April 5, 2019

This week, Eno released Beyond Speculation 2.0, an automated vehicle (AV) policy plan for federal, state, and local policymakers. An update to a paper released in 2017, this report covers the current state of affairs for AVs and provides some new and revised recommendations for the industry and elected officials. What was initially thought to be a straightforward effort to revise some dates and events turned out to be a much more nuanced effort reflecting the evolving school of thought for appropriate government regulations regarding AVs.

Eno has been following the development of automated vehicle policy closely for the past seven years. Our first paper, published in 2013, was one of the first that posed questions about how policymakers should prepare for the advent of AVs. Originally, we, along with many others in transportation, envisioned an upending of the federalist structure that governs surface transportation. Policy topics that are reserved for states and localities, such as roadway control, liability, and licensing, would need to become the federal government in order to have a consistent environment for operation and economies of scale. As AV technology was advancing rapidly, the scourge of highway deaths would soon be curtailed and congestion would be dramatically reduced.

It turned out that new roles for federal, state, and local policymakers was largely unnecessary. In Eno’s 2017 Beyond Speculation, we concluded that retaining the role of vehicle safety regulator at the federal level, and leaving roadway management, design, liability, licensing, and planning up to the states made more sense. But the need to have a federal framework that was in place before the AV technology became widespread was a cornerstone of the policy approach. Although imperfect, the AV START bill in the 114^th Congress aimed in part to codify that approach.

When updating Eno’s 2017 report, we found that several factors have further changed the general outlook and thinking for AV policy.

Renewed emphasis on safety

Catalyzed in part by the fatal Uber crash in March 2018, the AV industry has refocused its efforts on safety. What once seemed like a race to deploy first, the consistent goal now is to be the AV developer with the safest technology. Events over the past year have made clear that, despite the fact that human drivers kill tens of thousands on American roadways, the public has zero tolerance for AV safety issues. Any significant AV crash most likely makes international headlines. AV developers, partly to protect their brand reputations, delay rollouts and timelines to ensure that their technology is fully prepared.

Fear of negative impacts

AV proponents and experts, including Eno in its past papers, have touted the potential benefits of AVs to different communities. Research papers modeled and predicted huge reductions in fatalities, massive increases in roadway capacity, and widespread sharing. Cities and states jumped at the opportunity to allow technological innovation to solve the problems that transportation agencies have been working on for decades. But the continued setback in deployment timelines, coupled with other transportation technologies not living up to the hype, cooled the initial optimism. Reticence from communities towards allowing AVs to test or deploy on the roads has grown dramatically in the past two years.

Wait and see approach

Federal and state frameworks for liability were supposed to help smooth deployment of AVs, setting clear lines between who was responsible in the case of an AV crash. However, partly due to the complexities uncovered in testing, most stakeholders now feel that the current legal structure and case law will be the best way to determine liability. The wait-and-see approach is not ideal, but it is also a recognition that each crash is unique, and the American legal system has long been designed to work in this way.

The recommendations in Beyond Speculation 2.0 gives plenty for state and federal policymakers to do. Federal legislation for AVs looks unlikely in the current political climate, but federal rulemaking and state level policymaking will be very active in the coming years. Unanswered questions about appropriate regulation for cyber security and data privacy might be resolved in pending federal legislation aimed at the technology sector at large. Eno will continue to watch the AV policy arena closely and report accordingly.