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No. 10-618
upreme ourt 0[ toe f Initebi
CI~/" OF NEW YORK, etPetitioners,
METROPOLITAN TAXICAB BOARD OF TRADE,et al.,
Respondents.
On Petition for Writ of Certiorari to the UnitedStates Court of Appeals for the Second Circuit
BRIEF OF CITY OF CHICAGO, et al.,AS AMICI CURIAE IN SUPPORT
OF PETITIONERS
MARA S. GEORGES
Corporation Counselof the City of Chicago
BENNA RUTH SOLOMON*Deputy Corporation CounselDIANE M. PEZANOSKI
Deputy Corporation CounselMYRIAM ZRECZNY gASPER
Chief Assistant CorporationCounsel
GRAHAM G. MCCAHAN
Assistant Corporation Counsel30 N. LaSalle St., Suite 800Chicago, IL 60602(312) [email protected]
*Counsel of Record
Additional counsel listed inside the cover
WILSON-EPES PRINTING Co., INC. - (202) 789-0096 - WASHINGTON, D. C. 20002
SUE B. CAIN
Director of LawJAMES L. CHARLES
Associate Director of LawThe Metropolitan
Government of Nashville& Davidson CountyTennessee
Room 108, Metropolil~anCourthouse
P.O. Box 196300Nashville, TN 37219(615) 862-6341
LARS ETZKORN
Program DirectorCenter for Federal RelationsNational League of Cities1301 Pennsylvania Ave.,
N.W.Washington, DC 20004(202) 626-3000
DAVID M. FELDMAN
City AttorneyCEIL PRICE
Senior Assistant CityAttorney
P.O. Box 368Houston, TX 77001(832) 393-6291
DAVID R. FINECity AttorneyJACQUELINE H. BERARDINIAssistant City AttorneyCity & County of Denver1437 Bannock StreetRoom 353Denver, CO 80202(720) 913-3287
PETER S. HOLMESCity AttorneyKENT C. MEYERAssistant City Attorney600 Fourth Avenue4th FloorP.O. Box 94769Seattle, WA 98124-4679(206) 684-8200
DEVALA JANARDAN
Associate Counsel/Directorof Legal Advocacy
International MunicipalLawyers Association
7910 Woodmont AvenueSuite 1440Bethesda, MD 20814(202) 466-5424
KAREN KENNARD
Acting City AttorneyROBIN SANDERS
Assistant City AttorneyCity of Austin Law
DepartmentP.O. Box 1088Austin, TX 78767(512) 974-2268
LINDA MENG
City AttorneyHARRY M. AUERBACH
Chief Deputy City AttorneyBENJAMIN E. WALTERS
Chief Deputy City AttorneyRoom 430, City Hall1221 SW Fourth AvenuePortland, OR 87204(503) 823-4047
THOMAS P. PERKINS, JR.
City AttorneyCHRISTOPHER J. CASO
BARBARA E. ROSENBERG
Assistant City AttorneysDallas City Attorney’s
Office1500 Marilla StreetRoom 7B NorthDallas, Texas 75201(214) 670-3519
JOHN DANIEL REAVESGeneral CounselUnited States Conference of
Mayors1200 New Hampshire
Avenue, N.W., 8th FloorWashington, D.C. 20036(202) 776-2305
DANIEL D. REGANSolicitorELAINE WIZZARDAssistant SolicitorCity of PittsburghDepartment of Law313 City-County Building414 Grant StreetPittsburgh, PA 15219(412) 255-2015
EDWIN P. RUTAN, IICity AttorneyLAURA KIRWANSenior City AttorneySalt Lake City CorporationP.O. Box 145478451 South State StreetSuite 505Salt Lake City, UT 84114(801) 535-7788
SUSAN L. SEGAL
City AttorneyJOEL M. FussY
Assistant City AttorneyCity of Minneapolis350 South 5th StreetCity Hall Room 210Minneapolis, MN 55415(612) 673-2010
WILLIAM F. SINNOTT
Corporation CounselSUSAN M. WEISE
First AssistantCity of BostonLaw DepartmentCity Hall, Room 615Boston, MA 02201(617) 635-4034
ADRIENNE SOUTHGATECity SolicitorCity of Providence Law
Department275 Westminster Street,
Suite 200Providence, RI 02903(401) 421-7740, x333
CARMEN A. TRUTANICH
City AttorneyWILLIAM W. CARTER
Chief Deputy City AttorneyPEDRO B. ECHEVERRIAChief Assistant City
Attorney200 North Main Street,
Suite 800Los Angeles, CA 90012(213) 978-8748
QUESTION PRESENTED
Whether a local government program that creates anincentive, but contains no mandate, for taxicab ownersto purchase alternative-fuel vehicles, which are definedby reference to engine technology and not fuelefficiency, is preempted under 49 U.S.C. § 32919(a),which prohibits local regulations "related to fueleconomy standards."
(i)
Blank Page
TABLE OF CONTENTS
QUESTION PRESENTED ...............
TABLE OF AUTHORITIES ..............
INTEREST OF THE AMICI CURIAE ......
REASONS FOR GRANTING THEPETITION ....... .....................
I. EPCA SHOULD NOT BEINTERPRETED TO PREEMPT LOCALCLEAN-VEHICLE INCENTIVEPROGRAMS .....................
II. THE COURT BELOW SHOULD HAVEAPPLIED THE PRESUMPTIONAGAINST PREEMPTION BECAUSECLEAN-VEHICLE INCENTIVEPROGRAMS ARE AN EXERCISE OFTHE HISTORIC POLICE POWERS OFLOCAL GOVERNMENTS .........
