AuthorSaylor, John F.

INTRODUCTION 488 I. A LIGHT-TRUCK CRISIS: SAFETY AND EQUITY 493 A. The Light-Truck Crisis in Numbers 493 B. The Light-Truck Crisis as an Equity Issue 495 C. A Permanent Crisis 497 II. THE AUTO SAFETY FRAMEWORK 498 III. FIFTY YEARS OF AUTO SAFETY 501 A. Setting Safety Standards 502 B. Pedestrian Safety 504 C. Crash Compatibiity 508 D. Making Sense of Maladministration: Our Consumer Protection Obsession 511 IV. THE ROAD AHEAD: AUTO SAFETY AS TRANSPORTATION JUSTICE 516 A. Defining Transportation Justice 516 B. Transportation Justice in the Federal Government 518 C. The Need for Congressional Action 521 CONCLUSION 522 INTRODUCTION

In February 2003, Senator John McCain, Chairman of the Senate Committee on Commerce, Science and Transportation, convened a hearing to address troubling allegations that sport utility vehicles (SUVs) and pickup trucks were unsafe. (1) This was a serious concern: SUVs and pickups (together, "light trucks" (2)) represented the largest segment of new-vehicle sales at the time, having outsold passenger cars every year since 1999. (3) The preceding year saw a national scandal involving defective tires on the rollover-prone Ford Explorer and an explosive PBS Frontline report on SUV safety. (4) Worse still were remarks by the nation's top auto-safety regulator, National Highway Traffic Safety Administration (NHTSA) Administrator Dr. Jeffrey Runge, that had set off a firestorm of media attention just a month before. In an off-script interview following a speech at the Automotive News World Congress, Dr. Runge told reporters he would not let his daughter drive an SUV "if it was the last one on earth." (5)

At the hearing, senators heard Dr. Runge and auto-safety advocate Joan Claybrook (herself a former NHTSA Administrator) identify two principal dangers of light trucks: rollovers and crash incompatibility, each responsible for roughly 2,000 deaths every year. (6) The rollover threat, a consequence of light trucks' high centers of gravity, mainly endangers the vehicle's occupants. (7) In contrast, crash incompatibility (the danger created when two vehicles of different size and weight, such as an SUV and a sedan, collide) is an externalized harm, and overwhelmingly endangers those outside the vehicle. Dr. Runge presented data to the committee that in head-on impacts between pickup trucks and cars, car occupants were 6.2 times more likely to die than those in the pickup, and 26 times more likely to die in a side impact. (8) Crucially, the committee also heard that consumers were purchasing light trucks for their perceived safety advantages; and aside from the rollover risk, light trucks indeed offered substantially more protection to their occupants. (9) As the president of the Insurance Institute of Highway Safety warned the committee, there was a very real risk that the safety gains for light-truck occupants was coming "at the expense of increased risks for occupants travelling in other vehicles." (10)

Based on the information presented at the hearing, one might reasonably conclude that crash compatibility was the more pressing of the two issues, at least from the standpoint of regulatory intervention. After all, the safety-conscious consumer might be expected to shop around to find a light truck equipped with anti-rollover electronic stability control (ESC) technology. (11) But what incentive does the consumer have to pass on an ESC-equipped light truck in favor of a sedan that offers less occupant protection for the consumer and their loved ones? The increased risk of injury or death to a random stranger seems like a worthwhile tradeoff for greater protection for one's family--a classic case of market failure. (12) In that scenario, quick action to protect those not represented in consumer decisionmaking seems warranted. But in fact, almost the exact opposite happened.

Within two years of the hearings, Congress passed the omnibus Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) Transportation Bill, (13) which included a directive to NHTSA to institute rulemaking on rollover prevention standards. (14) In just a year and a half, NHTSA issued its final rule on Federal Motor Vehicle Safety Standard (FMVSS) 126, requiring ESC to be installed on all automobiles by 2011. (15)

Crash compatibility received a very different treatment. Rather than engaging in any rulemaking, NHTSA permitted the major automakers to adopt voluntary standards to improve outcomes in light-truck-on-car collisions, despite objections from advocacy groups. (16) According to research conducted by both NHTSA and the Insurance Institute for Highway Safety (IIHS), these voluntary standards have been, at best, only moderately effective for light-truck-on-car fatality rates and insignificant for pickup-on-car fatalities. (17)

The stark contrast between the regulatory response to rollovers and crash compatibility is in many ways a microcosm of our auto-safety regime. But for all its illustrative value, this story only partially captures the magnitude of our current failures. There is another mounting catastrophe that eclipses the crash-compatibility issue in both its human toll and the scandal of NHTSA's inaction: the pedestrian fatality crisis.

