When automobiles first appeared on public roads in the early 20th century, there were few regulations—and lots of crashes. The powers that be had to determine how to safely integrate motor vehicles with horses, trolleys, and pedestrians sharing crowded city streets.
In the book The Law of Automobiles, published in 1906, author and attorney Xenophon P. Huddy helped policymakers by defining new concepts such as speeding and proper signaling. A section titled “Law Keeps Up with Improvement and Progress” described cars as “a new contrivance for transportation purposes,” and it sounds prescient when viewed against today’s quandary of how to regulate self-driving car technology and assimilate robo-taxis into existing traffic.
Jump forward a century to when Google in 2010 revealed it had covered more than 100,000 miles testing its early autonomous vehicles (AVs) in California, and there were no regulations against self-driving cars on public roads. As with the advent of cars decades ago, self-driving vehicles are rolling onto roadways as developers test the technology in the real world. In the process, they’re forcing a rewrite of existing road rules meant to apply to humans behind the wheel, not machines and computer code.
These archive pictures of New York’s Fifth Avenue taken 13 years apart are very similar but could not be more different. The Easter Parade of 1900 shows predominantly horses and carriages in the thoroughfare. In the picture taken in 1913, a horse and carriage has been overwhelmed by the throng in a new age of motorized transport.
- AV: Autonomous Vehicles
- NHTSA: National Highway Traffic Safety Administration
- DOT: Department of Transportation
- FMVSS: Federal Motor Vehicle Safety Standards
Driver and Car Voltron
The federal government generally sets regulations such as mandating safety equipment and testing crash-worthiness of new vehicles while states manage after-sale rules regarding registration, licensing, and safety inspection.
“The real issue with autonomous driving is you’re combining the driver and the car,” says Jim McPherson, a San Francisco-based attorney who has extensively studied self-driving regulations and is the founder and principal of SafeSelfDrive.org.
While the feds have lagged in setting AV regulations, several states have accelerated testing and deployment of the technology on public roads, though any federal law will ultimately supersede state statutes. Nevada was the first state to legalize the operation of autonomous vehicles in 2011, and Florida followed later the same year. Today, 22 states and Washington D.C. have passed legislation, and governors in 10 states have issued executive orders regulating AVs.
Google’s home state of California, a hub of AV technology, was one of the earliest to enact regulations. The tech giant regarded the state’s original law passed in 2012 as too restrictive because it called for, among other things, a human driver to always be behind the wheel and, later, vehicles to have a steering wheel and pedals. “California has a very restrictive approach to the deployment of AVs and the information they require,” says Grayson Brulte, co-founder and president of the consulting firm Brulte & Company and co-chair of the Beverly Hills, California-based Mayor’s Autonomous Vehicle Task Force.
- California, Arizona, and Florida are the big 3 in autonomous vehicle testing
- California was one of the first states to enact regulations
- California requires an autonomous vehicle permit; Florida and Arizona do not
- Nevada was first to legalize the operation of autonomous vehicles in 2011; Florida followed in the same year
- 10 states have issued executive orders to regulate autonomous vehicles
- In 2016 Florida expanded regulations to allow autonomous vehicles to operate without a driver
- Virginia wants to be the capital of autonomous vehicles
- Michigan followed Florida in 2016, allowing autonomous vehicles to operate without a driver
“California requires an AV permit, whereas states like Florida and Arizona do not,” Brulte adds. Google and others also took issue with California’s requirement that AV companies report all “disengagements” while testing, incidents in which a human had to take over, while Arizona and Florida don’t. This spring, new regulations went into effect in California that, among other things, allow an AV to operate without a person inside if remote operation is provided as a backup.
“They had no choice,” Brulte says of California relaxing its AV regulations. “Companies were moving large deployments of AVs out of the state. If you compare the disengagement reports from 2015 to 2017, you see a massive drop in number of miles driven in the state.”