III. ALLOWING LOCAL GOVERNMENTSTO ADOPT INNOVATIVE CLEAN-VEHICLE INCENTIVE PROGRAMSADVANCES THE GOALS OF EPCA..
CONCLUSION
Page
i
iv
1
12
12
19
25
30
(iii)
iv
TABLE OF AUTHORITIES
CASES Page
Altria Group, Inc. v. Good, 129 S. Ct.538 (2008) ................... 9, 11, 19
Bates v. Dow Agrosciences, LLC, 544 U.S.431 (2005) ...................... 19
Buck v. California, 343 U.S. 99 (1952) .. 9, 21
California Division of Labor StandardsEnforcement v. DillinghamConstruction, N.A., Inc., 519 U.S. 316(1997) .......................... 18
Cincinnati, Indianapolis, & WesternRailway Co. v. City of Connersville,218 U.S. 336 (19110) ............... 22
Crandon v. United States, 494 U.S. 152(1990) .......................... 12
Detroit, Fort Wayne., & Belle Isle Railwayv. Osborn, 189 U..S. 383 (1903) ......9, 21
Engine Manufacturers Association v.South Coast Air Quality ManagementDistrict, 541 U.S. 246 (2004) ........17-18
Escanaba & Lake MichiganTransportation Co. v. City of Chicago,107 U.S. 678 (1883) ............... 22
V
TABLE OF AUTHORITIES-Continued
Page
Fanning v. Gregoire, 57 U.S. (16 How.)524 (1853) ..................... 21
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1(1824) ......................... 9, 21
Gilman v. City of Philadelphia, 70 U.S.(3 Wall.) 713 (1865) ..............22, 25
Hager v. City of West Peoria, 84 F.3d865 (7th Cir. 1996) .............. 14
Huron Portland Cement Co. v. City ofDetroit, 362 U.S. 440 (1960) ....... 24
K Mart Corp. v. Cartier, Inc., 486 U.S.281 (1988) ..................... 15-16
Karpark Corp. v. Town of Graham, 99F. Supp. 124 (D.C.N.C. 1951) ......
Massachusetts v. EPA, 549 U.S. 497(2007) .........................
Milk Control Board of Pennsylvania v.Eisenberg Farm Products, 306 U.S.346 (1939) ..................... 25
New State Ice Co. v. Liebmann, 285 U.S.262 (1932) ..................... 5
vi
TABLE OF AUTttORITIES-Continued
New York, New Haven & HartfordRailroad Co. v. New York, 165 U.S.628 (1897) .....................
New York State Conference of BlueCross & Blue Shield Plans v.Travelers Insurance Co., 514 U.S. 645(1995) .........................
Oregon v. Ice, 129 S. Ct. 711 (2009) ...
Pacific Gas & Electric Co. v. PoliceCourt, 251 U.S. 22 (1919) .........
Rice v. Santa Fe Eh;vator Corp., 331U.S. 218 (1947) .................
Slaughter-House Cases, 83 U.S. (16Wall.) 36 (1872) .................
Page
22
18,20
10
10, 21
9, 19
21
STATUTES AND CONGRESSIONAL MATERIAL
49 U.S.C. § 32901(a)(6) ............. 12
49 U.S.C. § 32901(a)(7) ............. 14
49 U.S.C. § 32901(a)(18) ............ 14
49 U.S.C. § 32901(a)(19) ............ 14
49 U.S.C. § 32901(c) ............... 16
vii
TABLE OF AUTHORITIES-Continued
49 U.S.C. §
49 U.S.C. §
49 U.S.C. §
49 U.S.C. §
49 U.S.C. §
49 U.S.C. §
49 U.S.C. §
49 U.S.C. §
49 U.S.C. §
49 U.S.C. §
49 U.S.C. §
49 U.S.C. §
Page
32901(d) ............... 16
32901(f) ................ 16
32901(g) ............... 16
32902(b) ............... 14
32902(b)(1)(C) .......... 17
32902(b)(2)(C) .......... 16
32902(e)(2) ............. 16
32902(h)(3) ............. 16
32902(k) ............... 17
32902(k)(2) ............. 16
32902(k)(3) ............. 16, 17
32919(a) ............... 3
S.Rep. No. 94-516 (1975), reprinted in1975 U.S.C.C.A.N. 1956 ..........
ORDINANCES, RULES, and RESOLUTION
7, 27
Municipal Code of Chicago, Ill. § 9-112-510(e) (2010) ................... 23
oooVlll
TABLE OF AUTHORITIES-Continued
Salt Lake City Code § 12.56.205(2010) .........................
35 Rules of the City of New York § 1-78(a)(3) (2009) ..................
Resolution 2010R-570, available athttp://www.ci.minneapolis.mn.us/council/archives/proceedings/2010/20101119-proceedings.pdf. ..........
BOOKS AND PERIODI[CALS
Page
4
29
Jane Jacobs, THE DEATH AND LIFE OF
GREAT AMERIC,t~N CITIES (VintageBooks (1992) ................... 6
Paul S. Dempsey, Taxi IndustryRegulation, Deregulation, &Reregulation: the Paradox ofMarket Failure, 24 Transp. L.J. 73(1996) ....................... 22, 23, 26
National Research Council,Effectiveness and’ Impact ofCorporateAverage Fuel Economy(CAFE) Standards (2002), availableat http://www.nhtsa.gov/cars/rules/cafe/docs/162944_web.pdf ......... 15
ix
TABLE OF AUTHORITIES-Continued
ADMINISTRATIVE MATERIALS Page
U.S. Energy InformationAdministration, Annual EnergyReview 2009, DOE/EIA-0384 (2010),available at http://www.eia.doe.gov/emeu/aer/pdf]aer.pdf ............. 6
U.S. EPA, Air Toxics from MotorVehicles, EPA 400-F-92-004 (1994),available at http://www.epa.gov/otaq/toxics.htm ..................... 7-8
U.S. EPA, Automobile Emissions: AnOverview, EPA 400-F-92-007 (1994),available at http://www.epa.gov/oms/consumer/05-autos.pdf ...........
U.S. EPA, Inventory of U.S. GreenhouseGas Emissions and Sinks: 1990-2008,EPA 430-R-10-006 (2010), availableat http://www.epa.gov/climatechange/emissions/usinventoryreport.html ..
