What the Fall of the Chevron Doctrine Could Mean for Auto Safety

A recent Supreme Court decision could endanger federal regulators' ability to make cars less likely to kill — including several pending rules aimed at protecting pedestrians, cyclists and other vulnerable road users, according to a prominent advocacy group.

SCOTUS recently overturned the 40-year-old "Chevron Doctrine of Deference" in a 6-3 decisions, essentially instructing American courts to no longer "defer" to the expertise of federal regulators when it comes time to deciding how best to implement new regulatory rules, and giving the opponents of those rules more power to challenge them in court — even if judges in those courts aren't subject matter experts.

That single move, the Washington Post's Jacob Bogage argued, could "touch nearly every facet of American life," including the government's ability to protect workers rights, intellectual property rights and healthcare access and rein in tailpipe emissions.

But it may prove equally impactful when it comes to regulating the rest of the car, including a slate of new and upcoming rules passed under the Bipartisan Infrastructure Law aimed at preventing deadly crashes through vehicle technology.

"Our concern, of course, is that if there is ambiguous language in any congressional directives, agencies will be reticent to meet or exceed [those directives]," explained Cathy Chase, president of the nonprofit Advocates for Highway and Auto Safety.

"For example, the automatic emergency breaking rule that was just issued exceeded the congressional directive by including pedestrian detection. So will there be a chilling effect moving forward on the agency taking action such as that? [Will] the agency always ... go to the least common denominator?"

Chase said that when Congress writes laws aimed at regulating the auto industry, it tends to intentionally use ambiguous language to give experts in federal agencies more latitude to write the best rules possible, in recognition of the fact that "it's nearly impossible for members of Congress to be issue experts" on the vast array of topics on which they might write laws.

Regulatory language tends to get even more ambiguous as bills go through the bipartisan negotiation process and lawmakers are forced to concede some of the details of a new regulation — for example, setting a deadline by which a new rule will legally need to be enforced — in order to get the legislation across the finish line.

Put it all together, Chase said, most of the auto regulations included in the Bipartisan Infrastructure Law are now vulnerable to challenges in court, including the automatic emergency braking rule, a proposed rule to require impaired driving prevention technology on new cars, and an update to federal auto consumer safety ratings that would, for the first time, consider how well-equipped cars are to avoid crashes with pedestrians and minimize their injuries when they're struck.

"It's really unfortunate, because there's technology that already exists that could be saving lives," Chase adds. "That's the bottom line. So any legal challenges or petitions for reconsideration is just slowing progress and endangering people on the roads unnecessarily."

Of course, safety advocates aren't always happy with what regulators do when courts automatically defer to their expertise. It's possible that the fall of the Chevron doctrine will create new avenues for those advocates to sue agencies who interpret ambiguous statutes in problematic ways. The proposed updates to federal consumer auto safety ratings, for instance, would still allow cars to receive a "five star" rating even if it didn't come equipped with the latest pedestrian safety technology.

Some worry, though, that the absence of the Chevron doctrine is more likely to be exploited by those who don't want the auto regulations required under the BIL to be implemented at all, rather than those who would like to see them implemented better. Industry lobbyists with the Alliance for Automotive Innovation, for instance, have already filed a petition urging NHTSA to reconsider its Automatic Emergency Braking rule, arguing, among other things, that it's "not practicable" to get a car traveling 40 miles an hour to avoid striking a human-sized mannequin; now, it's possible that the group could turn that petition into a full-on lawsuit.

"The fact that they're claiming that they can't resolve some of these issues within the six year time period given by the final rule seems like a difficult pill to swallow, considering that there are already some cars on the road that can do [this]," Chase said. "And honestly, we're concerned about all of [the BIL's proposed rules] ... Until these cars are on the road with these safety technologies, I think there's reason for concern."

Also of concern is how the overturning of the Chevron doctrine might impact the autonomous vehicle industry, which so far remains largely unregulated at the federal level even as AVs are tested on public roads and pedestrians lose their lives under their wheels.

If AV regulations or minimum performance standards were introduced now, the powerful companies behind those efforts might have more leeway post-Chevron to try to shoot those laws down — even as many of the same companies lobby against putting more-modest automatic driver assistance technology on cars that still have a human behind the wheel.

"It's somewhat ironic that segments of the industry are pushing back on automatic emergency braking, or impaired driving technology, saying like they can't comply within six years," Chase said. "But yet [they also say] they'll be ready to have a self-driving car? Last time we checked, to have a self-driving car, it's going to need to be able to brake."

Despite these anxieties, Chase stressed that it's premature to assume that any of these regulations are necessarily doomed. It will take time for the courts to apply the post-Chevron legal framework, particularly to the longest-standing auto safety laws.

If advocates can encourage NHTSA to implement the auto safety regulations in the BIL without delay, those regulations will save lives — even if they ultimately have to win over the courts.

"Don't lose hope," she said. "Keep fighting for our roads to be safer."