright).8585.
Toole Design, Spokane Shared Mobility Study Final Recommendations 18 (2019), https://static.spokanecity.org/documents/projects/shared-mobility/spokane-shared-mobility-report.pdf. ×
Creating laws that favor bicycles and other micro-mobility to further promote SMMS
Laws that make bicycling, and other micro-mobility use easier will necessarily make SMMS more attractive to potential users; and laws that burden the mobility-user will have the opposite effect. The Idaho stop laws, for example, make cycling vastly more efficient and attractive.8686.
See Tekle, supra note 21. ×
State laws that expect cyclists to adhere to the laws that govern motor vehicles, in contrast – failing to account for the fact that bicycles have different capabilities, needs, and safety concerns – impose heavier burdens on cyclists and place them at greater risk of harm.8787.
David Pimentel, Cycling, Safety, and Victim-Blaming: Toward a Coherent Public Policy for Bicycling in 21st Century America, 85 Tenn. L. Rev. 753 (2018). ×
As noted above, mandatory helmet laws may also be a barrier to SMMS success. While it is tempting to cling to these laws as a fundamental safety measure, such laws have been sharply criticized as counter-productive, from a safety perspective,8888.
Luke Turner, Australia’s Helmet Law Disaster, 64 IPA Review 28, 28–29 (Apr. 2012), http://www.vehicularcyclist.com/ozdisaster.pdf; Craig Baird, Bike helmets can make roads more dangerous for cyclists, says Bike Regina, Regina Leader-Post (May 2, 2017), https://leaderpost.com/news/local-news/bike-helmets-can-make-roads-more-dangerous-for-cyclists-says-bike-regina; Sue Knaup, Are Helmet Programs Scaring Kids Away from Bicycling?, The Bike Helmet Blog (Nov. 10, 2015), https://www.bikehelmetblog.com/2015/11/are-helmet-programs-scaring-kids-away.html. ×
and for the implicit message that micro-mobility is very dangerous and therefore something to be avoided.8989.
Rosenthal, E., To Encourage Biking, Cities Lose the Helmets, N.Y. Times (Sept. 29, 2012), https://www.nytimes.com/2012/09/30/sunday-review/to-encourage-biking-cities-forget-about-helmets.html; Knaup, supra note 57. ×
That message, as well as the victim-blaming message that responsibility for cyclist safety lies solely with the cyclist, rather than with the drivers who hit them, can only discourage ridership.9090.
Peter Walker, The Big Bike Helmet Debate: “You Don’t Make it Safe by Forcing Cyclists to Dress for Urban Warfare,” The Guardian (Mar. 21, 2017), https://www.theguardian.com/lifeandstyle/2017/mar/21/bike-helmet-cyclists-safe-urban-warfare-wheels; Pimentel, supra note 56. ×
Laws that permit, or prohibit, riding bicycles on sidewalks or off-road paths and trails may have an impact as well. If people know that they can be cited for riding where they feel safe to ride, they may opt not to ride at all. For example, in a busy urban center, someone may be happy to ride an e-scooter on the sidewalk, but if they know that e-scooters are legal only in the street (as is the case in the states of Washington and California), they may stay off the scooter altogether.9191.
Cal. Veh. Code § 21235(g) (Deering 2020); Wash. Rev. Code Ann. § 46.61.710 (LexisNexis 2020). ×
Of course, the laws of states, such as Florida and South Dakota, that ban the use of scooters in the streets too, or of the twenty states that are silent on the subject, generate serious uncertainty about whether they can be used legally anywhere.
The wheels of transportation innovation turn much faster than the wheels of legislation. The legal system struggles, playing catch-up with industry changes. That alone does not necessarily constitute a problem. However, the lack of a legal infrastructure may threaten to stifle the innovation and undermine the potential benefits of SMMS in America. This comprehensive study of applicable laws exposes the gaps and inconsistencies in these laws and illustrates some of the impact of these legal deficiencies. The hope is that federal authorities may intervene, promulgating standardized legal rules for shared micro-mobility, as they have for automobiles, which would clarify and harmonize the scattershot approach heretofore taken. If the federal government is unwilling or unable (politically or otherwise) to act, perhaps interested parties – bicycling advocates, safety advocates, industry representatives, and regulators – can combine forces to produce a “uniform law,” one that states may be willing to adopt, much as they have the Uniform Commercial Code. The searchable database of the compiled state laws on this subject created in this study can support such efforts, as well as future research. In the meantime, innovators should be aware of and sensitive to how the variegated legal landscape may impact the results and the future of shared micro-mobility.