States Seize Opportunity
California, Arizona, and Florida—what Brulte calls the “big three” of AV testing—and several other states are vying to become a destination for self-driving development programs and to benefit from the local economic boost they bring. In 2015 Arizona Governor Doug Ducey signed an executive order directing various agencies to “undertake any necessary steps to support the testing and operation of self-driving vehicles on public roads” in the state, while Florida expanded its regulation in 2016 to allow the operation of AVs without a person in the vehicle.
With its auto industry prowess and pride, Michigan has become a champion of self-driving technology, building two dedicated test facilities and passing a law in 2016 that allows AVs to operate without anyone inside. In Virginia, another state with liberal AV laws, former Governor Terry McAuliffe devoted the remainder of his term to turning the state into “the capital of automated vehicles.”
“Everyone is jumping on the bandwagon,” Brulte says. “By allowing the testing and deploying of AVs, they’re putting the groundwork in place so that when AV services are up and running, they’ll be two or three steps ahead.”
In addition to economic incentives, Florida State Senator Jeff Brandes of St. Petersburg sees testing and deploying the technology as a tool to prevent further traffic gridlock.
We have 20 million residents and 116 million tourists each year and what many would consider an anemic public transportation system,” Brandes says. “We’re having traffic challenges, and here’s a technology that wasn’t available 10 years ago that lets us leapfrog light rail.”
Feds Flail Away
While states are busy fast-tracking AV regulation, the federal government is stuck in the slow lane. Granted, the feds traditionally move at a slower pace, and changes in the executive branch—and a lack of leadership at the National Highway Traffic Safety Administration (NHTSA)—haven’t helped.
After years of AV developers lobbying for federal legislation to avoid a patchwork of state laws, the Obama administration laid policy groundwork in January 2016 with a series of voluntary AV guidelines, including submitting testing and deployment plans to the Department of Transportation (DOT). After power changed hands in D.C., the Trump administration and Congress remained idle on AV policy, except for a burst of momentum last fall that has since stalled.
In September 2017, Secretary of Transportation Elaine Chao unveiled an updated version of the original federal AV guidelines that removed some restrictions of the Obama-era policies. One significant change included telling AV developers they “do not need to wait to test or deploy their” technology on public roads.
Besides a few public statements by Chao, requests for comments from stakeholders, and an AV Summit in March, there’s largely been radio silence on the subject from the DOT. “They’re working on version 3.0 of the guidelines,” notes David Strickland, the former NHTSA administrator during the Obama administration who is now director of the Self-Driving Coalition for Safer Streets trade organization.
The Trump administration waited more than a year before naming an NHTSA administrator to head the agency tasked with instituting federal AV policy. Heidi King, who was appointed NHTSA deputy administrator in September, was nominated in April to fill the top position, although Strickland says leaving the leadership job unfilled for so long “makes things more difficult” in advancing AV policy.
Also in September, the U.S. House unanimously passed the SELF DRIVE Act, and later the same month the AV START Act was introduced in the Senate. At the time, there was hope the Senate bill would pass quickly and the bills would be reconciled and signed into law. But the AV START Act hit Capitol Hill gridlock after several senators blocked its passage, citing concerns about safety and job impact and lobbying by consumer groups and the trucking industry. With more pressing issues before Congress, Strickland doesn’t think the Senate “is at a point where the people who are opposed to the AV START Act are willing to relent.”
He added, “They probably haven’t changed their minds following the Uber [incident] in Arizona” in March that killed 49-year-old Elaine Herzberg as she walked her bike across the road and was hit by one of the ride-hailing company’s self-driving Volvos. Following the crash, Uber, Toyota, Nvidia, and others temporarily put the brakes on AV testing in Arizona and other states, and Governor Ducey pulled Uber’s testing permit in the state. The incident meant policymakers and a public already wary of self-driving technology were further spooked and are not likely to shift gears on AV technology any time soon.