Over the past decade, pedestrian fatalities in the U.S. have increased more than fifty percent, surpassing 6,500 deaths in 2019 (despite a decrease in the overall traffic death rate)--a thirty-year high. (18) If taken as a separate category, automobile-on-pedestrian strikes would rank as the eighth-most-common cause of injury death in the country. (19) This death toll has hardly slowed, even in the midst of the COVID-19 pandemic. Despite a national double-digit percentage decrease in miles driven, pedestrian fatalities actually increased in the first half of 2020, resulting in the greatest single-year increase in the pedestrian fatality rate ever recorded. (20) And while NHTSA was at least able to secure a voluntary agreement from automakers to address compatibility, the regulatory response to this decade-long crisis has been virtually nonexistent--drawing criticism from two separate federal oversight agencies. (21)

These twin issues--pedestrian safety and crash incompatibility--share similar pathologies. Both have significant and alarming equity implications, disproportionately burdening women, low-income communities, and people of color. And, crucially, both are exacerbated by vehicle design choices that are closely tied to the American appetite for SUVs and pickups. (22) While a global "Vision Zero" movement to eliminate traffic fatalities has put forward a compelling roadmap to address traffic violence from a transportation-planning systems approach, (23) relatively little attention has been paid to the design of the vehicles moving within those systems. As light trucks capture a growing portion of the market, including nearly three out of every four sales in 2020, (24) unaddressed vehicle design issues will continue to stymie efforts to reduce the avoidable human toll imposed by our transportation system.

To explain these two failures, this Comment presents original research from a half-century of federal auto-safety policy, from the origins of NHTSA and the National Traffic and Motor Vehicle Safety Act (MVSA) (25) to the present. Drawing on that history, I connect NHTSA's ongoing failures to an unduly narrow, consumer-centered regulatory approach that struggles to address equity concerns or externalized dangers. Addressing this crisis, I argue, requires us to reframe auto safety not as a consumer protection issue but as a matter of "transportation justice"--to explicitly consider equity and the distributional consequences of vehicle designs in safety policymaking. (26)

This Comment begins with an evaluation of the current state of auto safety. Part I makes the case that growing light truck sales represent not only a safety crisis, but a serious threat to equity in transportation. This crisis is a product of the unaddressed, externalized safety risks that light trucks create for other road users. Part II examines the statutory toolkit at NHTSA's disposal and explains why the FMVSS must be the cornerstone of any effort to address these externalized dangers.

Part III explores five decades of NHTSA research and rulemaking on pedestrian safety and crash incompatibility. I show that these threats were diagnosed as early as the mid-1970s by NHTSA researchers, but rulemaking initiatives were repeatedly postponed, deprioritized, and ultimately abandoned. These failures, I argue, are the product of a consumer-protectionist vision that came to dominate auto-safety policy across the federal government, from NHTSA to the halls of Congress. This approach regulates automobile design chiefly for the safety and benefit of the people who buy them while leaving other road users unprotected against the externalized dangers of those designs.

Three decades into the light-truck boom, it is evident that addressing those dangers and the dramatic equity issues that they create will require a fundamental reconceptualization of auto safety. Part IV concludes that this transformation will require NHTSA to adopt a new vision that places transportation justice principles above consumer protection. NHTSA, however, is not likely to achieve this on its own, and Congressional intervention may be necessary to secure the full promise of auto safety.


    Automobiles are deadly--traffic violence was the second leading cause of unintentional death by injury in the United States. (27) This violence is not inflicted at random, however. Not only do light trucks exact an outsized toll on other road users, but those on the receiving end of this threat are disproportionately low-income, people of color, and women. The dramatic growth of the light-truck segment has had serious consequences for roadway safety and has contributed to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT