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TRANSPORTATION LAW

Disrupting Transportation Change

A look at norms and legal standards.

By Thomas J. Bamonte


Just as other sectors of our economy have transitioned from the machine era to the digital era, our transportation system has entered a period of rapid change. Not unexpectedly, this transition is being challenged by existing norms and legal standards.

 

Ripe for Change
Our transportation system is filled with inefficiencies that make for business opportunities. We use large, heavy, expensive, and energy inefficient vehicles that sit idle 95 percent of the time1 and have many unfilled seats to move around even though most of our trips are 4 miles or less.2 Due to limits on human reaction time, we have large spaces on our highways between vehicles, and the speeds and vehicle carrying capacity of our highways haven’t changed for over a half-century. In urban regions, 20 to 50 percent of our real estate is used for highway and parking infrastructure, a major opportunity cost.3

Roughly 40,000 annual fatalities and many more serious injuries on U.S. highways have a direct economic impact of approximately $250 billion annually.4 Air pollution and the sedentary lifestyle associated with our current transportation system impose additional health care costs. The transportation sector is now the largest source of greenhouse gases in the U.S.5 Most highways are unpriced. Only a small percentage of those that are tolled adjust prices to balance supply and demand to ensure free traffic flow. Congestion and inefficient roadway use are an inevitable result as demand for “free” roads outstrips supply of expensive roadway infrastructure.

A set of transportation innovators is trying to build viable businesses by squeezing these inefficiencies out of the transportation system. Inevitably, they face major challenges from existing norms and legal standards. The race to innovate in the transportation sector is a global one as cities, states, and nations jockey to build transportation systems and industries around new technologies and business practices. Getting legal standards and norms right will be a competitive advantage.

 

Vehicle Automation
Vehicle automation promises major safety and efficiency gains. Automating vehicles may reduce crashes and allow vehicles to “platoon” closer together, increasing highway capacity. There is no federal law specific to automated vehicles, or AVs. There are well-documented conflicts between existing federal motor safety laws and the realities of AVs (e.g., no steering wheel).6 The U.S. Department of Transportation has taken a light regulatory touch in the absence of congressional action, adopting a stance of technology platform neutrality and relying on manufacturer self-certification on safety.7 The current administration has not advanced a USDOT notice of proposed rulemaking mandating a vehicle-to-vehicle communication system that would connect otherwise autonomous vehicles.8

At the state level there is a patchwork of laws and executive orders.9 The Texas AV law is permissive and has been favorably received by AV developers.10 Texas cities like Arlington and Frisco have been at the forefront of AV deployments to date, but Texas law preempts local regulation of AVs. States will have to update vehicle licensing and registration and many other laws to account for AVs.

This regulatory mishmash has prompted at least one automaker to delay plans to roll out semi-AVs in the U.S. Many automakers were supportive of federal legislation that failed last session.11 The risk of stifling innovation through regulation may prompt continuation of the status quo, however, until either wide AV deployment or additional AV test vehicle crashes force the legislative hand.

The main driver of vehicle automation, however, will be human demand for such vehicles. There is much general public skepticism about AVs and much talk about the norm of manual driving; yet, actual users of AVs seem to like them. Humans have relinquished personal control over other conveyances, such as railroads, aircraft, and buses, so there is precedent for their acceptance of highway automation.

 

Electrification
The shift to electric vehicles, or EVs, will deliver significant operational and environmental benefits. Electric powertrains are versatile. We can expect new vehicle types to emerge, such as one and two person “pods,” which allow for rightsizing vehicles to one’s mobility need. It may no longer be necessary to use a vehicle designed to hold five or more people to transport a single person. Plenty of legal issues are associated with the transition to EVs. Texas restrictions on vehicle sales directly from the manufacturer create a barrier to new vehicle entrants.12 Texas laws governing vehicles, sidewalks, and roadways will have to be adapted to accommodate new EV types such as delivery robots, autocycles, scooters, and pods. The effectiveness of the gas tax as a transportation-funding source will diminish as EVs become a larger share of our vehicle fleet.

