Federal AV legislation failed to cross the finish line in 2018. Where do we go from here?

When it comes to the future of autonomous vehicle regulations, very few things are black and white—except for the fact that no federal overhaul of AV safety regulations will come to pass in the immediate future. US Senator John Thune (R-SD), former chairman of the Senate Committee on Commerce, Science, and Transportation before turning in the gavel to become his party’s majority whip, described the inability of the Senate to pass the AV Start Act in the 2018 lame-duck session in one word: “disappointing.”

Ultimately, the death of the bill was due to safety concerns championed by Democratic Senators Ed Markey (MA), Richard Blumenthal (CT) and Dianne Feinstein (CA), coupled with the tepid, on-again-off-again support of the American Association for Justice, a nonprofit advocacy and lobbying organization for plaintiff’s lawyers. While hope remained alive deep into the lame-duck session, it was ultimately stamped out by the immigration fight that ultimately led to the ongoing partial government shutdown.

No sooner was the 116th Congress called to session at noon on Thursday, January 3, than the legislative docket was cleared and AV legislation returned to square one. Thune, in an email to media company Politico, floated the idea of attaching legislation as a rider to the next spending bill, a strategy dependent on the outcome of the shutdown standoff.

More important, novel legislation will have to be taken up by the newly minted House Democratic majority which may stress a different set of priorities when it comes to vehicle safety. It should be noted, however, that the legislation proposed in both the House and the Senate in 2018 was wholly bipartisan. In the House, members agreed upon a bill via voice vote after it passed out of the House Energy and Commerce Committee by unanimous consent. That fact is a source of hope among supportive members, and their staff, who remain optimistic that progress can be made amidst a divided government.

Three key committees—the House Energy and Commerce Committee, the House Transportation and Infrastructure Committee, and the Senate Commerce, Science and Transportation Committee—are elevating new chairmen who will henceforth hold greater influence over future AV legislation.

The House Energy and Commerce Committee will be chaired by former Ranking Member Frank Pallone, Jr. (D-NJ). As the Ranking Member, Pallone was an advocate for the SELF DRIVE Act, but now as Chairman, he could place a greater emphasis on consumer protections. Additionally, Representative Peter DeFazio (D-OR) is the new Chairman of the House Transportation Committee, he is expected to exercise more stringent oversight of the Department of Transportation.

In the Senate, Thune, as noted above, is leaving the chairmanship of Commerce, Science, and Transportation to assume the No. 2 position in Republican leadership as majority whip. Thune’s growing influence in the upper chamber could benefit AV legislation there but the committee’s focus may shift with his departure. Succeeding Thune is Sen. Roger Wicker (R-MS) who may be more focused with general aviation policy than autonomous vehicles.

New faces and policy differences aside, any legislation aimed at overhauling federal motor vehicle safety standards will likely take a backseat initially in the newly Democratically controlled House, which is focusing in the short-term on voting rights, campaign finance, and government ethics. However, given the non-partisan nature of updating Federal Motor Vehicle Standards to accommodate the autonomous revolution, new autonomous vehicle legislation will certainly be discussed. The questions that remain are when and how? When, is anyone’s guess, but smart money has an AV bill quietly working its way through the committee process under the cover of larger legislative initiatives. How, is a another story. Infrastructure legislation—one of the few bipartisan opportunities in the lead-up to 2020—is a natural vehicle for AV regulatory reform but it could be brought to the floor in a variety of ways.

As previously noted, the House Democratic caucus widely supported autonomous vehicle legislation in 2018. How their priorities will change now that their power is greatly enhanced is, to some extent, unknown. However, the opinions of Senators Markey, Blumenthal and Feinstein are known and unlikely to change without further concessions concerning liability, cybersecurity, and consumer safety. Their opposition poses a formidable roadblock to a future bill’s success. In the meantime, auto manufacturers will continue to navigate the complicated intersection of state laws governing testing and deployment.

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Eric Tanenblatt

About Eric Tanenblatt

Eric Tanenblatt is the Global Chair of Public Policy and Regulation of Dentons, the world's largest law firm. He also leads the firm's US Public Policy Practice, leveraging his three decades of experience at the very highest levels of the federal and state governments.

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Crawford Schneider

About Crawford Schneider

Crawford Schneider is an associate managing director in Dentons' Public Policy and Regulation practice focusing on matters involving state and local government affairs, including legislative/regulatory research and drafting, land use and zoning, economic development, public-private partnerships, public policy surrounding disruptive transportation, and international trade and investment.

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Andrew Shaw

About Andrew Shaw

Andrew Shaw is a member of the Public Policy practice at Dentons, where he focuses primarily on energy, environmental and US-Canada cross-border issues. He uses his knowledge and experience of Congress and the Executive Branch to provide clients with guidance on federal legislative and regulatory issues, including hydraulic fracturing, Clean Air Act (CAA) regulations, climate change mitigation and adaptation, clean/renewable energy standards, nuclear power, trade, transportation, tax and the Toxic Substances Control Act (TSCA).

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