What does the Trump Administration have in store for the development of autonomous vehicles and smart roads?
With the administration’s ambitious infrastructure plan still far from finalized, Hilary Rowen, a partner in the San Francisco office of Sedgwick LLP, whose practice is dedicated to insurance regulatory issues, offered some insight into what developers of self-driving cars and the insurance community can expect.
Rowen, who has testified at numerous regulatory and public hearings on autonomous vehicles, spoke with Insurance Journal on the topic.
This has been edited for clarity and brevity.
Insurance Journal: What, if any, impact will the new administration have on the development and roll out of autonomous vehicles?
Rowen: Perhaps the most intriguing and potentially far-reaching implication of the new administration is the infrastructure funding, if it is actually approved by Congress, which could lead to the construction, at least of prototype, SmartRoads.
IJ: Can you explain SmartRoads?
Rowen: SmartRoads are roads with embedded technology that allows the vehicle to actually, actively interact with the roadway. In other words, unlike the current generation of autonomous prototype vehicles, which effectively used LIDAR (Light Detection and Ranging) and radar, and visual light cameras to sense their environment – much as analogous to the way that a human being uses their eyes, and to a certain extent, their ears to sense their environment – SmartRoad technology allows the vehicle to actually ping and interact with a roadway, usually, at least initially, contemplated to be a freeway.
The implication of this is that it could allow autonomous vehicles, both cars and trucks, to platoon in very close formation. This would allow basically a de facto increase in road capacity in that platooning vehicles can travel in much closer formation, thereby effectively increasing road capacity without building or expanding existing freeways.
IJ: Now most of the players in the development of autonomous vehicles seem to be happy with the Obama administration, to my knowledge. What do you think they may feel about the Trump administration?
Rowen: I think that, at least, the initial indications is, that they will also be happy with, at least, the new Secretary of Transportation (Elaine Chao), who, in her confirmation hearing, also expressed support for facilitating autonomous vehicles. However, the proof of the pudding is in the eating.
As yet, the new Department of Transportation staff and secretary have not taken any public steps with respect to SmartRoads, with respect to infrastructure, or with respect to any revisions to the guidance promulgated by the Obama administration last fall, (which) basically gave effectively a flexible and accommodating approach to the development of technology, much less rigid than the traditional rule-making approach.
IJ: What about state legislation and regulations? Do you think most states will be ahead or behind where the federal government will be on all this?
Rowen: I think there is potential for tension between the federal government and the states. Specifically, there is at least some reasonable likelihood that states, in the guise of regulating the safe use of autonomous vehicles on their roads, may impinge or, at least be perceived by the federal government as impinging upon, the federal government jurisdiction over auto safety.
Historically, the federal government regulates the safety features of vehicles as they are manufactured. The states regulate the safe use of their roads. That has been for the last 60 plus years, a pretty harmonious relationship. Basically, when I went to look, the last time the U.S. Supreme Court addressed this issue was back in the 1950’s, the Navajo Freight Line Decision. This long-standing (decision) has the potential to be disrupted if the states essentially seek to impose more onerous restrictions on self-driving cars than the federal government wants to impose.
IJ: Tell us about the Navajo Decision.
Rowen: Certainly, it is actually, as many of your readers, or listeners may know, one of those classic first-year law school decisions. It involves, I believe it was Illinois statutes that required that trucks passing through Illinois to have curved mud flaps. Whereas, the national standard, and even the requirement in several states that had legislated, was for flat mud flaps.
The Supreme Court said basically that there was no federal mud flap standard. Nevertheless, the Supreme Court found that Illinois was unduly burdening interstate commerce by basically imposing a non-industry standard out of step with anyone else, inconsistent with other state mud flap requirements that basically would require trucks to stop at the border and change their mud flaps.
Illinois had attempted to justify its imposition, its statute regarding the curved mud flaps, on the grounds that curved mud flaps were safer than flat mud flaps. It was a state imposition of a safety standard the interfered with interstate commerce. Clearly, having to stop and change your mud flaps is an interference with interstate commerce.
The most recent, at least Supreme Court promulgation, that I’ve run across, could be roughly analogous to what would happen if a state imposed restrictions on smart cars, self-driving cars, that would cause a car to hit a state border, and then have to stop, or automatically have its software stop it, because it could not legally venture across the state line.
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