U.S. EPA, National EmissionsInventory Air Pollutant EmissionsTrends Data, 1970-2008 AverageAnnual Emissions, available athttp://www.epa.gov/ttnchiel/trends/ ........................
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IN THE
aurt af toe f lnit l tate
No. 10-618
CITY OF NEW YORK, et al.,Petitioners,
V.
METROPOLITAN TAXICAB BOARD OF TRADE,et al. ,
Respondents.
On Petition for Writ of Certiorari to the UnitedStates Court of Appeals for the Second Circuit
BRIEF OF CITY OF CHICAGO, et al.,AS AMICI CURIAE IN SUPPORT
OF PETITIONERS
INTEREST OF THE AMICI CURIAE
Amici are local governments across the country andnational organizations of local government officials.*
* Pursuant to Rule 37.6, amici certify that no counsel for a party
authored this brief in whole or in part; and no counsel or party,other than the City of Chicago, made a monetary contribution tofund the preparation or submission of the brief. Pursuant to Rule
37.2, counsel for both petitioners and respondents were notified
2
All of the local government signatories of this brief-Austin, Boston, Chicago, Dallas, Denver, Houston, LosAngeles, Minneapolis, Nashville, Pittsburgh, Portland,Providence, Salt Lake City, and Seattle -have adoptedimportant environmental programs for theircommunities. Many of these programs aim to promotesustainability and reduce air pollution. Amicitherefore have a compelling interest in legal issuesaffecting local governments and in this case inparticular.
The International Municipal Lawyers Association("IMLA") is a non-profit, professional organization ofover 3500 local govern~nent entities, including cities,counties, and special dilstrict entities, as representedby their chief legal officers, state municipal leagues,and individual attorneys. Since 1935, IMLA hasserved as a national, and now international,clearinghouse of legal information and cooperation onmunicipal legal matters. IMLA’s mission is to advancethe responsible develop~ment of municipal law througheducation and advocacy by providing the collectiveviewpoint of local governments around the country onlegal issues before thi~,~ Court, the federal courts ofappeals, and state supreme and appellate courts.
The National League of Cities ("NLC") is the oldest
more than 10 days before the due date of the brief or our intent to
file this brief; their written consent is submitted with this brief.
3
and largest organization representing municipalgovernments throughout the United States. Itsmission is to strengthen and promote cities as centersof opportunity, leadership, and governance. Workingin partnership with 49 state municipal leagues, NLCserves as a national advocate for the more than 19,000cities, villages, and towns it represents.
The United States Conference of Mayors ("USCM")is the official non-partisan organization of all UnitedStates cities with populations of 30,000 or more.Members are represented in USCM by their chiefelected official, the mayor. USCM’s official policyprovides that taxi regulators across the country shouldset fuel-economy and emissions standards for vehiclesthey regulate. The policy applies to taxicabs and othervehicles operated for hire pursuant to an operatinglicense, permit, or other authorization issued by a stateor political subdivision and providing localtransportation for a fare determined primarily on thebasis of time and/or distance traveled.
This case concerns a claim of preemption directedagainst a New York City regulation that createsincentives for owners of taxicab medallions to purchasehybrid-electric and clean-diesel taxicabs. The court ofappeals relied on an express preemption provision ofthe Energy Policy and Conservation Act, 49 U.S.C. §32919(a).(2010) ("EPCA"), to invalidate this regulation.This decision was incorrect and should be reversed.
4
While EPCA’s preemption is broad, it does not reachrules that encourage but do not mandate purchase ofhybrid or clean-diesel vehicles. Morever, the decisionputs at risk numerous other regulatory programsnationwide.
Several other local governments, including Boston,Dallas, and King County, Washington, adopted similartaxicab regulations. Many more are engaged in avariety of creative programs to encourage residents tochoose more fuel-efficient vehicles. For example, SaltLake City provides free parking at city parking metersfor low-polluting and fuel-efficient vehicles. See SaltLake City Code § 12.56.205 (2010). Portland haspartnered with local, utilities and automobilemanufacturers on a federal grant to promote electricvehicles, installing charging infrastructure throughoutthe region and adopting "electric vehicle" exclusive on-street parking spaces. And Boston formed apartnership with NSTAR Electric and theInternational Brotherhood of Electrical Workers toencourage plug-in hybrid-electric vehicles. All of theseprograms, and more, are aimed at reducing ourcountry’s over-dependence on fossil fuels, which causespollution, contributes to climate change, and threatensnational security, as EPCA itself makes clear. If notreviewed, the decision below could stifle innovation wecan hardly afford to forgo.
5
This Court has repeatedly recognized that"[i]t is oneof the happy incidents of the federal system that asingle courageous State may, if its citizens choose,serve as a laboratory; and try novel social andeconomic experiments without risk to the rest of thecountry." New State Ice Co. v. Liebmann, 285 U.S. 262,311 (1932) (Brandeis, J., dissenting). The court belowhas halted local experimentation with making taxicabsmore energy-efficient. Its decision has alreadycurtailed the enforcement and implementation ofsimilar programs in Minneapolis and Seattle (see infraat 28-29) and could affect countless other innovativeprograms around the country. Because the decision inthis case will have a direct effect on matters ofsubstantial importance to amici and their members,amici submit this brief to assist the Court indetermining whether the petition for a writ ofcertiorari should be granted.
6
INTRODUCTION AND SUMMARY OFARGUMENT
"[L]ively, diverse, intense cities contain the seeds oftheir own regeneration, with energy enough to carryover for problems and needs outside themselves." JaneJacobs, THE DEATH AND LIFE OF GREAT AMERICAN
CITIES 448 (Vintage Books 1992). In 2010 and into theforeseeable future, lively, diverse, intense Americancities need cars. Although cities work best when theirresidents, workers, and visitors have varioustransportation options, cities depend upon cars to movepeople around. And people moving around, bywhatever means, give cities their energy and vitality.Unfortunately, just as modern American cities needcars, cars need energy -- copious amounts of energy.
