Opposition Brief — City of New York v. Metropolitan Taxicab Board of Trade

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1 No. H-618

jn The

Supreme Court of the United States

CITY OF NEW YORK, et al.,

Petitioners,

METROPOLITAN TAXICAB

BOARD OF TRADE, et a/.,

Respondents

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

a ——___—— ¢@ —_-

BRIEF IN OPPOSITION

RICHARD D. EMERY

Counsel of Record

EMERY CELLI BRINCKERHOFF

& ABADY LLP

ELIZABETH S. SAYLOR

75 Rockefeller Plaza, 20th FI

New York, New York 10019

(212) 763-5000

remery@ecbalaw.com

Counsel for Respordents

January 24, 2011

COCKLE LAW BRIEF PRINTING CO (800) 225 64964

OR CALL COLLECT (402) 342.2831

QUESTION PRESENTED

Did the Second Circuit err when it affirmed a

preliminary injunction, holding that the preemption

provision of the Energy Policy and Conservation Act

likely prohibited adoption of taxi fleet vehicle rules

which were indistinguishable in purpose and effect

from predecessor regulations that petitioners con-

ceded were preempted under that statute — and which

the district court determined, after an evidentiary

hearing, imposed a “de facto mandate” that was

“essentially a command to taxicab owners to meet [a]

higher mpg standard”?

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

Respondents Metropolitan Taxicab Board of

Trade, Midtown Car Leasing Corp., Bath Cap. Corp,

Ronart Leasing Corp., Geid Cab Corp., Linden

Maintenance Corp., and Ann Taxi Inc. do not have

parent corporations and there is no publicly held

company that owns 10% or more of their stock.

il]

TABLE OF CONTENTS

Page

UIE BODEN BoE F S0E) osc evsesvccesendeccccsvencsecsagnnens i

CORPORATE DISCLOSURE STATEMENT PUR-

SUANT TO SUPREME COURT RULE 29.6 ...... il

py OR a ayy tg yt > ne nee Vv

Py BP ee BEG VU IRIY LOI ov iesinviccresivrnccnscessyeccresseseane I

SEAL EMEINE OF TEI: CASE.........cccccscscocssessccnvnses ]

iy: 5 Se a cok neat a vanbalatsiaes ss easel ten 1

B. The Enjoined and Rescinded First Vehicle

sd sc ak ons ccignieds yadda van sacee. sesretaeeaaanaiere 4

i, Re UNIS FOI sv viciicik cies desnseecccesccevecees 5

D. The Second Preliminary Injunction Motion .... 8

E. The District Court’s Ruling ................0........2.. 9

F. The Second Circuit’s Ruling ........................... 12

REASONS FOR DENYING THE PETITION ....... 14

I THE SECOND CIRCUIT'S INTERPRE-

TATION OF EPCA’S PREEMPTION PRO-

VISION IS CORRECT AND DOES NOT

CONFLICT WITH THE DECISION OF

PAE SF Te ARTE wi vey sexstcciashrresnnetes 16

A. The Decision Is Fully Consistent With

Governing Law and Does Not Even

Colorably Conflict With The Decision

OE Pee CUO GANAIE os i coocesisecsicorscecrcess a

B. The Second Circuit Correctly Decided

The Preemption Question This Case

PROCURITY PPOGOTIAG o..0a cen decccscecscescscwneeysses 21

IT]

TABLE OF CONTENTS — Continued

Page

THIS IS NOT A REMOTELY APPROPRI-

ATE CASE TO SETTLE GENERAL

RULES CONCERNING EPCA PREEMP-

SIR Tts ls ecaitccs dusted pbadsuatseqecbesaiaevatesceoes taaneehs

THERE IS NO URGENT NEED FOR

THIS COURT'S “IMMEDIATE INTER-

TED seccdcincssesns

CONCLUSION ...

30

34

38

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Aetna Life Ins. Co. of Hartford, Conn. v. Ha-

WOOFER, DOS U.S. B27 (1GST) nceccesccsccsescrsevorsescseccreseoncte

Am. Auto. Mfrs. Ass’n v. Cahill, 152 F.3d 196

Ge Rt RI aatebtnesncroryerte ere ANE AP erin mime eronrnpe eee 32

Associated Builders & Contractors v. Mich.

Dep't of Labor & Econ. Growth, 543 F.3d 275

ee se eee eS EO 19

Association of Taxicab Operators, USA v. City

of Dallas, No. 3:10-CV-769-K, 2010 WL

5584449 (N.D. Tex. Aug. 30, 2010)..................c00000 0

Bilski v. Kappos, 130 S. Ct. 3218 (2010) .......0..ccccc00.. 27

Jal. Div. of Labor Standards Enforcement v.

