Platooning: Uncertain Obstacles (Part 2 of 2)

Last time I wrote about platooning, and the potential economic savings that could benefit the commercial trucking sector if heavy duty trucks were to implement the technology. This week, I’m writing about one of the current barriers to implementing platooning both as a commercial method, and in the larger scheme of highway driving.

One of the most readily identifiable barriers to the widespread implementation of truck platooning is the ‘Following Too Close’ (“FTC”) laws enforced by almost every state. There is currently a patchwork of state legislation which prevents vehicles from following too closely behind another vehicle. Violating these laws is negligence per se.

For those who don’t quite remember 1L torts, negligence per se essentially means “if you violate this statute, that proves an element of negligence.” Therefore, if one vehicle is following too closely behind another vehicle in violation of an FTC statute, that satisfies the breach element of negligence and is likely enough to be fined for negligent driving.

These laws are typically meant to prevent vehicles from following dangerously close or tailgating other vehicles. The state laws that regulate this conduct can be divided into roughly four categories. Some states prescribe the distance or time a driver must remain behind the vehicle in front of them; others impose a more subjective standard. The subjective standards are far more common than the objective standards.

Subjective Categories

• “Reasonable and Prudent” requires enough space between vehicles for a safe stop in case of an emergency. This FTC rule is the most common for cars and seems to be a mere codification of common-law rules of ordinary care.
• “Sufficient space to enter and occupy without danger” requires trucks and vehicles with trailers to leave enough space that another vehicle may “enter and occupy such space without danger.” This is the most common rule for trucks.

Objective Categories

• Distance-Based: Some states prescribe the distance at which a vehicle may follow another vehicle; others identify a proportionate interval based on distance and speed. These are the most common rules for heavy trucks and frequently set the minimum distance between 300 and 500 feet.
• Time: Timing is the least common FTC, but the two jurisdictions that impose this rule require drivers to travel “at least two seconds behind the vehicle being followed.”

It is easy to see how, given the close distance at which vehicles need to follow to benefit from platooning, any of these laws would on their face prohibit platooning within their borders. However, several states have already enacted legislation which exempts the trailing truck in a platoon from their “Following Too Close” laws. As of April 2019, 15 states had enacted legislation to that effect. Additional states have passed legislation to allow platoon testing or pilot programs within their states.

However, despite some states enacting this legislation, a non-uniform regulatory scheme does not provide  the level of certainty that will incentivize investment in platooning technology. Uncertain state regulation can disincentivize interstate carriers from investing in platooning, and could lead to a system where platooning trucks only operate within single state boundaries.

Although the exemptions are a step in the right direction, non-uniformity will likely result in an overall lower platooning usage rate, limiting the wide-spread fuel efficiency and safety benefits that are derived when platooning is implemented on a large, interstate scale. Without uniform legislation that allows platooning to be operated consistently across all the states, the need for different systems will hinder the technology’s development, and the rate at which trucking companies begin to adopt it.

However, even if not all states pass legislation exempting platooning vehicles from their FTC laws, there could be a way around the subjective elements. The most common subjective law, “Reasonable and Prudent” requires only enough space that the vehicles can safely stop in case of an emergency. When considering a human driver this distance is likely dozens of feet, given the speed at which cars travel on the interstate. However, recall from last week that platooning vehicles are synchronized in their acceleration, deceleration, and braking.

If the vehicles travel in tandem, and brake at the same time and speed, any distance of greater than several feet would be considered “reasonable and prudent.” Perhaps what needs to be developed is a “reasonable platooning vehicle” standard, rather than a “reasonable driver” standard, when it comes to autonomous vehicle technology. Then again, considering the ever-looming potential for technological failure, it could be argued that following that close behind another heavy vehicle is never reasonable and prudent, once again requiring an exemption rather than an interpretive legal argument for a new “reasonableness” standard.

Either way, to ensure certainty for businesses, more states should exempt platooning vehicles from their “Following Too Close” laws. Otherwise, the technology may never achieve a scale that makes it worth the early investment.