In 2009, the United States consumed 18.7 millionbarrels of petroleum per day. See U.S. EnergyInformation Administration, Annual Energy Review2009, DOE/EIA-0384, Figure 5.1 (2010), available athttp://www.eia.doe.gov/emeu/aer/pdf/aer.pdf. Motorgasoline for the transportation sector accounted formore than 8.8 million barrels, or 47%, of that dailytotal. See id. at Table 5.13c. This energy consumptioncomes at a cost. The United States spent nearly $199billion on crude oil imports in 2009, and net importsaccounted for almost 52’,% of United States petroleumconsumption that same year. See id. at Tables 5.20,5.7. Recognizing both the pecuniary and non-
7
pecuniary costs of the Nation’s petroleum consumptionand importation, Congress enacted EPCA in 1975 to"decrease dependence on foreign imports, enhancenational security, achieve the efficient utilization ofscarce resources, and guarantee the availability ofdomestic energy supplies at prices consumers canafford." S. Rep. No. 94-516, at 117 (1975), reprinted in1975 U.S.C.C.A.N. 1956, 1957.
In addition to these energy-related costs, highwayvehicles accounted for 50% of United States emissionsof carbon monoxide, 32% of nitrogen oxides, and 21% ofvolatile organic compounds CVOCs") in 2007 and 2008.See U.S. EPA, National Emissions Inventory AirPollutant Emissions Trends Data, 1970 - 2008 AverageAnnual Emissions, available at http://www.epa.gov/ttnchiel/trends/. Carbon monoxide reduces the flow ofoxygen in the bloodstream and is dangerous to personswith heart disease. U.S. EPA, Automobile Emissions:An Overview, EPA 400-F-92-007, 2 (1994), available athttp://www.epa.gov/oms/consumer/O5-autos.pdf.Nitrogen oxides and VOCs are both precursors to theformation of ground-level ozone, which damages thelungs and aggravates respiratory problems, and is,according to the U.S. EPA, "our most widespread andintractable urban air pollution problem." Ibid. Inaddition, as much as half of all cancer caused byoutdoor sources of air toxics may be attributed to motorvehicles.. See U.S. EPA, Air Toxics from MotorVehicles, EPA 400-F-92-004, 1-2 (1994), available at
8
http://www.epa.gov/otaq/toxics.htm. Moreover, light-duty vehicles (cars and light trucks) account for nearly20% of United States carbon dioxide emissions. SeeU.S. EPA, Inventory of U.S. Greenhouse Gas Emissionsand Sinks: 1990-2008, EPA 430-R-10-006, 3-12 (2010),available at http://www.epa.gov/climatechange/emissions/usinventoryreport.html. As this Courtrecently found, "U.S. motor-vehicle emissions make ameaningful contributic, n to [global] greenhouse gasconcentrations ...." Massachusetts v. EPA, 549 U.S.497,525 (2007).
Congress did not intend EPCA to preempt efforts bycities to manage their transportation networks,promote energy independence, reduce air pollution, orfight climate change through clean-vehicle incentiveprograms. The text of EPCA, interpreted in light ofthis Court’s preemption precedents, makes this clear.New York City’s partJicular clean-vehicle incentiveprogram, 35 Rules of the City of New York § 1-78(a)(3)("Lease Cap Rules" or "Rules"), is a permissibleregulation for two reasons. First, the Lease Cap Rulescontain a technology-based standard that does notimpermissibly relate to the federal fuel-economystandards that are the subject matter of EPCA and itspreemption clause. Second, the Lease Cap Rules arean incentive program for taxicab owners and thus donot impermissibly relate to EPCA’s fuel-economyprogram, which prescribes performance standards formanufacturers. The court of appeals improperly
9
expanded EPCA preemption by misinterpreting its textand failing to heed the presumption againstpreemption of historic local police powers. This Courthas long operated under "the assumption that thehistoric police powers of the States were not to besuperseded by [a] Federal Act unless that was the clearand manifest purpose of Congress." Rice v. Santa FeElevator Corp., 331 U.S. 218, 230 (1947). And theCourt has continued to recognize that this assumptionapplies "with particular force when Congress haslegislated in a field traditionally occupied by theStates." Altria Group, Inc. v. Good, 129 S. Ct. 538,543(2008) (citation omitted).
Although the federal government has assertedsignificant authority over interstate transportation,energy, and air quality on a national level, localgovernments have traditionally exercised substantialauthority over their transportation networks andstreets. See, e.g., Buck v. California, 343 U.S. 99, 102(1952) (local regulation of taxicabs); Detroit, FortWayne, &Belle Isle Railway v. Osborn, 189 U.S. 383,390 (1903) (local order requiring railway to installsafety devices); Karpark Corp. v. Town of Graham, 99F. Supp. 124, 128 (D.C.N.C. 1951) (local regulation ofparking meters). See also Gibbons v. Ogden, 22 U.S. (9Wheat.) 1, 97 (1824) (counsel’s list of local licensinglaws for stage carriages). This includes localregulations aimed at reducing air pollution from thetransportation sector. See, e.g., Pacific Gas & Electric
10
Co. v. Police Court, 251 U.S. 22, 25-26 (1919) (localregulation requiring street railroads to suppress dustis within police power and collecting cases). Consistentwith these historic police powers, New York City andother local governments have adopted clean-vehicleincentive programs to increase the efficiency of theirtransportation networks and promote better airquality. Pet. 25-27. These local incentive programsvary in their content and scope, but such variety andinnovation are laudable and should be permissible inour federal system.
