How Driving is Encouraged and Subsidized — By Law

Photo:  Rebranding Driving
Photo: Rebranding Driving

Driving is so hard-wired into American culture, life and institutions, that it’s hard to account for all the ways it is subsidized, preferenced or otherwise favored. But Greg Shill, a law professor at University of Iowa, attempted it anyway.

In a new paper, he lists all the ways the legal system puts its thumb on the scale for drivers to the detriment of everyone else: transit users, cyclists and pedestrians.

“Rules from virtually every field of law that codify subsidies for driving, including dangerous driving, should be repealed,” Shill writes. “These laws are not the root cause of automobile supremacy, but they armor it in law and give it agency of its own.”

How many areas of law? Let Shill count the ways:

#1. Traffic Laws Soft-Peddle Very Dangerous Behavior

Speeding kills 10,000 Americans annually. But while it’s technically illegal, the offense enforced arbitrarily and half-heartedly.

For example, in practice, speeding rules are not enforced unless the violation is in excess of 10 mph over the limit. This is an example of what’s called in legal terms “an insincere rule,” he says, a rule that practically mandates something other than what it states. That approach to speeding “fosters a creeping normalization” of what is in fact a very dangerous activity, he writes.

In addition, other dangerous behavior, like failing to yield to pedestrians is almost never enforced. Shill cites a Wisconsin study showing drivers only yielded to pedestrians 16 percent of the time, indicating that if cops wanted to, they could spend their time doing nothing else but writing failure-to-yield tickets.

#2. Land Use Laws Favor Sprawl

Zoning laws such as single-family only land uses and minimum lot sizes have served to spread the distance between where people live and where they want to go, forcing them into lifestyles that are almost totally dependent on driving. In addition, zoning laws frequently restrict housing density — a more walkable form of land use — and limit mixed-use buildings, which blend retail and residential.

As a result walkable housing and retail are effectively outlawed in much of America.

#3. Legal Parking Requirements Subsidize Driving

“Over the past 100 years,” Shill writes, “it has been the undeclared first principle of U.S. transportation policy that individuals should be able to travel door-to-door in private vehicles at no cost, beyond the expenses of operating one’s own car. ”

Minimum parking requirements are a key part of that. A ubiquitous part of zoning law, they require a fixed number of parking spaces near every building type. Usually, these parking spaces are provided for free to users, but that doesn’t mean they don’t cost money. Some studies have estimated they add as much as $225 to an apartment’s rent.

These rules have led to massive amounts of land being consumed by parking. For example, by some estimates 14 percent of LA County’s land area is consumed by parking.

In addition, to parking requirements, many cities provide free on-street parking, or undercharge for it. Even ultra-liberal, transit friendly Cambridge, Massachusetts “sells car storage for $2.08 a month” through its residential permitting program, Shill writes.

#4. Emissions Laws Exempt ‘Light Trucks’

Environmental regulations also serve to subsidize driving in a variety of perverse ways. Shill singles out the exemption from fuel economy standards for “light trucks” i.e. SUVs. This encouraged car makers to sell pickup trucks and SUVs, which now make up about 65 percent of new car sales. As a result, they have wiped out all the efficiency gains made by cars over the last few decades.

In addition, SUVs in particular tend to be deadly for pedestrians. The National Highway Transportation Safety Administration estimates they are two to three times more likely to kill a pedestrian in a collision than a sedan.

#5. Emissions Laws Ignore the Environmental Costs of Roadbuilding

The EPA regulates vehicle emissions — although, as we’ve covered, not every effectively. At the same time, the EPA ignores the high environmental cost of building the roads themselves. The U.S. added an average of 31,000 highway lane miles per year over the last decade, Shill reports adding about 109 million metric tons of carbon dioxide to the air annually just from the construction. The social cost of that, using standard formulas, is about $4 billion, he says. EPA doesn’t do anything about it.

