Has the Pandemic Made California Less Concerned About Regulating Autonomous Vehicles?

Autonomous vehicle (AV) technologies continue to drive significant investment and interest from both the automotive and tech sectors alike. According to CB Insights, at least 40 companies are developing road-going, self-driving vehicles,¹ including for commercial retail (e.g. Tesla). Others aim to create their own fleet of "robotaxis" (e.g. Waymo), with some developing software/hardware that can convert a driver-operated vehicle into an AV (e.g. Ghost), or building their own AVs without steering wheels (e.g. Cruise, Zoox).

Not surprisingly, the regulatory landscape is as varied as the developmental field. In addition to significant new proposals at the federal level, 38 states and the District of Columbia have enacted legislation or issued executive orders regarding AVs. Currently, 14 states allow full deployment of AVs without a driver behind the wheel.²

But California—home to many of the biggest names in the AV space and generally the first to regulate new technologies—seems to have paused on its regulatory odyssey with respect to AVs during the pandemic. Perhaps the very fact that there are so many fewer drivers on the road during the pandemic has made concerns about AVs' "road-readiness" less salient.

California AV Legislation and DMV Regulation

In 2012, California enacted AV legislation (SB 1298), which expressly authorized the operation of AVs in the state, so long as they receive Department of Motor Vehicles (DMV) approval. The bill further ordered the DMV to develop regulations for the operation of AVs on public roads. Accordingly, in 2014, the DMV introduced AV regulations and subsequently began an AV Tester Program that allows manufacturers to test AV technology with a human driver behind the wheel ("drivered" AVs).

In 2018, the DMV opened a new Driverless Tester Program that allows manufacturers to test autonomous vehicles without a driver in the vehicle ("driverless" AVs). Ultimately, the DMV established an AV Deployment Program, which allows AVs to be made commercially available outside of the testing programs.

At the end of 2019, the DMV opened these AV testing and deployment programs up to light-duty AV trucks such as delivery vehicles. As of January 21, 2021, more than 50 entities hold testing permits for "drivered" AVs, five entities have obtained driverless permits, and one has been authorized for deployment.

CPUC AV Regulation

The California Public Utilities Commission (CPUC) has jurisdiction over passenger carriers (e.g. shuttle service, limousines, and transportation network companies like Uber and Lyft). In 2017, the CPUC began developing regulations for AV passenger service.

The CPUC established two AV pilot programs in 2018, one drivered and one driverless, that authorized Transportation Charter-Party Carrier (TCP) permit-holders to test AV passenger services, free of charge. Note, however, the CPUC has determined that "[a]ny entity seeking to offer AV passenger service to any member of the public, including journalists and potential investors," is subject to CPUC jurisdiction and must apply for a TCP permit in order to participate in the AV pilot or deployment program.

Thus, an AV company must meet all the regulatory requirements of a charter-party carrier before it can offer rides to members of the public, even if only for testing and demonstration purposes (and even if the AV company does not intend to provide "robotaxi" services in the future). Only seven entities have been issued AV pilot permits by the CPUC at this time.

In a decision issued in November 2020, the CPUC approved drivered and driverless AV "deployment," allowing companies to accept compensation on fare-based AV trips. This allows for CPUC-approved AV taxi and ride-hailing services in California.

The decision requires participants to submit Passenger Safety Plans that will outline the steps the companies will take to provide accessible service, and establishes the following goals:

• 1. Protect passenger safety;
• 2. Expand the benefits of autonomous vehicle technologies to all of California's communities;
• 3. Improve transportation options for all, particularly for disadvantaged communities and low-income communities; and
• 4. Reduce greenhouse gas emissions and air pollutants, particularly in disadvantaged communities.

Additionally, participants must publicly file quarterly data reports, through which the CPUC will monitor the participants' progress toward each of the goals.

But that is still where things stand today, and there has been no further discussion of any subsequent steps from the CPUC in its regulatory docket focused on AVs. We will all just have to wait and see if more and more cars coming back on the road as the pandemic (eventually) comes to an end will create increased urgency for the CPUC and other regulators across the country with respect to AV regulation.

FOOTNOTES

1  See https://www.cbinsights.com/research/autonomous-driverless-vehicles-corporations-list/
2  Alabama, Arizona, California, Florida, Georgia, Louisiana, Michigan, Nebraska, Nevada, North Carolina, North Dakota, Tennessee, Texas, Utah. See https://www.ghsa.org/state-laws/issues/autonomous%20vehicles