Preserving a space for local experimentation benefitsnot only the governments that pilot original programsbut also the Nation as a whole. See, e.g., Oregon v. Ice,129 S. Ct. 711, 719 (20,09). Local governments needroom to innovate within the federal framework becauseunique local problems often demand unique localsolutions; and ifa local solution is found, it is one lessproblem left for another’ level of government. Or, localgovernments across the country may face similarproblems, and the programs of one can serve as asource of solutions for others. Either way, the rest ofthe country reaps the benefits of local innovation whilenot bearing the costs. There are instances, of course,where local innovatic, ns may improperly burdeninterstate commerce or overly intrude upon federalconcerns, but courts are properly reluctant toinvalidate on either ground local programs adopted
11
pursuant to their historic police powers.Group, 129 S. Ct. at 543.
See Altria
The court below misread the statute and misappliedthis Court’s precedents. As the petition makes clear, italso created a conflict in the circuits. Pet. 9. From theperspective of the amici, the decision’s sweepingbreadth alone warrants granting the petition. Thecourt of appeals’ expansive interpretation of EPCA’spreemption provision encourages challenges to otherlocal incentive programs around the country thatpromote the use of clean, fuel-efficient motor vehiclesin American cities and towns. It also chills thedevelopment and implementation of future programsby encouraging litigation against them. To address theimportant issue of EPCA preemption and provideclarity to the courts of appeals, to state and localgovernments, and to businesses and consumersweighing the short-term benefits of lower-cost,traditional vehicles against the long-term implicationsfor our Nation of continuing our over-dependence ontraditional energy sources to power those vehicles, theCourt should grant the petition for a writ of certiorari.
12
REASONS FOR GI~NTING THE PETITION
EPCA SHOULD NOT BE INTERPRETEDTO PREEMPT LOCAL CLEAN-VEHICLEINCENTIVE PROGRAMS.
The court of appeals ruled that EPCA preempts eventechnology-based clean-vehicle incentive programs, likeNew York City’s Lease Cap Rules. The plain languageof the preemption provision shows that this is wrongfor two reasons. First, the court omitted an importanttextual limitation on the scope of preemption, whichrestricts its reach to laws and regulations related tofederal annual fuel-economy standards formanufacturers. Second, it ignored the differencebetween technology-based programs that provideincentives and those that impose mandates.
EPCA preempts local regulations "related to fueleconomy standards or average fuel economystandards." 49 U.S.C. § 32919(a). The statute defines"average fuel economy standard" as "a performancestandard specifying a rainimum level of average fueleconomy applicable to a manufacturer in a modelyear," id. § 32901(a)(6), while "fuel economy standard"itself is not defined. Nonetheless, "it is an ancient andsound rule of construction that each word in a statuteshould, if possible, be given effect." Crandon v. UnitedStates, 494 U.S. 152, 171 (1990) (Scalia, J.,concurring). In violation of this ancient and sound
13
rule, the court below failed to give effect to the phrase"fuel economy standard" when it interpreted EPCA’spreemption clause. As a result, it reached aninterpretation far broader than if it had accommodatedall the statutory terms.
The court of appeals did not offer a definition of"fueleconomy standards," but leapt to the erroneousconclusion that the Rules "are directly related to fueleconomy standards" based on the idea that "they relyon fuel economy, and nothing else, as the criterion fordetermining the applicable lease cap." Pet. App. lla.This conclusion both misidentifies the preemptedsubject matter and mischaracterizes the Rules. Withrespect to the scope of EPCA preemption, EPCA doesnot preempt local regulation that relies on "fueleconomy," but only regulation that relates to "fueleconomy standards." The court below simply read theword "standard" out of EPCA’s preemption clause. Inturn, because the court failed to give effect to a word oflimitation, it impermissibly expanded the scope ofpreemption and swept in local regulation that mayrelate to "fuel economy" but does not relate to "fueleconomy standards" as used in EPCA - namely, as weexplain below, federal performance standards directedat manufacturers.
And with respect to the Lease Cap Rules, the courtof appeals mischaracterized them by stating that theRules "rely on fuel economy, and nothing else, as the
14
criterion" for determining lease rates. The Rules doindeed rely on something else to determine theapplicable lease cap- a technology-based criterion thatdifferentiates between hybrid and clean-diesel engines,on the one hand, and traditional gasoline engines onthe other. The court incorrectly determined that"’hybrid’ is simply a proxy for ’greater fuel efficiency’"and, therefore, that the Rules impermissibly relate tofuel-economy standards’.. Pet. App. 11a. In support ofits conclusion, the court stated that "EPCA specificallyrequires the separate consideration of ’dual fueled’vehicles, including hybrids, in the determination ofnational fuel economy standards." Id. at 10a. Thismisses the point. EPCA may require federal regulatorsto separately consider hybrids in determining fuel-economy standards, but that does not make enginetechnology a "fuel economy standard." Federalregulators must also consider vehicle weight when theyset separate average fuel-economy standards forpassenger automobiles and larger commercial vehicles.See 49 U.S.C. § 32902(b). See also id. §§ 32901(a)(7),32901(a)(18), 32901(a)(19) (defining different vehiclesclasses by weight for purposes of setting separate fuel-economy standards). ]Nonetheless, neither of theserequirements makes local laws based on enginetechnology or that classify vehicles by weight a "fueleconomy standard."1
1 Weight restrictions are commonplace. See, e.g., Hager v. City of
West Peoria, 84 F.3d 865, 86’7 (7th Cir. 1996) (local prohibition of
15
The court also found the Rules problematic becausethey are not "neutral to the fuel economy of thevehicles to which they apply." Pet. App. lla. To besure, engine technology can affect fuel economy, but atechnology-based local incentive program with an effecton fuel economy does not thereby have a prohibitedrelationship to "fuel economy standards" under EPCA.Many design features of new automobiles affect fueleconomy: size, shape, weight, energy-using accessories,and tire type. See National Research Council,Effectiveness and Impact of Corporate Average FuelEconomy (CAFE) Standards 31-32, 95 (2002), availableat http://www.nhtsa.gov/cars/rules/cafe/docs/162944_web.pdf. Thus, mandating taxicabs of acertain size or capacity, for instance, undoubtedlyaffects a fleet’s fuel economy. Under the court ofappeals’ reading of EPCA, any local taxi regulation orother programs that require or promote certainvehicles based on these or other design features wouldbe preempted because such programs are not fuel-economy neutral.