† David Pimentel is Associate Dean and Professor of Law at the University of Idaho. Before beginning his academic career, he served as staff in the U.S. federal judiciary, including one year as a Supreme Court Fellow, before going abroad to do rule of law development work in post-conflict countries (Bosnia, Romania, and South Sudan). He also spent four years with a United Nations war crimes tribunal in the Netherlands, where he developed an appreciation for cycling as transportation. Intrigued by Idaho’s bicycle laws, he has recently published scholarship on the public policy behind legal regulation of bicycle usage and of shared micro-mobility systems.
† Dr. Michael Lowry is an associate professor of Civil Engineering at the University of Idaho with a research focus on transportation planning. He serves on the National Academy of Science Committee for Bicycle Transportation and the Committee for Transportation Investment Decision-Making. He teaches courses on transportation safety, benefit-cost analysis, and geographic information systems. He was awarded the College of Engineering Outstanding Young Faculty award for excellence in teaching and research. Dr. Lowry has been a visiting scholar in Spain, Norway, the Netherlands, and the United Kingdom.
† Timothy W. Koglin is a recent graduate of the University of Idaho College of Law and (soon to be) member of the Washington State Bar Association. He spent time at the United States Military Academy and Washington State University before graduating from Liberty University with a B.S. in History. He spent the last two years of law school as the research assistant for David Pimentel working on a wide range of legal topics including parenting, sports, and transportation.
† Ronald W. Pimentel has been a marketing professor for 30 years and also had a 12-year career in industry doing marketing and sales. He completed a BA in Art/Design at BYU, an MBA at UC Berkeley, and a Ph.D. in marketing at The University of Arizona. He is currently a Scholarly Associate Professor of marketing and the Faculty Director of the Professional Sales Certificate program at Washington State University Vancouver. Ron has published three book chapters, and many journal articles and conference proceedings. Recent research has included inter-disciplinary work on shared micro-mobility.
Up to now, the way forward for roadways-based, commercial automated mobility remained somewhat of a mystery. Surely, we would not see AVs in the hand of individual owners anytime soon – too expensive. “Robotaxi” fleets commanded by the likes of Uber and Lyft seemed the most plausible option. There was, at least in appearance, a business case and that most industry players seemed to be putting their efforts towards an automated version of common passenger cars.
Over the course of 2019, the landscape slowly but steadily changed: public authorities started to worry more about safety and the prospects of seeing fleets of “robotaxis” beyond the roads of Arizona, Nevada or California seemed remote. This is how automated shuttles found their way to the front of the race towards a viable business model and a large-scale commercial deployment.
Many now mock these slow-moving “bread loafs,” ridiculing their low speed and unenviable looks. However, some of these comments appear slightly disingenuous. The point of the shuttles is not “to persuade people to abandon traditional cars with steering wheels and the freedom to ride solo.” I don’t see any of these shuttles driving me back home to Montreal from Ann Arbor (a 600 miles/1000km straight line). But I see them strolling around campuses or across airport terminals. The kind of places where I don’t quite care about the good looks of whatever is carrying me around, and also the kind of place where I wouldn’t take my car to anyway. There might be much to say about how certain electric vehicles marketed directly to the end-user failed because of their unappealing design, but I don’t plan to buy a shuttle anytime soon.