#6. Vehicle Safety Regulations Ignore Pedestrians

The U.S. imposes all kinds of safety regulations on vehicle manufacturers such as airbags, seatbelts and crumple zones. But, so far, these regulations have completely ignored vulnerable road users: pedestrians and cyclists.

Safety groups like the Insurance Institute for Highway Safety, Shill said, “have for decades only considered the crashworthiness of vehicles for occupants of the vehicle being rated, again ignoring potential impacts on pedestrians and other vehicles.”

Meanwhile, the United Nations urges national governments to use regulations to protect pedestrians, who make up 16 percent of total U.S. traffic deaths — a portion that is growing as cars become safer and safer for their occupants and more dangerous for everyone else. Forty-four nations have adopted the guidelines. Late in the Obama Administration, U.S. safety regulators moved to begin considering impacts to pedestrians, but the effort has not been continued by the Trump administration.

#7. Vehicle Safety Regulations Allow Unsafe Aftermarket Vehicle Modifications

Vehicle regulations also inexplicably ignore a whole range of aftermarket modifications that can worsen safety, especially for vulnerable users.

Most notably, perhaps, they allow drivers — especially drivers of pickups and SUVs — to affix “bull bars,” metal reinforcement rods, to the front ends of their vehicles. These have shown to be dangerous to both drivers and pedestrians. They are especially dangerous to children. Child pedestrians hit by a car with bull bars at 10 to 15 times more likely to be killed, one study found.

They are banned in the U.K. and in some other countries, but in the U.S. they are basically unregulated. In fact, many police departments use taxpayer dollars to purchase them for patrol vehicles.

#8. Insurance Law Limits Payouts to Pedestrians

Insurance law also fails pedestrians in a couple of ways.

For one thing, premiums are fixed, regardless of how many miles a driver drives — a perverse form of pricing that incentivizes more driving, which leads to more crashes. Studies have estimated that a pay-as-you-go auto insurance rate would reduce driving 6 to 10 percent.

In addition, states’ insurance laws fail pedestrians by requiring only relatively low bodily injury coverage. Shill writes:

The modal minimum amount of bodily injury coverage required by states is $25,000. The steepest requirement, $50,000, only applies in two of the nation’s least populated states, Alaska and Maine. The lowest is zero, which applies in Florida and New Hampshire.

In three of the nation’s five most populous states—California, Florida, and Pennsylvania, with nearly 75 million residents among them — the mandatory level of insurance for bodily injury is unusually low, between zero and $15,000.

“Most states,” Shill continues. “formally prioritize third parties — pedestrians, motorists, and property owners who are harmed by the insured’s actions. In no state is the scheme designed with anything resembling a goal of making vulnerable road users whole after being run over by a car.”

#9. Tax Law Subsidizes Sprawl

U.S. tax law also upholds the supremacy of driving, mostly through the mortgage interest deduction, says Shill. This tax benefit privileges homeownership over renting, helping fuel sprawl and car dependence.

#10. Tort Law Protects Dangerous Drivers

Tort law — which allows injured parties to sue for relief — also prevents injured pedestrians and cyclists from winning full restitution in a couple of ways, Shill writes.

“Courts restrict strict liability to activities that are both ultrahazardous and uncommon,” he writes.

But, of course, many driving behaviors are ultra-hazardous but also extremely common.

“A superior legal approach to our present one would rely on the dangerousness requirement alone,” he writes.

#11. Contract Law Freezes Out Pedestrians

Pedestrians, when they are injured in a collision that might be due to a vehicle defect, don’t have standing because they do not have “privity,” meaning they didn’t enter into a contract with the car maker, like the buyer did, Shill explains.

“Thus, under a strict reading of this rule, an innocent bystander would be unable to sue an automobile manufacturer in contract,” Shill writes. “The lack of privity defense has been criticized for removing potential relief for innocent bystanders, who do not have any way of preventing or avoiding the risks caused by unsafe products.”