Although EPCA does not define the term "fueleconomy standards," the broader statutory schemeprovides a guide to its scope. In order to interpret astatutory term, courts may look to the particularstatutory language at issue, as well as "the languageand design of the statute as a whole." KMart Corp. v.
overweight vehicles on certain streets).
16
Cartier, Inc., 486 U.S. 281,291 (1988). EPCA refers to"fuel economy standards" in other parts of the statutewhere, as in the preemption provision itself, that termis used separate from the term "average fuel economystandards." See, e.g., 49 U.S.C. §§ 32902(b)(2)(C),32902(e)(2), 32902(h)(3), 32902(k)(2), 32902(k)(3).Both these other provisions and the other portion ofthe preemption clause itself can and should beconsulted to determine the scope of local regulationthat is preempted because it is "related to fueleconomy standards."
These other uses of t:he same term reveal that "fueleconomy standards" means the same thing as "averagefuel economy standards," except with the "average"component removed. T]hus, "a performance standardspecifying a minimum level of average fuel economyapplicable to a manufacturer in a model year" becomesthe more general "a performance standard specifyingfuel economy applicable to a manufacturer in a modelyear."2 Framed in this way, it becomes clear that a
2 See, e.g., 49 U.S.C. § 32902(b)(2)(C) (Secretary of Transportation
"shall prescribe annual fuel economy standard increases thatincrease the applicable average fuel economy standard"); id. §32902(e)(2) (manufacturers may exclude emergency vehicles "inapplying a fuel economy standard under subsection (a), (b), (c), or(d) of this section," concerning Secretary’s decisions regardingaverage fuel-economy standards); id. § 32902(h)(3) (factorsSecretary may not consider "when prescribing a fuel economystandard" pursuant to subsections (c), (f), and (g), concerning the
17
local technology-based regulation does not bear aprohibited relationship to the preempted subjectmatter - the annual fuel-economy performancestandards for manufacturers - even if the regulationhas an impact on fuel economy. That is because theperformance standards mandate a level of compliancefor manufacturers, but not any particular enginetechnology for achieving compliance. Enginetechnology is just one of many design features thatmanufacturers may consider in complying with theirannual performance standards. Therefore, a localtechnology-based regulation does not relate to thoseperformance standards such that it is preempted underEPCA.
Not only are the Lease Cap Rules permissible underEPCA because they reflect a technology-basedstandard and not a miles-per-gallon standard, but theyalso escape preemption because they are an incentiveprogram rather than a mandate. As this Court hasrecognized in another preemption context, voluntaryincentive programs are "significantly different fromcommand-and-control regulation." EngineManufacturers Association v. South Coast Air Quality
setting and amendment of average fuel-economy standards); id.§ 32902(k)(3) (subsection (b)(1)(C) directs Secretary to prescribeaverage fuel-economy standards for larger commercial vehicles inaccordance with subsection (k), and subsection (k) refers to the"work truck fuel economy standard adopted pursuant to thissubsection").
18
Management District, 5’41 U.S. 246, 258 (2004). Thisdistinction applies with particular force when, as here,the federal statute at issue is intended to subjectbusinesses engaged in interstate commerce to uniformnational standards. See, e.g., New York StateConference of Blue Cross & Blue Shield Plans v.Travelers Insurance Co.., 514 U.S. 645, 656-57 (1995).This is because local incentives merely act as an"indirect economic influence" on the national marketand do not further regulate that market such that theuniformity of the federal scheme is disrupted. See id.at 659; California Division of Labor StandardsEnforcement v. Dillingham Construction, N.A., Inc.,519 U.S. 316, 334 (1997) ("We could not hold pre-empted a state law in an area of traditional stateregulation based on so tenuous a relation withoutdoing grave violence to our presumption that Congressintended nothing of the sort."). As we explain above,EPCA preempts only local regulations related to thefederal fuel-economy standards directed atmanufacturers. Thus, by providing an incentive ratherthan imposing a manufacturing or purchaserequirement, the Rules are neither related to EPCA’smanufacturer-focused fi~el-economy standards, nor dothey disrupt its manufacturer-focused program.
19
II. THE COURT BELOW SHOULD HAVEAPPLIED THE PRE SUMPTION AGAINSTPREEMPTION BECAUSE TAXICABREGUI~TIONS ARE AN EXERCISE OFTHE HISTORIC POLICE POWERS OFLOCAL GOVERNMENTS.
Were there any doubt about the language of EPCA’spreemption clause, the court below erred by notapplying the presumption against preemption."[W]hen the text of a pre-emption clause is susceptibleof more than one plausible reading, courts ordinarily’accept the reading that disfavors pre-emption.’" AltriaGroup, 129 S. Ct. at 543 (quoting Bates v. DowAgrosciences, LLC, 544 U.S. 431, 449 (2005)). This isa mainstay of this Court’s analysis when a claim ofpreemption is directed against the historic policepowers of state and local governments. See, e.g., Rice,331 U.S. at 230. Given this presumption, preemptionis proper only when "Congress has made such anintention clear and manifest." E.g., Bates, 544 U.S. at449 (citations and internal quotations omitted). Inparticular, this Court has cautioned that courts shouldnot take the preemptive phrase "relate to" to the"furthest stretch of indeterminacy, [because] then forall practical purposes pre-emption would never run itscourse .... [T]hat, of course, would be to readCongress’s words of limitation as mere sham, and toread the presumption against pre-emption out of the
20
law whenever Congress speaks to the matter withgenerality." Travelers, 514 U.S. at 655.
Local governments have traditionally regulatedtheir streets and transportation networks in order toprotect the general hea][th, safety, and welfare of theircitizens. Given this historic local regulatory power andthe lack of"clear and manifest" intention on the part ofCongress, the court of appeals should have rejectedpreemption. That result simultaneously honors thetext of EPCA’s preemption provision, preserves theability of local governments to regulate their streetsand transportation networks, and furthers EPCA’senergy-independence and national-security goals.
