Cross-posted from Volokh Conspiracy.

Since the 1950s, the Long Beach Freeway has linked the massive Ports of Long Beach and Los Angeles to, roughly, the rest of the continental United States. Because much has changed in trade and traffic since then, California’s relevant transportation authorities have decided that perhaps this freeway should change as well.

The resulting Draft Environmental Impact Statement (EIS), released in 2012, includes several project alternatives that feature a dedicated four-lane freight corridor for the many trucks that service the ports. In two of these alternatives, all of the trucks on the corridor are assumed to have automated steering, braking, and acceleration that enables them to travel in closely spaced platoons of six to eight vehicles. Smoother flows and lower headways mean higher vehicular capacity.

Automation–or at least automation-related litigation–is coming to an EIS near you.

For a transportation project, automation may be relevant to many of the project alternatives, including the no-build. Potential highway expansions typically use a planning horizon of at least twenty years, and yet several automakers now forecast that they will market vehicles with some kind of advanced automation within a decade. (To put this in slightly more skeptical terms, the self-driving cars that have been twenty years away since the 1930s are now just ten years away.)

As I have argued, the ongoing automation of our transportation system could change land use patterns, increase both travel demand and roadway vehicular capacity, and improve the vehicular level of service at capacity. This means that some of the basic assumptions upon which an EIS’s alternatives analysis is based, like a freeway lane’s theoretical capacity of 2400 vehicles per hour, may be outdated by the time a project alternative is implemented.

In addition, as with the Long Beach Freeway analysis, particular alternatives may involve the automation of vehicles or infrastructure beyond the no-build baseline. Instead of or as part of a bridge expansion, for example, a tolling authority might rededicate some lanes to automated car platoons. And rather than widen an urban arterial, a transportation department might implement intelligent traffic signal management.

I have encouraged planners in a variety of fields to consider the challenges and opportunities of increasing automation. When I made this point in a recent discussion, a state engineer even suggested that his colleagues would be acting unreasonably if they failed to do so. This is the kind of claim that litigants could use to delay, in the hopes of eventually defeating politically, a project that they oppose. (Just search “high-speed rail versus self-driving cars.”)

The National Environmental Policy Act (NEPA), its state counterparts, and some agency-specific statutes require an agency to identify and analyze reasonable ways in which its project’s reasonably defined purpose might be met. This “concept of ‘alternatives’ is an evolving one, requiring the agency to explore more or fewer alternatives as they become better known and understood.” Legal challenges to the sufficiency of an EIS rely on the Administrative Procedure Act or its state equivalent and require the reviewing court to take a so-called “hard look” to ensure that, even if the agency’s determinations are unwise, at least they are informed.

At this point, a plaintiff may find it difficult to ultimately persuade a court that many automation-based alternatives or impacts require consideration. Radical and distant forms of vehicle automation are probably too “uncommon or unknown” for most courts to reject an EIS that fails to consider them. Some courts may also blanch at automation-based alternatives that address only some aspects of the problem identified by the agency. And with respect to demand, capacity, and land use, an agency could probably satisfy most courts with a single sentence acknowledging the uncertain impacts of automation on these already uncertain variables.

But this will change. Thirty-five years ago, the Supreme Court held that plaintiffs failed to show that the Nuclear Regulatory Commission should have considered energy conservation as an alternative in an environmental review of a proposed power plant. But as this fine note (HeinOnline) describes, agencies, legislatures, and courts soon began to treat energy efficiency as a reasonable–and in some cases required–alternative or element thereof.

Vehicle automation, which is often associated with energy efficiency, may take a similar path. The caretakers of the Long Beach Freeway are getting an admirable head start, and I suspect that others will soon follow.