Looks aside, these automated “turtles” have a major upside that the “hare” of, say, Tesla (looking at you, Model 3!) may not dispose of. Something which happens to be at the top of the agenda these days: safety. While notoriously hard to define in the automated mobility context (what does safety actually imply? When would an AV be safe?) removing speed from the equation immediately takes us into a safer territory; public authorities become less concerned, and more collaborative, agreeing to fund early deployment projects. Conversely, scooters irked a lot of municipal governments because they go too fast (among other things). As a result, there was little public appetite for scooters and operators were forced to withdraw, losing their license or failing to become commercially viable.
As a result, it is the safe vein that various industry players decided to tap. Our turtles are indeed slow, with a top speed of 25mph, usually staying in the range of 15 to 20 mph. This is no surprise: that is the speed after which braking means moving forward several dozen if not hundreds of feet. Within that lower bracket, however, a vehicle can stop in a distance of about two cars (not counting reaction time) and avoid transforming a collision into a fatality. Hence, it goes without saying that such shuttles are only suitable for local transportation. But why phrase that as an only? Local transportation is equally important. Such shuttles are also suitable for pedestrian environments. Outside of the US, pedestrians have their place on the road – and many, many roads, across the globe, are mostly pedestrian. Finally, they can also be usefully deployed in certain closed environments, notably airports. In many places, however, deployment of such shuttles on roadways might require some additional work – creation of lanes or changes to existing lanes – in order to accommodate their presence. Yet the same observation can also be made for “robotaxis,” however, and the adaptations required there may be much more substantial. The limited applications of automated shuttles may be what, ultimately, makes them less appealing than our Tesla Model 3 and its promises of freedom.
Overall, turtle shuttles appear closer to a marginal development from widely used rail-based automated driving systems, rather than a paradigm shift. That might precisely be what makes them a good gateway towards more automation in our mobility systems; there is wisdom in believing that we will have a better grasp of the challenges of automated mobility by actually deploying and using such systems, but it is not written anywhere that we need to break things to do so.
Earlier this month, Connecticut’s Governor Ned Lamont announced and released the details of his plan to upgrade and “transform” the state’s transportation system. The plan, Connecticut 2030 (CT2030), allocates $21 billion primarily to improving Connecticut’s highways, airports, mass transit, and ports and is pitched as “what Connecticut families and employers deserve.” While that is a wonderful goal, as usual, I have questions. However, I want to go over the basics of CT2030 before getting into those questions.
“CT2030 will result in nothing short of a transformation of the economy and quality of life in Connecticut. When residents are able to travel to and from at drastically quicker rates, families can thrive, employees are more productive, and businesses are able to grow and provide more opportunities.”
Overall, the main point of CT2030 seems to be enabling
people and business to move more quickly and more efficiently. Gov. Lamont aims
to achieve CT2030’s goals by addressing four main focus areas mentioned above:
highways, airports, mass transit, and ports.
Highways. The main thrust of CT2030’s highway plans appear to center significantly on I-84, I-91, and I-95. This makes sense, seeing as to it that multiple spots along each of these highways rank within the top 100 worst traffic bottlenecks in the United States. These three highways will be the focus of projects such as lane additions, exit enhancements, bridge improvements, and “user fee” installations (i.e. tolls).
Mass Transit. This portion of CT2030 focuses on public transportation in the forms of railways and buses. Again, the plans here are “all about less time commuting and more time with your family.” Railways would look forward to projects for straightening and upgrading tracks, replacing aging bridges, installing new signaling systems, and adding new cars and locomotives. Buses, in a much smaller endeavor, would receive upgrades providing consistency for users across the state’s bus system. These upgrades include fitting all bus stops with shelters for protection against bad weather and signs with information on operating routes, as well as providing real-time information updates via text message or phone app.
Airports. This seems to be one of the most underdeveloped aspects of CT2030. The two enhancements to Connecticut’s aviation sector are (1) connecting the Bradley International Airport to surrounding areas via direct railway lines, and (2) the development of a “fully functioning regional airport in South-Central CT.”
Ports. Connecticut’s four major ports and the associated maritime industry annually generate an estimated $11.2 billion. The projects for these ports are unique to each location. They include dredging to allow for larger ships and freighters to pass through more frequently and the implementation of a high-speed ferry system to provide services for commuters as well as tourists.
