Could AV START actually be a speed bump for autonomous vehicle innovation?

by on December 6, 2018 · 0 comments

Autonomous vehicles are quickly becoming a reality. Waymo just launched a driverless taxi service in Arizona. Part of GM’s cuts were based on a decision to refocus their efforts around autonomous vehicle technology. Tesla seems to repeatedly be promising more and more features that take us closer than ever to a self-driving future. Much of this progress has been supported by the light touch approach that has been taken by both state and federal regulators up to this point. This approach has allowed the technology to rapidly develop, and the potential impact of federal legislation that might detour this progress should be cautiously considered.

For over a year, the Senate has considered passing federal legislation for autonomous vehicle technology, the AV START Act, after similar legislation already passed the House of Representatives. This bill would clarify the appropriate roles for state and federal authorities and preempting some state actions when it comes to regulating autonomous vehicles and will hopefully end some of the patchwork problems that have emerged. While federal legislation regarding preemption may be necessary for autonomous vehicles to truly revolutionize transportation, other parts of the bill could create increased regulatory burdens that actually add speed bumps on the path this life-saving innovation.

94% of auto accidents  are caused by human error and over 40,000 Americans died in car accidents last year alone.  Widespread adoption of autonomous vehicle technology can reduce traffic accidents by up to 90% and potentially save thousands of lives. With this in mind the Department of Transportation (DoT) and many states have encouraged the development of this life saving technology through the use of “soft law.” In the last two versions of its guidance on autonomous vehicles, DoT has taken a flexible approach rather than issuing top down restrictions that could hinder innovation. This approach is focused on the voluntary adoption of principles that can be quickly adapted to factor in developments in technological process far more easily than legislation or traditional rule-making that assume a certain path or favor a particular technology.

36 states and the District of Columbia have enacted legislation or issued executive orders regarding autonomous vehicles. Many states have taken the lead in using adaptive policy frameworks to promote an innovative approach in transportation to solve both the concerns of congestion and improve safety. In general, these laws have encouraged testing and innovation, but now given the variety in these policies, issues are starting to emerge that could limit future innovation. Innovators seeking to create vehicles that can travel across state lines must negotiate compliance with many different and conflicting policies. In fact, Audi refused to deploy its most technologically advanced driver assistance system because of the lack of clarity and uncertain legality associated with the current regulatory structure.

Federal legislation could answer the legal and regulatory questions that emerge when states have different policy approaches to this new technology. AV START Act establishes that the DoT remains the authority on federal safety standards including those for these new technologies and that it should continue to lead the way on a variety of policy questions related to autonomous vehicles. It also establishes that states retain traditional control over issues such as insurance and liability when it comes to autonomous vehicles. This clarification would help solve the patchwork issues that have started to emerge and such preemption may make for a smoother ride into an autonomous future.

Some of the requirements added by the bill could undermine the existing soft law approach that has allowed this area of innovation to flourish. For example, this bill requires rulemaking and regulation regarding testing and reporting for level 2 autonomy like is used in Tesla’s Autopilot and GM’s Super Cruise which are already available to consumers. Such a requirement would increase the burdens on innovators as well as possibly delaying the wider spread deployment of such technologies as companies seek to update their compliance and may need to make changes to insure they are meeting new reporting requirements. Similarly, the bill requires the DoT to engage in formal rulemaking on a variety of issues from consumer education about autonomous capabilities to child safety alerts for both autonomous and non-autonomous vehicles. Requiring formal rulemaking and mandating reports in the space particularly for existing, deployed technology could undermine the success previously brought about by the soft law approach could be a bump in the road on the way to a safer, driverless future.

At the same time, the current version of AV START encourages more soft law actions from the DoT. This includes a variety of delegations from Congress for working groups, studies, and advisory boards on issues such as accessibility, consumer education, and cybersecurity. Unlike the requirements for reporting and rulemaking, such approaches encourage regulators and entrepreneurs to develop solutions together and are not as likely to have a negative impact on innovation. So far, on both a state and federal level this regulatory approach has shown that it can remove the roadblocks to implementing this lifesaving technology while still providing a policy framework to address issues such as safety.

As discussed in my forthcoming paper with Ryan Hagemann and Adam Thierer, one of the reasons for the growth of soft law has been Congress’s failure to act when it comes to technology policy issues. While the AV START Act may show that this is not always the case, it also reveals why even when Congress does act, soft law’s flexible and adaptable approach may be preferable for rapidly evolving technologies. There are important roles for legislation in preventing regulatory or state actions from driving this technology off the road, but changing lanes from soft law to hard law could slow down rather speed up this important innovation.

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