AV

by Ashleigh Rhodes, Brooks Lindsay, Don Wang

As autonomous vehicles drive from fantasy to reality (and they’ve almost arrived), rules and regulations are needed to ensure this new technology is safely integrated into the country’s current transportation infrastructure. States have been wondering what they can regulate and what the federal government will preemptively regulate. In other words, what types of state autonomous-vehicle provisions will the federal government preempt (or invalidate) based on the Supremacy Clause, which holds that federal laws trup where they conflict with state laws? And, vice versa, what state provisions will survive after the federal government passes permanent AV regulations? The Uniform Law Commission (ULC) asked the University of Washington School of Law’s Technology Law and Policy Clinic to attempt to answer these questions. Below is a summary of our findings from our November, 2014 report to the ULC, The Risks of Federal Preemption of State Autonomous Vehicle Regulations. We are also working on detailed provisions recommendations to the ULC and draft legislation for Washington, all which heavily rely on our preemption conclusions below (stay tuned for these products and a blog post to follow).

Summary of Findings

The National Highway Traffic Safety Administration’s (NHTSA) statutory mandate to establish vehicle safety standards will likely preempt any safety regulations states adopt for autonomous vehicles, but states can expect to have authority in verifying the continued safe operation of used vehicles with after-market autonomous modifications. Furthermore, in its 2013 Preliminary Statement of Policy Concerning Automated Vehicles (Preliminary Statement), the NHTSA encouraged states to legislate and regulate in the areas of licensing, permitting, testing, and test-driver training as well as determine conditions for the operation of specific types of autonomous vehicles. The NHTSA could preempt state tort law if it conflicts with a significant regulatory objective, but it has shown little will to do so. Lastly, it is very important to note that federal authority to preempt certain state provisions does not necessarily diminish those provisions’ worth; they may provide critical interim value to states. On the other hand, such interim provisions may require a lot of work and political will for fleeting gains. The preemption question, therefore, is only the starting point for a larger judgment call by state legislators.

Analysis

The NHTSA was established in 1966 when Congress enacted the National Traffic and Motor Vehicle Safety Act (Safety Act), which sets out that the purpose and policy of the NHTSA is to “reduce traffic accidents and deaths and injuries resulting from traffic accidents.” To achieve this purpose, the NHTSA has the authority “to prescribe motor vehicle safety standards for motor vehicles and motor vehicle equipment in interstate commerce; and to carry out needed safety research and development.” In addition, the preemption provision of the Safety Act expressly states that when a federal standard is in effect, a state may only regulate the same aspect if its standard is identical to the federal standard.

A large portion of the Preliminary Statement is devoted to the NHTSA’s “Research Plan for Automated Vehicles.” Due to broad statutory definitions, all motor vehicle equipment is covered regardless of the type of technology used. Therefore, when the NHTSA completes its research in at least three to four years, it is likely to issue safety standards for vehicles originally manufactured as autonomous along with the individual equipment pieces that give the vehicle its autonomous capabilities.

Despite the NHTSA’s authority to establish guidelines applicable to after-market equipment, that authority diminishes after the first sale. Thus, it will likely continue to work with states to conduct inspections to ensure functionality in used vehicles of basic safety equipment and after-market autonomous modifications. Since it will take the NHTSA some time to complete its research into safety standards applicable to autonomous technology, its Preliminary Statement suggests basic interim principles for state laws. These include facilitating the “safe, simple, and timely” transition from self-driving mode to driver control and establishing data recording requirements to ensure safe operation of autonomous vehicles.

The Preliminary Statement specifically “recommended [eight broad] principles that States may wish to apply as part of their considerations for driverless vehicle operation, especially with respect to testing and licensing.” States can expect to fully control the permitting for test cars and drivers and the requirements for test-driver training programs. However, the NHTSA advised against states allowing autonomous vehicle operation for purposes other than testing. When autonomous vehicles have reached the level of sophistication needed for general driving purposes, states can expect to exert considerable control over long-term licensing or endorsement for consumer drivers, similar to the current scope of state highway-safety programs.

Notwithstanding the preemption provision, the Safety Act contains a common law liability clause, which stipulates that compliance with a federal standard created in accordance with the Safety Act “does not exempt a person from liability at common law [based on precedent established by previous state court rulings].” Supreme Court precedent established that this clause is only limited to express preemptions, but it does not prohibit conflict preemptions. In Geier v. Am. Honda Motor Co., the Court concluded that a state tort claim was preempted because it conflicted with the regulatory intention to provide manufacturers with options. But eleven years later in Williamson v. Mazda Motor of Am., Inc., the Court determined that state tort claims were only preempted if giving the manufacturer a choice was a “significant regulatory objective.” The Williamson decision gave lower courts guidelines to decide whether the “significant regulatory objective” standard is met, which includes reviewing the history of the regulation, the agency’s view of the regulation’s objective at the time it was promulgated, and the agency’s view at the time of litigation on the regulation’s preemptive effect. The agency’s views of the regulation can also be influenced by the Administration’s preemption philosophy.

Until the NHTSA completes its research, states can rely on the Preliminary Statement to enact testing legislation similar to that enacted in California, Florida, Michigan, Nevada, and the District of Columbia. Furthermore, states that want to legislate safety standards for salable autonomous vehicles can follow Nevada’s model, which included the enactment of interim safety provisions that it assumes will be preempted by the NHTSA’s final rules. These rules are expected to take at least three to four years to complete, so states should plan accordingly.

You can see our full report to the ULC here. We are also finalizing a report with detailed provisions recommendations to the ULC as well as draft legislation for Washington state, so stay tuned for those products and an accompanying blog post.