Regulation Round Robin
Despite the Uber crash, several states are putting the pedal to the metal on AV testing—even if there isn’t a driver to push it or even a pedal at all. And although there’s general consensus among the self-driving car cognoscenti that federal regulation is needed to keep autonomous tech on track, some feel that letting states hash out policy could be a better path forward.
“The argument is that states need to get out of the way,” McPherson says. “The counter to that is there are states that have already rolled out regulations, and we should let that play out and see whether developers find them reasonable.” Adds Brandes: “I would prefer the states lead and the feds be a late adopter.”
But Strickland is concerned that if AV regulation is left to states, it would evolve “in a Balkanized environment and take a lot longer and be much more expensive. Federal regulation creates a level playing field and attains the benefits of AV technology in an efficient way with the highest level of safety.”
McPherson contends that states already oversee aspects of driver and vehicle safety testing and that these could be adapted to AVs. “You could have a minimum sight distance for AV sensors, just like you do for drivers,” he adds.
Strickland maintains that the federal government is better equipped to handle AV certification as well as crash investigation and data collection to ensure safety and consistency. “There’s no state that has the capacity to test a vehicle to the degree of the federal government,” he says. “States would have to build these processes from the ground up and frankly don’t have the resources to take that on. I don’t think asking states to be mini federal motor vehicle safety regulators is feasible.”
Brandes concurs with Strickland that overseeing crash investigation and data collection should be left to the federal government. “States are ill prepared to do the type of deep-dive investigation that would be required,” he says.
But he also wants states to retain rights to oversee AVs on local roads. “Early on, AVs will operate in a specific geofenced area,” he says. “You have to believe that those will be state-led, with some local discretion as well.”
In what McPherson views as an unprecedented move in motor vehicle legislation, the AV START Act would, if passed, pre-empt state laws regarding AVs. “The federal government could tell states, ‘While you only allow certain qualified drivers on your streets, now you have to allow robot cars that drive on their own or drive remotely.’ And there’s nothing states can do about it.”
You Will Be Assimilated
Like when cars first took to public roads—and some people sought to ban the newfangled contraptions for safety’s sake—politicians will eventually decide how to assimilate AVs into existing laws. “Once self-driving vehicles can travel across state lines, that will change everything,” Brulte says, and any federal laws will, of course, pre-empt most state regulations. But regardless of whether states, feds, or a combination of the two ultimately set rules for AVs, chances are you’ll see robo-cars legally riding next to you on the road soon.
Stymied by Outdated Standards
In addition to the usual Washington gridlock, autonomous vehicle technology has also been stymied by outdated Federal Motor Vehicle Safety Standards. The FMVSS specify legal requirements such as passenger-car design and performance, regulate auto safety systems, and are crafted with human drivers in mind, not machines. Automakers have found it hard enough to get NHTSA to approve the latest (and safest) headlight technology as part of the FMVSS, much less vehicles without a steering wheel and accelerator and brake pedals.
AV developers have found ways around the FMVSS. Speaking about Google’s first purpose-built self-driving car, the tiny Firefly, Seval Oz—former head of business development for Google’s self-driving car project—says, “Once the decision was made to assemble a new vehicle, the issue became more FMVSS compliance. This is why we deferred to a low-speed-compliant vehicle, which exempted it from requirements for high speed.”
But even with all its resources, Google quickly discovered that building cars in scale from scratch and only for low-speed purposes wasn’t feasible. And most automakers will want to leverage existing vehicle platforms to produce self-driving cars.
Although former NHTSA Administrator David Strickland notes that the FMVSS are designed to evolve over time, he acknowledges that for developers hoping to get AVs without a steering wheel or pedals approved for use on public roads, “You basically have to rewrite the whole standard, and that’s going to take a lot of effort and a lot of time. Instead of rewriting existing standards for an AV fleet, you could … create new standards.”
Strickland explains further: “As opposed to untying all the regulations to fit AVs into legacy requirements, you could take a blank sheet of paper and create an entirely new class of vehicles. That may be a better approach, but that the NHTSA’s call.”