#12. Criminal Law Rarely Punishes Dangerous Drivers

People who kill or injury pedestrians with vehicles are almost never charged criminally and convicted even more rarely, Shill writes.

A 2015 study [PDF] by the New York-based advocacy group Transportation Alternatives found that 99 percent of drivers involved in hit-and-run crashes were not charged by New York City’s five district attorneys.

The charge of vehicular homicide can help some pedestrians get justice. But juries are hesitant to convict of even lesser charges like involuntary manslaughter, Shill says.

 

  • TM

    Oh, such a simple fix. It’s mostly only possible on one-way streets because you can’t sync light to give everyone going both directions greens at the same time, along with traffic on every crossing street. Traffic engineers already go to great lengths to do this as much as is possible. It hasn’t made anything safer.
    Funny how you think drivers will quickly learn to adapt to this, but they could never adapt to stopping at red lights when cameras are installed, even though all evidence shows they do.

    And again, you’re ignoring that you will not get anywhere any faster by driving faster in between intersections. Lights are already constantly being optimized by city traffic engineers to move as much vehicle traffic as fast as possible, everything you’ve every dreamed of is already being done for you. All you’re going to get by driving faster is putting more people in danger. You are not going to get anywhere any sooner. The only thing traffic engineers could possibly do to make you life easier as a driver is ride shotgun and fellate you while you drive. All you have to do is drive no less than 10 mph over the speed limit and stop at red lights and you’ll never be troubled as a driver. But no, not good enough for you. You have to have complete immunity from all rules. You’ve got force your tailpipe down all our throats and we have to smile and take it or you’ll kill us.

  • jcwconsult

    You have both safer and smoother travel when the speed variance is low and drivers get a long string of green lights for their commutes. It obviously doesn’t work in the deepest downtown when the congestion gets to the 5 to 15 mph average and you could post the limit at 90 mph for no effect. But it can work well on the collectors and arterials to produce smooth and predictable flows toward the downtown areas with very few conflicts. My friends in the MI State Police Traffic Services understand that painting 25’s on the signs when the 85th speed is 35 or 40 is just giving all road users a false sense of security because the signs are false.

    Drivers don’t adapt to red light cameras because almost every camera intersection has a yellow too short for the actual conditions by a few tenths of a second up to about one full second. This is deliberate and those drivers get most of the tickets while causing zero crash risks because they clear the intersections during the all red phase plus the short start up delay for the cross traffic to actually start moving. Adding one second to the yellows will almost always produce a permanent drop in the violation rates of at least 60% and more typically about 80%. The only reason not to use correct yellows is profits – and profits are the wrong reason for enforcement. They guarantee that many cities will long delay or permanently end any plans to fix the engineering areas because they won’t give up the revenue.

    James C. Walker, National Motorists Association

  • Sincerely

    Again, red lighting cameras reduce crash risks. Maybe those people who get tickets “only” ran the light a little bit, but having that possibility in place seems to prevent much more flagrant — and dangerous — violations.

  • Sincerely

    You were just complaining about Florida putting up warning signs for how signals are timed.

  • jcwconsult

    The FL data are not warning signs for the public, they are the FDOT engineering rules in their manual as they changed over time.

    James C. Walker, National Motorists Association

  • Sincerely

    Speed limit signs are warnings that inform motorists what to expect at traffic signals.

  • jcwconsult

    And as history and hundreds of speed surveys show, when posted limits are set well below or well above the actual 85th percentile speeds, they affect the actual 85th speeds by a maximum of 3 mph and an average of 1.5 mph. It is a key factor to assure profits in the for-profit red light camera industry.
    James C. Walker, National Motorists Association

  • Sincerely

    So you’re telling me that motorists willfully ignore warning signs about traffic signal timings? I wonder why they think they should do that. Couldn’t have anything to do with decades living in a culture with little to no accountability for that kind of irresponsibility and which even adjusts the street environment to accommodate it. If that were the cause, we’d probably want to address that first rather than continuing the same path expecting things to improve.

