Legal Commentary

Examples of unintended consequences and countervailing risks abound in environmental policy: MTBE, a fuel additive initially adopted to reduce tailpipe emissions and meet Clean Air Act requirements, is now one of the most pervasive groundwater contaminants in the United States; prompted by California?s Proposition 65, Gillette removed TCE (a chemical listed as a ?known carcinogen? by the State) from Liquid Paper only to substitute 1,1,1-trichloroethane (?TCA?) (unlisted by the State, but perhaps even more dangerous than TCE); advances in home energy efficiency are offset by ever-larger homes and advances in fuel economy are offset by increases in vehicle miles traveled. One of the more unusual iterations of this frustrating, but common, phenomenon may be the complaint (primarily from the blind community) that hybrid vehicles pose a danger to pedestrians because hybrid systems are too quiet, see here for the National Federation of the Blind advocacy page.

From a purely environmental perspective, hybrids, including their maligned quietness, are a slam dunk. Noise pollution is widely recognized as imposing negative impacts on the human environment in the context of environmental impact review (indeed, environmental review documents frequently estimate the decibel contribution of proposed projects to noise levels in surrounding neighborhoods). And, of course, hybrids reduce gas consumption and carbon dioxide emissions.

At present, advocacy groups concerned about the threat hybrids pose to pedestrians seem to be focusing on legislative, administrative, and voluntary mechanisms to achieve the manufacture and/or retrofit of hybrids with noisemakers. The National Federal of the Blind, for example, states in ?Resolution 2006-05 Regarding Quiet Cars?:

BE IT RESOLVED by the National Federation of the Blind in Convention assembled this seventh day of July, 2006, in the City of Dallas, Texas, that this organization declare that the only solution to the quiet car emergency is a continuous sound emitted by the vehicle itself; and

BE IT FURTHER RESOLVED that this organization raise an alarm with car manufacturers, federal executive agencies, and the United States Congress about this emergency and demand that they act to ensure the safe and free travel of the blind and all other pedestrians.

However, the publicity about the lawsuit brought by the American Council of the Blind against the Department of the Treasury relating to currency design, American Council of the Blind v. Paulson, leads me to wonder (and I welcome comment) -- are there any legal hooks (beyond administrative action, such as petitioning for rulemaking under, for example, an existing vehicle safety statute or individual tort suits by pedestrians) that advocates might use to force the inclusion of noisemaking devices in hybrids? (Putting aside, for now, the normative question of whether such noisemaking devices are desirable.)

Here?s one somewhat unusual idea in the spirit of brainstorming. Many localities, states and the federal government have fleet procurement rules that require the purchase and use of hybrid vehicles by local, state or federal agencies (respectively). I?m not familiar enough with the Rehabilitation Act or the Americans with Disabilities Act to know whether that kind of government action provides even an arguable basis for a claim. And presumably any remedy would be limited to vehicles in the government fleet. But it is perhaps at least worth noting that there is direct government involvement of a sort when it comes to sneaky hybrids and maybe, therefore, another Paulson-style lawsuit lurking.