Local governments manage transportation topromote mobility, efficiency, safety, and air quality.Achieving these goals can be difficult in a complexurban system with many countervailing forces and amultitude of individual and institutional actors, socities must be creative and flexible as they attempt toalign market forces witlh socially beneficial outcomes.Such balancing is the tbundation of the police powerand is nowhere more important than in our dense,complex, diverse cities. This Court long ago recognizedthe importance of the police power for cities:
[O]perations offensive to the senses, thedeposit of powder, the application ofsteam power to propel cars, the building
21
with combustible materials, and theburial of the dead, may all beinterdicted by law, in the midst of densemasses of population, on the general andrational principle, that every personought so to use his property as not toinjure his neighbors; and that privateinterests must be made subservient tothe general interests of the community.
Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 62 (1872)(internal quotation marks omitted).
Local governments have regulated taxicabspursuant to their police powers for decades. See, e.g.,Buck, 343 U.S. at 102. More generally, local regulationand licensing of public transit and conveyances for hirehave an even longer history. See, e.g., Belle IsleRailway, 189 U.S. at 390 (electric streetcars); Fanningv. Gregoire, 57 U.S. (16 How.) 524, 534 (1853) (ferryboats); Gibbons v. Ogden, 22 U.S. (9 Wheat.) at 203("laws for regulating the internal commerce of a state,and those which respect turnpike roads, ferries, etc.,.¯ . remain subject to state legislation"). Local controlover the transportation network has long includedregulations addressing safety, air quality, and othersubjects within the retained police power. See, e.g.,Pacific Gas & Electric, 251 U.S. at 25-26 (regulatingstreet railways to suppress dust); Belle Isle Railway,189 U.S. at 390 (requiring railway to install safety
22
devices); New York, New Haven & Hartford RailroadCo. v. New York, 165 U.S. 628, 629 (1897) (prohibitingrailroads from heating passenger cars with internalstoves or heaters). In addition, local governments havea lengthy history of balancing competing uses of theirstreets and waterways to enhance the efficiency oftheir transportation networks and promote publicconvenience. See, e.g., Cincinnati, Indianapolis, &Western Railway Co. v. City of Connersville, 218 U.S.336, 340-41 (1910); Escanaba & Lake MichiganTransportation Co. v. City of Chicago, 107 U.S. 678,681 (1883); Gilman v. City of Philadelphia, 70 U.S. (3Wall.) 713,721-22 (186.5).
Local governments have adopted clean-taxicabincentive programs to promote air quality and increasethe efficiency of their transportation networks.Taxicabs serve a particular purpose in urban networks.Unlike most mass transJ[t trips, taxicabs can go directlyfrom door-to-door (and point-to-point in a multimodaljourney). And unlike most private vehicle trips,taxicab service does not require a parking space ateither end of the trip, which frees up building andstreet space for other uses, and can reduce pressure forprivate car ownership aad rentals. See generally PaulS. Dempsey, Taxi Industry Regulation, Deregulation, &Reregulation: the Paradox of Market Failure, 24Transp. L.J. 73, 117-18 (1996). Just as governmentinvolvement in mass transit is justified under a public-good theory, public-good and market-failure theories
23
also support traditional regulation of the taxicabindustry. See id. at 91-100. Air pollution is one suchmarket failure, or negative externality, that localgovernments have attempted to address through clean-taxicab incentive programs. See id. at 94-96.
In addition, taxicab incentive programs may helpreduce the disruptive effects of fluctuating fuel costs onthe taxicab market. In an era of volatile fuel prices, ataxicab fleet that relies upon diversified energy sourcesand maximizes energy efficiency may be better able toperform the unique functions for which urbantransportation networks rely on taxi service. NewYork City adopted its Lease Cap Rules to correct "astructural problem with the standard vehicle leasearrangement that artificially insulated fleet ownersfrom fuel costs" because drivers who lease theirvehicles bear the cost of fuel. Pet. 4. And, recognizingthe impact that fluctuating fuel costs have on the taximarket, Chicago allows taxi drivers to impose anadditional gasoline surcharge on all fares undercertain conditions and when gasoline prices exceed acertain threshold. See Municipal Code of Chicago, Ill.§ 9-112-510(e) (2010). Regulations of this sort mayserve to enhance the stability and efficiency of thetaxicab market as a whole by ensuring that the serviceproviders are adequately compensated when fuel pricesrise. See Dempsey, supra, 24 Transp. L.J. at 111-14(finding evidence of service deterioration and
24
inadequate vehicle upkeep when taxicab operators arenot adequately compensated).
Local governments also encourage clean-vehicle useby the general public. Local programs include taxincentives, sales rebates, parking incentives, high-occupancy vehicle ("HOV") lane exemptions, and a hostof other incentives for fuel-efficient or clean vehicles.Pet. 25-27. Such prog.cams support national energyindependence and reduce greenhouse gas emissions.Moreover, clean-vehicle incentive programs help citiesimprove local air qual
25
III. ALLOWING LOCAL GOVERNMENTS TOADOPT INNOVATIVE CLEAN-VEHICLEINCENTIVE PROGRAMS ADVANCESTHE GOALS OF EPCA.
Because Congress has not made its intent tosupplant state law clear and manifest, the settled ruleis that state and local governments remain free to act"in matters requiring diversity of treatment accordingto the special requirements of local conditions." MilkControl Board of Pennsylvania v. Eisenberg FarmProducts, 306 U.S. 346, 351 (1939). And "[o]ne of thecommonest forms of state action is the exercise of thepolice power directed to the control of local conditionsand exerted in the interest of the welfare of the state’scitizens." Ibid. "Some of these subjects call foruniform rules and national legislation; others can bebest regulated by rules and provisions suggested by thevarying circumstances of different localities, andlimited in their operation to such localitiesrespectively." Gilman, 70 U.S. (3 Wall.) at 726-27. Inshort, unique local conditions often require uniquelocal solutions, and local governments are often in thebest position to design and implement such solutions.
