TRANSIT AGENCIES PROVIDING OR SUBSIDIZING INNOVATIVE MICROMOBILITY PROJECTS: LEGAL ISSUES

Matthew W. Daus, Windels, Marx, Lane & Mittendorf LLP, New York, NY

I. INTRODUCTION

Micromobility refers to any small, low-speed, human- or electric-powered transportation device such as bicycles, scooters, electric-assist bicycles (e-bikes), electric scooters (e-scooters), and electric skateboards. Micromobility has become a popular option for short trips and active transportation in many cities, especially with the emergence of shared micromobility systems that provide on-demand access to users. Cities and transit agencies often provide or subsidize shared micromobility to decrease traffic and make mass transit more accessible by extending public transportation beyond what is easily walkable to or from a bus or light rail stop (i.e., solving the “first/last mile problem”). These devices can occupy space alongside bicycles in dedicated bike lanes or roadside areas.

Micromobility has many potential benefits for cities, such as reducing traffic congestion, greenhouse gas emissions, and noise pollution, as well as improving public health, mobility, and accessibility. However, micromobility also poses some challenges and risks for cities, such as safety, equity, infrastructure, and regulation. For cities and transit agencies that provide or subsidize its use, there are specific concerns that arise, including liability for injuries to riders, pedestrians, and motorists; safety of batteries; compliance with federal, state, and local disability/accessibility laws; disparate device distribution, costs, payment options, and other equity concerns; and privacy protection for the data collected on riders.

The report begins, in Section II, with a brief history of micromobility, including current popular bikeshare and scooter share companies like Bird and Lime, as well as the advent of dockless bike and scooter systems. This section explains the various definitions applicable to micromobility devices, and how defining micromobility is a necessary first step in regulating it.

Section III discusses the roles of federal, state, and local governments in regulating micromobility devices, operation of these devices on public streets, and shared micromobility programs. This section explains the roles of federal law in product and safety standards; state traffic laws and vehicle codes in governing the operation of micromobility devices on streets, trails, and bikeways; and local law in regulating shared micromobility companies that operate in a jurisdiction. It also provides an overview of the most common aspects of local micromobility regulations.

Sections IV and V explain the public safety risks, challenges, and liabilities present in e-bike and e-scooter use and operation, and ways to mitigate those risks. Section IV explains the common injuries to riders and pedestrians, as well as the fire risks presented by the batteries that power many of these devices and the “e-waste” that results from their relatively short lifespan. This section explores the liability of various parties when micromobility-related injuries occur. It focuses on the liability of the cities and transit agencies that authorize or subsidize shared micromobility programs, and provides examples of litigation in this area. Section V explores ways that cities and transit agencies mitigate risks associated with micromobility systems, including market entry restrictions, safety regulations, mandatory insurance, and liability waivers and indemnification clauses. The primary way that cities regulate micromobility and mitigate risk is by establishing permits and fees for bikeshare and scooter share companies to operate, and requiring operators to comply with certain standards and regulations. Section V also examines the benefits and drawbacks of different approaches to regulating micromobility devices, and offers recommendations for accepted practices to mitigate risk.

Section VI examines accessibility laws and their application to bikeshare and scooter share programs, which may be inaccessible for people with disabilities, especially to people who use wheelchairs or other mobility devices. This section explains the requirements of the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973, as amended, and how these laws apply to micromobility services that are provided or subsidized by transit agencies or municipalities, including the provision of adaptive devices and ensuring dockless devices do not obstruct sidewalks and other public rights-of-way. This section also provides several examples of how cities address accessibility concerns in their shared micromobility programs.

Section VII discuses equity and environmental justice issues that surround shared micromobility programs operated by transit agencies and cities. This section explains Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d) (Title VI), which prohibits discrimination based on race, color, or national origin,¹ the environmental justice requirements in Presidential Executive Order 12898, as well as Executive Order 13166, which mandates recipients of Federal funds ensure that persons who have limited English proficiency due to their national origin can access federally assisted programs and activities. These laws are more prevalent now that federal funding is explicitly available for shared micromobility systems through the Infrastructure Investment and Jobs Act (IIJA) that was signed into law in 2021.² This section also provides examples of equity practices used by various cities to address prevalent equity issues, such