  • TM

    This is horseshit. All you’re saying is driving fast is safer. That’s 100% false.
    Drivers do adapt to red light cameras, as evidenced by every study that shows fewer crashes and deaths when they are installed.

  • jcwconsult

    The views of anyone who thinks the super-majority of motorists (85%) will drive at speeds well below those they find to be safe and comfortable and which ARE safe and comfortable almost all the time with any level of enforcement that cities can afford is simply wrong. Several states publish documents about posted limits that support 85th posted limits as the best and safest – and which accurately say artificially low limits do not change speeds.

    Anyone who refuses to accept this 75+ year known fact is almost certain to make plans that do not work. Remember, I only want to deal with realities – not useless wishful thinking that is often used to facilitate for-profit enforcement rackets.

    James C. Walker, National Motorists Association

  • Sincerely

    You’re so weird. And you’ve demonstrated repeatedly that you have no idea what reality is.

  • jcwconsult

    Having done well over 200 Lidar speed studies myself and read hundreds more done by police, traffic engineers, DOTs, and researchers – including many before/after posted limit changes – I can definitively say posted limits set well below the 85th percentile speeds of free flowing traffic under good conditions have almost no effect on the actual travel speeds. You are free to call my clear knowledge of that fact weird if you want, but it is reality. And the issue has been well known and documented for over 75 years. Your failing to recognize this reality is hard to understand – given that it is so well documented for decades.

    James C. Walker, National Motorists Association

  • Stephen Simac

    Unfortunately the ignorant minority is the driving majority. I know comments sections aren’t necessarily representative, but sampling them from around the country, shows he’s not a voice in the wilderness, by comparison a more reasonable one.

    BTW, I read that study by the Toole Group-( I believe the one you referred to ?) It was linked to in an article in The Atlantic. It actually supports my position that bicycle (and pedestrian) projects funding dried up in the 80’s, and this was the primary cause for blocking bike lanes and protected lanes until the 2000’s, not the tiny cabal of ‘vehicular cyclists” they blamed. I’ve written a lengthy response to The Atlantic about this, but it’s too long for comments. (probably too long for letters to the editor either)

    I will condense it and get back to you soon with the highlights.

  • Sincerely

    I’m honestly not that interested in your opinion on bike infrastructure history, but I appreciate the thought.

  • Sincerely

    You think lower speed limits accompanied by enforcement do not result in lower speeds? You’re free to believe whatever you want, but you need to stop claiming allegiance to reality if that’s your take.

  • jcwconsult

    Hundreds of speed studies show otherwise, because posted limits have so little influence on the actual travel speeds. One collector in my town has 1st percentile posted limit with 99% above – including school buses with kids aboard, police cars not on a run, garbage trucks, service buses, and all the local traffic. It has been that way for at least 20 years I know of, despite periodic ticket blitzes for profits.

    It is what makes for-profit enforcement rackets so very profitable to produce reliable revenue items for the local budgets. Officers can go to what some call “duck ponds” or “fishing holes” week after week, month after month, and year after year to find about the same range of speeds above the posted limits set well under the actual 85th percentile. Set the limit at the 30th percentile and you will reliably have about 70% of the drivers arbitrarily defined as violators or criminals and available for revenue collections.

    James C. Walker, National Motorists Association

  • Sincerely

    I think we’re likely talking about different things. You seem to be operating under the absolutely bizarre assumption that the 85th percentile speed must be lowered substantially and permanently to see a safety benefit from a lower speed limit coupled with enforcement. The reality is that nearly every study has found safety benefits from even occasional enforcement actions.

    It’s not “arbitrary” when the 30th percentile speed is often much more appropriate for the context. I know that’s difficult to understand for someone with decades of ingrained biases to overcome.

    You need to find a more ethical hobby.