 

Shared Mobility
Vehicle automation and electrification will support fleets of shared vehicles designed to deliver transportation at a lower cost than today’s privately owned vehicles. This will increase demand, especially as today’s non-drivers access AVs. While shared mobility services like Uber and Lyft for cars and Uber, Lyft, Bird, and Lime for electric scooters have made significant inroads, there is a strong current norm in favor of personally owned vehicles. Whether that norm can change and highway travel becomes as shared as air travel has important implications.

A major shift from private vehicles that are parked most of the time to shared vehicles that are in constant operation most of the day will reduce demand for parking, freeing up land not only for other purposes but also reducing municipal parking revenue. Curb space regulation will become important as cities establish and price pickup and drop off zones. The much-publicized events giving rise to Texas’ shared mobility services law in the last legislative session may be a preview of struggles to come.13

 

Safety
Highway safety is a result of choices made among interests such as motorist convenience and protecting public health. Compared to other developed countries, the U.S. has opted for more convenience and less public health—our highway fatality rates are double or more the rates in other countries.14

“Smart” vehicles and roadway equipment provide new tools to better enforce traffic laws. Driving behaviors can be tracked with great accuracy. Highway speeds can be discerned in real time from vehicles and roadside equipment. These and other measures could improve highway safety.15 Yet, the long battle over red-light cameras suggests that realizing highway safety improvements from emerging technologies is no sure thing. Likewise, Texas law stands in the way of cities lowering speeds on their streets.16 Slower speeds protect vulnerable road users and is a key safety strategy, especially as average vehicle weight and size increase. Data privacy and cybersecurity issues loom, as they do in other industries.

 

Pricing
Pricing is the most effective tool for reducing traffic congestion by balancing supply and demand, just as pricing is effective in matching supply and demand in everything from electricity to eggplants. Yet, most of our roads are unpriced and much parking is free or below market, which means that there is no incentive for people to shift their travel out of peak periods, share rides, or take other forms of transportation. The result is congestion.

We try to build out of congestion, typically with more “free” roads. This additional unpriced capacity soon gets consumed. Even toll roads typically use fixed rather than variable prices, which results in people paying for the privilege of being stuck in congestion. Only the dynamically priced managed lanes in a few Texas cities give motorists the opportunity to pay to drive in nearly guaranteed free-flowing traffic. Mandated parking minimums imposed on new developments result in more parking availability, which encourages more driving. The current generation of transportation innovators, including Uber and Lyft, are in favor of roadway pricing to substantially reduce congestion, but there are major normative and legal barriers to pricing. Recent amendments to the Texas Constitution have restricted use of public funds to build priced roads.17 The Legislature has limited use of public-private partnerships to build roads priced to repay the private developer.18 There seems to be little public appetite for road pricing even given the congestion relief benefits and the savings from not having to build more “free” roads in a quixotic effort to solve congestion. Free or subsidized parking is considered by many to be a right. Deregulation of the public roadways may be a more daunting task than deregulation of the airline and telecommunications industries.

 

Conclusion
The evolution of our transportation system runs against the grain of many existing norms and legal structures. This is a common challenge associated with new technologies and business practices. Finding the right balance between innovation and continuity will be key if Texas is to keep up with other states and countries in the race to make major safety and operational improvements in the transportation sector.TBJ

 



Thomas BamonteTHOMAS J. BAMONTE
is senior program manager for automated vehicles at the North Central Texas Council of Governments, or NCTCOG, the metropolitan planning organization for Dallas-Fort Worth. At NCTCOG, he works on automated vehicle pilot programs, the data infrastructure for automated vehicles, and related transportation technology and planning issues. Before joining NCTCOG, Bamonte served in senior legal positions at the Chicago Transit Authority, the Illinois Tollway, and the North Texas Tollway Authority.

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