The management of local transportation networksrequires just this sort of "diversity of treatment"because of local conditions. Population centers varygreatly in their geography, weather conditions,density, built environments, mass transit options, and
26
transportation patterns.. These unique characteristicsaffect a city’s transportation network. For instance,cruising cabs, which drive around searching forpedestrians to hail them, are successful only in largercities with high population densities. See Dempsey,supra, 24 Transp. L.J. at 88. In other cities, a largerpercentage of the taxi fleet is radio-dispatched or relieson cabstands at airports or hotels. See id. Where cabsregularly cruise, regulators may choose to promoteengine technologies that allow easy refueling (likehybrid-electric vehicles that are powered primarily bygasoline or clean diesels, which both can be refueled atneighborhood gas stations). Where particularcabstands are more intensively used, on the otherhand, refueling infrastructure at these locations maysupport more speciali:zed engine technologies likecompressed natural gas or full-electric vehicles.
Cities also differ markedly with respect to the airquality impacts of their transportation networks. SaltLake City and Denver, for example, have temperatureinversions during the winter that combine with theirunique geographies to greatly increase the likelihoodof smog. There also may be more tourists usingtaxicabs during the winter. And cold weather mayprompt residents to shift from mass transit to moreenergy-intensive mode~ of travel. Local governmentsmust account for these and other seasonal trends whenattempting to reduce overall emissions from theirtransportation networks. Such local differences
27
require local solutions, and this variety can be a sourceof innovation that can benefit the entire country. Inaddition, local experimentation may help citiesmaintain or achieve compliance with federal air qualitystandards when reductions from other sources(stationary, area, and other mobile sources) are notsufficient. Taxicab regulations that provide incentivesfor emerging clean-engine technologies can be animportant part of these efforts.
Beyond this local need for local solutions, EPCA wasenacted to "decrease dependence on foreign imports,enhance national security, achieve the efficientutilization of scarce resources, and guarantee theavailability of domestic energy supplies at pricesconsumers can afford." S. Rep. No. 94-516, at 117,reprinted in 1975 U.S.C.C.A.N. 1956, 1957. Yet ourenormous dependence on automobiles and the energythat fuels them makes it unlikely that we can achievethese goals through federal performance standardsalone. Social and economic change in how our citiesand towns transport goods and people is alsonecessary. Because modern American cities requireextreme amounts of energy to keep running and theyhave long had to balance market forces with sociallybeneficial outcomes, they are the ideal level ofgovernment to test, refine, and inspire energy policiesthat may ultimately meet EPCA’s goals. It is difficultto predict what social and economic changes will bemost transformative or whether such change on a
28
national level is even possible, but one thing is clear -we are all poorer wher~ we do not allow our cities toinnovate and explore solutions without cost or risk tothe country, and only the possibility of gain.
Many local governments are only too happy to be oneof Justice Brandeis’s laboratories of innovation on thisand other intractable :problems. In fact, there is asense of fraternity and friendly rivalry among manyAmerican cities. We ]pay attention to each other’ssuccesses not only to replicate them, but also to out-dothem. We also pay attention to each other’s setbacksto avoid having similar problems. Several nationalorganizations, of which three are amici here, facilitatethe exchange of information about what works, whatdoes not work, and wl:Lat can be improved on. Butdecisions like that of the court below can chill even themost zealous experimenter. This is especially true intough economic times, when there is particularreluctance to pursue innovative policies withheightened litigation rJisks. Besides New York City,Boston, Dallas, and Ki~Lg County have also been suedfor their clean-vehicle taxi regulations. And onNovember 19, 2010, the Minneapolis City Councilunanimously passed the following resolution:
[T]he City of Minneapolis, in response tothe rulings in the City of New York caseand related litigation throughout thecountry, has halted the enforcement of its
29
taxicab fuel efficiency ordinancerequirements found in Minneapolis Codeof Ordinance (M.C.O.) § 341.300,originally adopted in 2006, and has beenunable to pursue new regulations aimedat incentivizing the utilization of fuelefficient and environmentally sustainabletaxicabs[.]
Resolution 2010R-570, available at http://www.ci.minneapolis.mn.us/council/archives/proceedi-ngs/2010/20101119-proceedings.pdf. Similarly, Seattlepassed an ordinance in 2008 authorizing rulesmandating vehicle size, fuel-efficiency, and emissionsrequirements for new taxicabs, but has not adoptedsuch rules in light of the rulings in this case.
Of course in our federal system, if preemption iswarranted based upon a close reading of the relevantstatute and applicable precedents, then that is theproper result. But, by the same token, preemption bya judicial decision that is untethered to the statutorylanguage and heedless of this Court’s carefullimitations on "related to" preemption is inappropriate.Moreover, it is a loss not only to the governmentinvolved, but to other cities that cannot replicate, fine-tune, or improve upon the original innovation; and itstifles other programs that might similarly be thoughtto run afoul of the statute.
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The decision below threatens to do just that. Theholding is so broad that local governments are hesitantto adopt clean-vehicle incentive programs with anyrelation, however incidental, to fuel economy. Thatdisabling decision should not stand. At a minimum,before it becomes law, it should be reviewed by thisCourt.
CONCLUSION
The petition for a writ of certiorari should begranted.
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Respectfully submitted,
MARA S. GEORGES
Corporation Counselof the City of Chicago
BENNA RUTH SOLOMON*
Deputy Corporation CounselDIANE M. PEZANOSKI
Deputy Corporation CounselMYRIAM ZRECZNY KASPER
Chief Assistant CorporationCounsel
GRAHAM G. MCCAHAN
Assistant Corporation Counsel30 N. LaSalle St., Suite 800Chicago, IL 60602(312) [email protected]
*Counsel of Record
December 9, 2010
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