Authored Articles & Publications Mar 16, 2018

Roads of the Future Today

BB&K Attorney Gregory Rodriguez Writes on the Latest Legal and Regulatory Considerations for Autonomous Vehicles in PublicCEO

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By Gregory Rodriguez

Across the nation, companies from Waymo and Uber to General Motors, Ford and Audi are putting self-driving vehicles to real-world road tests – with more than 40 companies testing on California roads alone.

Are today’s roads ready for tomorrow’s technology? The answer is “no,” and it will take a collaborative, multi-discipline approach to get there.

Existing passenger and commercial vehicle laws and regulations at the local, state and federal levels aren’t accommodating for driverless cars — mainly because they were developed for human drivers, not computers, having full operational control of vehicles.

Given that autonomous vehicles will disrupt transportation in communities in fundamental ways — impacting everything from infrastructure to public safety to labor — their deployment remains, and will continue to be, one of the hottest topics in transportation.

Autonomous vehicles hold promise and challenges that present unique issues for communities: How do you plan for a technology on the road today with long-term operational impacts that are far from known?

To start, local governments can “innovate within” and take a proactive, multi-discipline approach to deploy autonomous vehicles and other technologies. By doing so, communities will better understand and mitigate the potential legal, economic and social issues that will arise with autonomous vehicle pilot projects.
Getting the right people from across a spectrum of fields — law, transportation, technology, planning, engineering and law enforcement to name a few — to the of table now will help agencies keep up with the pace of innovation while ensuring new technologies operate safely and effectively in a community.

Being Proactive Can Avoid an Unproductive Place: Court
Fewer crashes, enhanced mobility, fuel efficiency and potentially less congestion are among the expected benefits offered by driverless vehicles. But, as self-driving cars increase on roadways, collisions with standard vehicles, motorcycles, bicycles and pedestrians — as well as lawsuits — will inevitably rise.

General Motors was recently hit with one of the first autonomous vehicle lawsuits (Nilsson v. General Motors LLC). Filed Jan. 22 in the U.S. District Court for the Northern District of California, the negligence lawsuit was filed against General Motors by a motorcyclist involved in a collision with a GM Cruise Bolt with autonomous capabilities. The accident on a San Francisco street occurred after the vehicle aborted a lane change.

The lawsuit’s result could have unintended consequences as it raises an important question for cities allowing the testing of autonomous vehicles: How does an accident involving an autonomous vehicle on a public road affect a city’s liability and the design immunity it traditionally gets to claim?

Currently, California’s design immunity defense (Govt. Code Section 830.6) shields local governments from liability for injuries caused on roadways when certain factors have been met, such as the approval of a road design based on industry accepted standards.

With the National Highway Traffic Safety Administration having no established minimum safety standards for autonomous vehicles to date, it will be interesting to see how courts interpret this immunity in future cases involving autonomous vehicle accidents. Also, key to proving fault in the GM case could be the vehicle’s collected data. It remains to be seen whether this information will be permitted as evidence, however, due to its proprietary and confidential nature.
Having a policy framework for addressing new innovative pilot projects can be beneficial to mitigate risks and navigate the regulatory uncertainty that new technologies bring.

Data: Understanding What and Why
Many are calling data the “secret sauce” to effective planning by helping communities make more informed decisions regarding future transportation infrastructure projects, including investments in new parking garages, transit lines and requirements for residential developments.

However, local governments need to understand what type of data they are asking for and be able to explain why they are asking for it. This will help negotiations on important data sharing agreements that are a critical component of any autonomous vehicle pilot project.

Further, getting the data is just the first step. Local governments need to ensure they have a plan for, and the resources to analyze, the data. Thus, budgeting around the storage and analysis of data is an important part of the “innovating within” that public agencies will need to undertake.

The Evolving Regulatory Landscape
From needed modifications to vehicle codes to federal safety regulations, pending public policy at the federal, state and local levels will play a critical role in the roll out of autonomous vehicles.

Closely tracking policy changes and participating in comment periods will prove vital to an agency’s ability to proactively ensure its concerns and needs are included in any future rulemakings and legislation across all levels of government.

Autonomous vehicles without a driver were just given the green light to operate on California roads through rules that become effective April 2.

“This is a major step forward for autonomous technology in California,” DMV Director Jean Shiomoto said in a press release. “Safety is our top concern and we are ready to begin working with manufacturers that are prepared to test fully driverless vehicles in California.”

Widespread testing is also occurring in Arizona through a 2015 Executive Order that was recently updated to adapt to technological advances and include a reference to “prioritizing public safety.” Arizona has embraced the enhanced testing of Level 4 autonomous vehicles — cars without drivers — through fleet subscription services that provide rides to citizens.

At the federal level, the U.S. House of Representatives has passed H.R. 3388, the Safely Ensuring Lives Future Deployment and Research In Vehicle Evolution (SELF DRIVE) Act.

In the Senate, the Senate Committee on Commerce, Science, and Technology passed the AV START Act, S. 1885, but final passage was stalled as at least three senators have placed holds on the legislation over concerns related to the new and not-fully-understood implications of this technology, including consumer safety, privacy and cybersecurity.

Pressure continues by the private sector to pass such legislation, including language that preempts local and state control over the regulation of the “performance” of automated vehicles.

The U.S. Department of Transportation is expected to release the third version of voluntary guidelines this summer to accelerate the rollout of autonomous vehicles.

Additionally, the NHTSA, Federal Transit Administration and Federal Highway Administration are seeking the public’s input on autonomous driving systems and autonomous bus integration into public transportation systems. Comment periods closed in March after a public listening session were also held by the U.S. Department of Transportation.

With few current planning tools and traffic models, more testing is needed and regulation at all levels will need to be modernized to promote innovation, but also address public safety. Similar to carefully considering the goals of any regulation, the purpose of moving forward with any preemption should also be well thought through.

As an alternative to preemption, there could be collaborative focus on more testing among various vehicles types (i.e. passenger, shuttles and buses) with anonymized testing data being shared and used to refine policies, regulations and infrastructure needs. A too heavy handed use of preemption at this early stage of development may limit the full realization of the societal benefits that autonomous vehicles offer.

Looking down the road, the opportunities for enhanced mobility are exciting. But, it will be crucial for local governments to get various stakeholders collaboratively involved early on in the planning process.

Without local, regional, state and federal coordination and collaboration between the public and private sector, the safe and effective incorporation of autonomous vehicles into our communities and the long-term success of this technology may not be realized, or needlessly delayed.

This article was originally published March 16, 2018 in PublicCEO. Republished with permission.

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