  • jcwconsult

    I think we are talking about exactly the same things, but have quite different views on the results. And I respectfully acknowledge that we will never agree on some of the points.

    The first and by far the hardest fact to have people understand is that posted limits have almost no effect on the actual travel speeds. Many people think they should, but they don’t.

    Painting lower numbers on the signs well below the speeds most drivers find to be safe and comfortable, and which virtually all drivers ignore if enforcement is not visible at the time, does not change the actual travel speeds by any significant amount. If the slowest 85% of the cars are at or below 40 mph on a collector or arterial for the 99+% of the time that officer-done enforcement is not present, and the vast majority of the regular users of the street know where to slow down briefly for any fixed speed cameras, no one has ever showed me a good argument why painting 35s, 30s, or 25s on the signs makes anything safer.

    Ann Arbor has off-and-on been a border-to-border speed trap since 1962. Some city council administrations have emphasized traffic enforcement, and some have not, so the situation changes from time to time. A high percentage of the posted limits are illegal and unenforceable under a state law passed in 2006 and under an even-stricter set of state laws passed in 2016 – laws where the NMA had some meaningful input to the rationales and wording of many key clauses. In the absence of visible enforcement, the travel speeds never change. The small number of ticket recipients including myself who know the limits are illegal can go to court and get tickets dismissed, but the city never fixes the illegal limits. They know most drivers won’t challenge the tickets and the revenue will keep coming. And drivers who might get one occasional ticket every few years don’t change their driving habits for very long. If they got a ticket for 35 in a 25 on a collector or arterial where 70+% of the drivers are between 31 and 40 (the Pace on this street with an 85th speed of 40), the chances they will drive in the bottom 5% or 10% of the flow are essentially nil after a day or two past the ticket day. They just feel ripped off to be one of the rare unlucky ones who contributed to the city budget that day.

    You and many others emphasize enforcement as a key solution, but cities or states simply cannot or will not afford enforcement that has any significant effect to lower the actual travel speeds for most drivers. Only engineering changes lower the actual travel speeds – whether such changes are advisable for other reasons or not.

    Lower actual travel speeds can affect the severity of accidents when they happen. Lower numbers on signs don’t.

    Respectfully, James C. Walker, National Motorists Association

  • Stephen Simac

    I won’t waste your time then. Not really an opinion since I rely on their quotes from the “study”.

  • DavesHoliday

    I’m a member of NMA. I’m also a bicyclist with close to 70,000 lifetime miles, slightly more than half of that on city streets, and including one 3,000 mile cross-country ride. That I’m a cyclist is not unusual among NMA members. You might get a better sense of NMA from this interview with JCW:

    https://www.washingtonpost.com/news/tripping/wp/2016/11/28/this-motorist-group-wants-you-to-pay-more-in-fuels-tax-but-it-also-wants-to-chuck-traffic-cameras/?utm_term=.5db89b131603

  • DavesHoliday
  • DavesHoliday

    Better than vision zero would be getting infotainment out of cars–with the exception of GPSes. There has been a rise in fatalities over the last 10-12 years which began around the time of the introduction of the iPhone. As a cyclist, I rarely ride anywhere other than bike paths anymore, although I once commuted on city streets. I’m afraid of people texting and talking on cell phones, as I see them all the time when I’m driving or walking.

  • DavesHoliday

    I–an NMA member–agree that neighborhood streets should be narrow to slow drivers down. Seattle has a lot of narrow neighborhood streets. (Which have probably been narrow since they were built.)

  • Sincerely

    Addressing distracted driving is a part of Vision Zero. I agree, it’s definitely a serious problem.

  • Sincerely

    I read that interview. It’s kind of embarrassing for the Washington Post that they featured a crank like JCW, but everybody makes mistakes I suppose.

  • Frank Kotter

    FYI: some of those cars whizzing past were doing closer to 250. I am one of them on occasion. As an advocate for everything ‘not private automobiles’ it’s my own guilty pleasure.

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