In infrastructure law, a stronger emphasis on highway safety

States told they can no longer set goals that allow traffic deaths to increase each year

Cars and trucks are directed into the right lane on Interstate 78 in Greenwich Township, Pa., on April 27, 2021. Federal highway law requires states to set data-driven safety goals. (Ben Hasty/Getty Images)
Cars and trucks are directed into the right lane on Interstate 78 in Greenwich Township, Pa., on April 27, 2021. Federal highway law requires states to set data-driven safety goals. (Ben Hasty/Getty Images)
Posted March 1, 2022 at 10:00am

For years, highway safety groups have argued that two provisions in federal highway law encapsulate a fundamental flaw in how the federal government approaches highway safety.

The provisions, which require the states to set performance standards related to traffic-related deaths and injuries, have in some cases been implemented to permit states to set goals allowing those deaths to increase from year to year. That’s because the performance goals are required to be data-driven, considering factors such as miles traveled and population growth.

But skyrocketing traffic deaths — the National Highway Traffic Safety Administration projects that 31,720 people died in traffic crashes between January and September 2021 — coupled with persistent criticism from safety groups have spurred a reevaluation of that policy.

Now, the federal government, partly through the bipartisan infrastructure law passed last year and partly through a 42-page National Roadway Safety Strategy released in January, is telling states they can no longer set goals that allow traffic deaths to increase from one year to the next.

The change could signal a reversal of what Beth Osborne of Transportation for America says has been a resignation that highway deaths are inevitable. She argues that federal policy has for too long prioritized moving from point A to point B quickly rather than safely.

“So much of what they do or say is, if only our users weren’t reckless maniacs that we would be fine,” she said. “All of the mental gymnastics we do in this country are meant to justify why we should never slow down our roads. And so long as not slowing down our roads is the objective, we can’t talk about safety.”

States are required to set performance measures for traffic deaths in two sections of federal highway law.

One provision — Section 150 of Title 23, created as part of the 2012 highway law — tied Federal Highway Administration infrastructure dollars to performance measures, including safety. States meeting their traffic fatality goals could use some of those safety dollars for other purposes.

The second, Section 402 in Title 23, requires NHTSA to work with the Governors Highway Safety Association to create safety performance measures. That provision doesn’t offer a financial incentive to meet those standards.

Regardless of congressional intent, neither provision specified that the goals had to effectively mean fewer deaths from year to year. But the bipartisan infrastructure law changed that by including a provision amending Section 402 to require states to set highway safety plans that “demonstrate constant or improved performance” for each performance measure.

Though many states nominally have the same fatality or serious injury goals for both the NHTSA standard and the FHWA standard, Caron Whitaker, deputy executive director at the League of American Bicyclists, said her organization is watching closely to make sure that states continue to embrace identical goals after the bipartisan infrastructure law is implemented. Other safety groups, such as the Governors Highway Safety Association, said the fatality goals are considered “shared” goals between the two programs, so both will have to “demonstrate constant and improved performance.”

Whitaker said the FHWA standard, which comes with federal dollars, could ultimately move states the most. Under Section 150, states that meet their safety goals may use their safety dollars for other purposes. States that don’t meet those goals are required to use all of their safety dollars for safety. But, “if fatalities are going up, why are you transferring money out of safety?” she asked.

Hopeful in 2012

She said when Congress passed that provision in 2012, safety advocates were thrilled, interpreting it to mean states would be compelled to improve their fatality rate.

But when the first numbers came out, “we didn’t see the fatalities going down and we didn’t see a change in the spending of their highway safety dollars,” said Whitaker. “So I guess that’s when we realized it was just business as usual.”

Among the states that have seen increased projections is California. In 2019, the target highway fatality rate for the FHWA goal was 3,445.4. In 2020, that goal climbed to 3,518. In 2021, the goal had increased to 3,624.8. The state’s NHTSA goal was the same.

Asked about that rate, a spokesman for the California Department of Transportation said the state set safety performance standards in accordance with federal regulations requiring the use of five-year rolling averages as the basis for target setting. The 2022 targets for California forecast an annual reduction in fatalities and an annual increase in serious injuries.

“Although the target for serious injuries is trending in the wrong direction, the rate of increase is targeted to decrease,” and the state’s goal is to reach zero fatalities and serious injuries by 2050, the spokesman said.

Illinois, too, has set its goals to include a slight increase. In 2019, the goal was 977.5. By 2021, the fatality goal was 1,000.

In its 109-page fiscal 2022 Highway Safety Plan submitted to NHTSA, the state explains that the target reflects a reduction of 2 percent from the expected outcome based on historical trends, with data from 2012 to 2020 used to create a five-year rolling average for each year.

State traffic experts emphasize that the goals have never been aimed at wanting more people to die in traffic accidents but were instead the product of a complicated equation involving factors such as miles traveled, population growth and other variables to create a realistic, data-driven goal for states to meet. While the trend would sometimes spike from year to year, the overall goal was always to reach zero fatalities.

That explanation didn’t satisfy safety groups. Transportation for America’s Osborne, long a critic of federal traffic safety policy, said by allowing regressive targets, the federal government was essentially saying such deaths were inevitable.

“Safety is no one’s top priority,” Osborne said. “You can’t have our results and have safety be a top priority.”

But Russ Martin, senior director of policy and government relations for the Governors Highway Safety Association, said states set higher goals simply to follow the law’s direction to “set a data-driven target.”

“I don’t think there’s any state out there that’s like, ‘We want these fatalities to happen,’” he said. “They're just trying to follow the law.”

He said ultimately the new provision could occasionally be at odds with the law to set “reasonable, data-driven” standards by setting goals that are more aspirational than achievable.

“What will probably happen is that this will lead to states setting more aggressive goals, and maybe that's a good thing,” he said. “Whether the target is regressive or progressive or aspirational, we’re doing everything we can to reach zero.”