Self-driving cars are setting the stage for regulatory battle between feds and the states
Anyone who has spent time waiting at a DMV already knows that states generally are the face of vehicle regulation. They issue driver’s licenses and register vehicles, in addition to other duties like setting standards for insurance and liability. But when it comes to matters like vehicle design, safety and performance, we historically have deferred to the federal government.
There are a host of reasons for this, but the most obvious is right in the U.S. Constitution – the federal government is responsible for interstate commerce. To avoid widely divergent and unworkable standards that would stymie carmakers’ ability to conduct business over state lines, the U.S. Transportation Department sets the rules, including for the coming wave of autonomous vehicles.
Given that federal oversight is the status quo, states lack the regulatory infrastructure—the funding, knowledge base and experience—to oversee issues like vehicle safety competently. But that utter lack of capacity hasn’t stopped some states from angling for new powers to oversee the development and deployment of self-driving cars.
California is proving particularly eager to stretch its oversight authority through rules that would let state regulators deem self-driving cars unsafe, without any external checks or formalized process. This means the California DMV could, at any time and for any reason, yank certain autonomous vehicles from the road for failing to adhere to arbitrary and literally unknowable standards of safety.
States like California have been able to assert this authority, in part, because the federal government’s only guidance thus far has been nonbinding. There are no federal motor vehicle safety standards (FMVSS) specifically for self-driving cars. But that doesn’t mean the technology is being developed without oversight or in a vacuum. Except where they are explicitly exempted, current safety standards for traditional vehicles also apply to autonomous vehicles under development. Furthermore, there’s a dialogue underway between AV developers and the National Highway Traffic Safety Administration, with significant public scrutiny.
Thus, when states wade in to set their own design, safety and performance standards, it serves to complicate and confuse the direction provided by federal regulators. Skeptics of the technology and state lawmakers who want to be seen as “doing something” insist on hurdles to deployment as a way to slow autonomous vehicles’ development. States like California want to resist federal preemption because they do not like the substance of the federal government’s approach. But it’s worth noting that, so far, that approach is working. Tesla’s autopilot mode is the largest deployed semi-autonomous feature and it has already reduced crashes by 40 percent.
To avoid delays and confusion caused by well-meaning states striving to exceed their regulatory competence, Congress knows that it needs to act. Sens. John Thune, R-S.D, and Gary Peters, D-Mich., recently issued a statement of principles outlining what their self-driving vehicle legislation will look like, while the House Energy and Commerce Committee has circulated a draft of concrete bill ideas. The legislation taking shape in both chambers emphasizes some form of preemption as a key part of our federal framework.
But keeping states in line and on track will prove a challenge even with federal preemption in place. The intentional misuse of state authorities like registration to control the design, safety, and performance of self-driving cars is more than a theoretical threat. That’s a concern that needs to be addressed directly.
Until we have robust preemption, any of the roughly 7,300 state legislators across the country, to say nothing of the countless state bureaucrats, could change the course of self-driving history. It probably wouldn’t be for the better.
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