Now for some questions:
What about induced
demand? Congestion can’t always be solved by simply adding
more lanes, no matter how logical that solution would seem. And it does
make sense: remove the congestion by removing the bottleneck. However, this
reasonable answer runs full speed into the issue of induced demand. The phenomenon
of induced demand can be stated simply: “When you provide more of
something, or provide it for a cheaper price, people are more likely to use
it.” This means that increasing capacity does little to relieve busy roadways when
traffic acts as a “gas” and the “volume expands to fill the capacity.”
“Widening a highway is no more a solution to traffic than buying bigger pants is a solution to overeating.”
While some experts
argue that induced capacity doesn’t cause as much strife as people claim,
the potential is still something that should be taken into account. If CT2030
centers on reducing highway commute time through widening projects, there needs
to be at least some discussion addressing the possible negative impacts, such
as an increase in urban sprawl, carbon
emissions, and more.
What about pedestrian infrastructure? While CT2030 allocates approximately $21 billion to its various projects, only an estimated $52 million would be dedicated to the Community Connectivity Program (CCP), a “grant program for municipalities to make improvements to sidewalks” that “helps local communities make necessary improvements for pedestrians.” If my math is even close to correct – honestly, no promises – this amounts to less than half of a percent.
Admittedly, I’m using the term “pedestrian infrastructure” broadly
to include traffic calming and bicycle infrastructure in addition to
traditional pedestrian infrastructure while CT2030 narrows the scope of CCP
down to sidewalk projects. However, this doesn’t defeat the question of why so
little focus is dedicated to pedestrian infrastructure.
There are plenty of unanswered questions and unaddressed
concerns still surrounding CT2030. One major question mark is whether it will
actually be implemented. This is thanks to Gov. Lamont and state legislators
starring in leading roles opposite one another in a multi-season
drama. With this in mind, it will be interesting to see how and if
Connecticut moves forward with CT2030 or any rival transportation plans.
In 2015, Google’s parent, Alphabet, decided the time was
ripe for establishing a subsidiary in charge of
investing in “smart infrastructure” projects – from waste to transport and
energy. Its aim was specifically to implement such projects, transforming our
urban landscape into a realm of dynamic and connected infrastructure pieces.
Fast forward two years, and Sidewalk Labs had become embroiled in a smart city
project covering a somewhat derelict (but highly valuable) area of the Toronto
along the shores of Lake Ontario.
Already in 2001, the Canadian metropolis set up
the aptly named Waterfront Toronto (WT), a publicly-controlled corporation in
charge of revitalizing the whole Lake Ontario waterfront along the city. WT
then published early in 2017 a “Request
for Proposals,” looking for an
“investment and funding partner” for what would become known as the Quayside
project. By the end of the year, the Alphabet subsidiary was chosen by WT.
It is important to note that this project was
initially thought as a real estate one, and the desired innovation was to be
found in building materials and carbon neutrality, while achieving certain
goals in terms of social housing. There was no express desire for a model
“smart city” of any sort, although the document does mention the usage of
“smart technologies,” but always in the context of reducing building costs and
improving the carbon footprint.
And then came Sidewalk Labs’ detailed proposal.
The visuals are neat; tellingly, there is not a
single electronic device to be found in those
pictures (is that one man on his cellphone?!) The words, however, tell
another story. Carbon footprint and costs of building take a second seat to
(personal) data processing: “Sidewalk expects Quayside to become the most
measurable community in the world,” as stated in their winning proposal. One wonders whether the drafters of
the proposal sincerely thought that, in this day an age, such a statement would
fly with the public opinion.
Critics of the project (who have since coalesced
in the #BlockSidewalk movement) used the opportunity to dig deeper into WT itself, highlighting
governance issues and the top-down
character of the original Request for Proposals, beyond the plethora of data
privacy questions (if not problems) the Sidewalk Labs proposal raised. In
response, Sidewalk Labs deployed a vast campaign of public relations, whose success is far from guaranteed: they have
“upgraded” their project, aiming
for a bigger plot of land and even a new light rail plan (funded mostly on
public money). At the time of this writing, WT has
yet to make its final decision whether to retain the
project of the Alphabet’s subsidiary.
What lessons can we draw from this Toronto experience? “Smart city” projects are bound to become more commonplace, and while this one was not meant as such, some will be more straightforward in their aims. First, we should question the necessity of connecting every single thing and person. It matters to have in mind the social objectives of a given project, such as carbon footprint or building costs reduction. Collection of personal data can thus be articulated around and in function of those objectives, rather than as an end in itself. Connecting the park bench may be fancy, but for what purpose? More down to earth, the same question can be asked of street lights.
As Christof Spieler reminds us in a recent tweet thread, certain municipal governments may be approached with “free” turnkey projects of connected infrastructure, in exchange (oh wait, it’s not free?) of both data and integration of the developer’s pre-existing systems into that infrastructure. Think of advertisements, and all the other possible monetization avenues… As Spieler points out, monetized smart infrastructure may come at a heavy social cost.
Beyond that, one may wonder – who do we want as developers of such projects? Do we need the Sidewalk Labs of this world to realize the post-industrial heaven shown in the visuals of the Proposal? How will multinational data crunchers with an ominous track record make our cities smarter? The burden of proof is on them.
In my previous posts, I have written a lot about city
design and integrating
emerging forms of transit, primarily automated vehicles, into the
transportation landscape of a city. I am spending this summer in Washington,
DC, and am getting an up-close look at this city’s transit options. I left my
car behind for the summer, so for the first time in years, I am entirely
reliant on public transportation, ridesharing apps, and my own feet to navigate
the city. In the process, I have learned a few things that I plan to explore in
more depth over the course of the summer. For now, here are the highlights:
1. Scooters do provide important transit for at least some people:
My house is about 0.6 miles from the bus line I take to work. So far, I have walked to that stop every morning. Along the way though, I see people riding by on scooters between the metro or bus station and their homes. It may yet be the case that scooters are a passing fad, and for now they appear – at least anecdotally – to have been adopted primarily by younger people. And to be sure, regulating them has been controversial in cities across the nation, which I plan to address in a coming post. For now though, they do show promise as a “last-mile” transit option for people who prefer not to drive.
2. A wide range of transit options improves access and reliability:
I ride the bus to and from work every day. When I want to explore the city on weekends, I take the metro downtown. I was running late to meet a friend the other day, and got an Uber. Others use scooters or the city’s bike-share program to get where they need to go. All of these options will work better or worse for different people, and for different purposes. All of them operating together can create a more functional, accessible transit system that serves the entire city.
3. Walkable neighborhoods ease the burden on a city’s transit system:
I live in a neighborhood with a grocery store, a Target, and a handful of bars and restaurants within a few blocks radius. As a consequence, I can walk just about everywhere I have to go except my office. Later this summer, I plan to explore ways in which cities can encourage development of walkable neighborhoods, thus easing the burden on overtaxed public transit systems and reducing the use of personal cars in the long run.
4. Affordable housing is directly linked to transit equity:
Perhaps this goes without saying, but a good, comprehensive transit network within a city does little good for the people who cannot afford to live in that city. This week, I’ve spoken with a couple people in my office who live an hour outside the city because it’s more affordable than living here. They drive to the farthest out metro stations, park there then ride into the city. To be sure, this still reduces congestion within the city. But good, reliable public transit is primarily important for the quality of life, cost savings, and environmental benefits that come with reduced use of personal automobiles and shorter commutes. People who have to commute a long way to even get to the public transit system in the city where they work are largely left out of those benefits.
All the way back in December, I wrote about how various companies, including Amazon (in partnership with Toyota), Postmates, Domino’s and Kroger were all working on using CAVs and drones to deliver goods to consumers. Since then there have been a number of news stories on similar projects across the globe, which deserve some attention, as you’ll see in this, the first of three posts:
On the Ground
In my December post I talked about Postmates’ testing of
delivery robots that could bring products directly to your door. This winter
similar ‘bots were deployed on the campuses of the University
of the Pacific (sponsored by PepsiCo), and George
Mason University (via start-up Starship Technologies and food-services
giant Sodexo). College campuses, which tend to feature greater walkability and
an always snack-craving populace, seem to be the perfect testing ground for
such systems. And the robots seem to have made a difference in the eating
habits, at least at George Mason – with an additional 1,500 breakfast orders
being delivered via robot. This may be due to the fact the robots were
integrated into the campus meal plan, meaning students weren’t just able to order
snacks, but could order full meals and pay for them via their meal plan.
While these delivery services may be seen as saviors to hung-over college students in need of a bacon, egg, and cheese sandwich, the expansion of such programs does raise issues. Just as ridesharing has changed the way cities have to manage curb space, delivery ‘bots raise questions of sidewalk management. Just how much of public space should we cede to commercial use? How will the ‘bots be programmed to “share the road” with pedestrians. Of course, that may not be as big of an issue in more sprawling American cites that don’t have the same density of foot traffic. They’ll also have to content with being messed with by humans, as was the case in this video, where a ‘bot’s cameras were intentionally covered in snow (there is a happy ending, as seen in the footage – after a good Samaritan cleaned off the camera the ‘bot continues on its way, after saying “thank you!” to its’ human helper). In an attempt to get ahead of these issues San Francisco banned sidewalk delivery ‘bots in 2017, and has only slowly opened up room for testing. Will other cities follow suit? Or will they open the floodgates? Currently, the California DMV is considering new rules on delivery ‘bots and car-sized autonomous delivery vehicles, so look for a follow-up blog once those are out.
Given my continued interest in data
collection and privacy,
(an interest echoed in more recent blog posts by Kevin – available here,
I’d be remiss to not flag those issues here. (those issues also come up in the
context of aerial deliveries, discussed in our next post). Not only would
sidewalk based delivery ‘bots collect data on the items you order and when,
they could potentially collect data about your home or its surrounding environment
(think back to when Google was caught collecting
wi-fi data with its’ Street View cars).
This fall we’ve spent a fair amount of time talking about how connected and automated vehicles (CAVs) will change the structure of our cities, from the curb, to public transit, and beyond. In my last post before the holidays, I want to take a look at how CAVs could change the way goods are transported and delivered within cities. While they probably won’t reach Santa-levels of delivery efficiency, CAVs may help make last-mile deliveries more efficient (and could help fill the current shortage of truck drivers in the US, but that’s a subject for another day).
CAVs are already being tested as delivery vehicles by companies like Domino’s and Kroger, while earlier this year Toyota announced delivery partnerships with Amazon and Pizza Hut, and Waymo’s CEO recently highlighted it as an area of opportunity. This week the New York Times profiled Nuro, the start-up working with Kroger to test robotic delivery cars in Scottsdale, Ariz. Nuro’s vehicles are designed in-house, and look like “toasters-on-wheels.” Currently they followed everywhere they go by human safety drivers in conventionally driven “shadow car,” since the vehicles are still in testing. When the vehicle stops for a delivery, customers enter a PIN code into a small touch pad to open a compartment containing their order. The current charge for same-day delivery using the system is around $6. Ford has also flagged the delivery market as an area they’d like to explore, citing projections that, by 2026, the last-mile delivery market for CAVs will hit $130 billion.
But the roads are not the only path automated vehicles may soon tread in their mission to bring you your takeout order. A number of companies, including Postmates, are working on delivery robots that will cruse down the sidewalk and roll right up to your door. Last year I even personally witnessed Postmates’ bot rolling along the streets of Washington. As exciting as it would be to have R2-D2’s cousin deposit an order of egg rolls on your doorstep, the deployment of delivery bots raises an interesting question of how much space we’re willing to give up to automated devices. The sidewalk is a human dominated space, and, especially in cities, is already busy with foot traffic. Will people be willing to cede some of this space to a robot? Yet another question that city regulators and individual citizens will be forced to answer as automation makes greater inroads to our daily lives.
P.S. – Last week a delivery robot caught
fire in Berkeley, leading some locals to build a memorial
in its honor.