Dillingham Constr, N.A., Inc., 519 U.S. 316

Pf RE Rat emp rette Ore ae nae REET 13, 14, 18

Chevron U.S.A. Inc. v. Natural Res. Def. Coun-

CBR TI, BE CE TR Ce ecacacacccnscctccesecesescccccccnss 24

Cohens v. Virginia, 19 U.S. 264 (1821)..........00.00000... 22

Ctr. for Auto Safety v. Thomas, 847 F.2d 843

(D.C. Cir. 1988), vacated on other grounds,

Oe ee ee CR, GE, BO io niicccdnacessecsssencsencessses 25

Dist. of Columbia v. Greater Wash. Bd. of

EPS, GO US. TZ CAGED viv vesicévcdevaicsevsiecnnssivavsxces 19

Engine Manufacturers Ass'n v. South Coast Air

Quality Management District, 541 U.S. 246

SET iincchvenurduiatenlinteasevesatanuaccmedumuusecunteceutderan passim

Vi

TABLE OF AUTHORITIES — Continued

Page

Engine Mfrs. Ass’n v. U.S. EPA, 88 F.3d 1075

A UR ——__ERIRRRIDS NE a Cer eng Pe On OD 29

FMC Corp. v. Holliday, 498 U.S. 52 (1990)............... 26

Food and Drug Admin. v. Brown & Williamson

Tobacco Corp., 529 U.S. 120 (2000).................0... 27

Gade v. Natl Solid Wastes Mgm’t Ass'n, 505

RP ee SE MeN crehonaccnaccavencsvsvscincnesessensenesoust aapeeacnca

Geter v. Am. Honda Motor Co., Inc., 529 U.S

Be RD ccccdcsccuevcnceacccocosne: icesleusandsccawnenssh 29

Golden Gate Rest. Assoc. v. City and County of

S.F., 546 F.3d 639 (9th Cir. 2008).................. 20

Golden State Transit Corp. v. City of L.A., 475

ie MI IIE ccc ccévenabasesecsarsevsons “ 29

Green Alliance Taxicab Assoc. v. King County, No

CO8-1048RA,!, 2010 WL 2643369 (W.D. Wash

BE Bs HD aeccsccesscdensescpencvesceess: 37

Green Mountain Chrysler Plymouth Dodge Jeep

Ceombie, 508 fF. Supp. 2d 295 (D. Vt. 2007).....27, 29

Hughes v. Alexandria Scrap Corp., 426 U.S

794 (1976)........... ree 36

Lane v. Wilson, 307 U.S. 268 (1939) 21

Massachusetts v. E.PA., 549 U.S. 497 (2007) 27

Metro. Taxicab Bd. of Trade v. City of New

York, No. 08-7837, 2008 WL 4866021

(S.D.N_Y. Oct. 31, 2008)..... 0, 29,

ad

TABLE OF AUTHORITIES — Continued

Page

N.Y. State Conference of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co., 514 U.S.

G45 (LOGS) ...cccecscsnnetneeeees ae passim

Ophir v. City of Boston, 647 F. Supp. 2d 86 (D

i : PI}

Nia88. BOOB) vvvsccccscale a | re 37

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41

CEOS T ) ..ccccocccnacceseeneeneeeeenaaane 27

Retailer Indus. Leaders Ass’n v. Fielder. 475

I 3d 180 (4th Cir. 2007) ....... 19

Texas v. Hopwood, 518 U.S. 1033 (1996) 24

Travelers Indem. Co. uv. Bailey, 129 S. Ct. 2195

(ZOOS) q keccoccccccucenteeneee z 2/

United States 1 Locke, 529 U.S. 89 (2000) 20

United States v. Price, 361 U.S. 304 (1960) 27

United States v. Williams, 184 F.3d 666 (7th

Cir. 1999) +"

STATUTES AND RULES

42 U.S.C. § 7410 Ze

42 U.S.C. § 7543(a), (d) 1, 5, 32. 36

42 U.S.C. 8§ 7581-7590 . 33

42 U.S.C. § 7586 . . 28

12 U.S.C. § 13235(a) 28

49 U.S.C. § 32919(a), (c) 5. 36

TABLE OF AUTHORITI Continued

Rule UO! Le Lit Ol Ne YO! |

{Mla No ‘

Rule of the (if if Ne f

O3(c)( 10) 1]

Kk, Gre man. Supreme f

ed. 2009

PROVISIONS INVOLVED

In addition to Energy Policy and Conservation

Act (“EPCA”) provision and the challenged rules set

forth in the petition (Pet. 1-2), the rescinded prede-

cessor to the challenged rules and the Clean Air Act’s

(“CAA”) preemption provision are also relevant to this

action:

Rules of the City of New York tit. 35 § 3-

03(c)10)-(11) (JA31-32)

42 U.S.C. § 7543(a)

No State or any political subdivision thereof

shall adopt or attempt to enforce any stand

ard relating to the control of emissions from

new motor vehicles or new motor vehicle en-

gines

—-.-- - @

STATEMENT OF THE CASE

A. INTRODUCTION

Petitioners and amici seek review of the Second

Circuit’s decision in order to decide the limits EPCA’s

express preemption provision imposes on programs at

the state and local level that provide incentives to

purchase more fuel efficient automobiles. But peti

tioners freely concede that no other court of appeals

has decided that question, let alone done so in a

manner that even allegedly conflicts with the decision

below. indeed, no appellate court has construed

EPCA’s preemption provision (and no district court

has invalidated an incentive

In fact, the question whether EPCA preempts

incentives is not at issue in this case. The district

court enjoined the challenged rules (“Replacement

Rules”) after determining that they were indistin-

guishable in purpose and effect from predecessor

rules (“Rescinded Rules” or “25/30 MPG Rules”)

which had explicitly mandated the purchase of vehi

» |

cles with a fuel economy rating of at least 25 miles

per gallon (“mpg”). Petitioners have now expressly

conceded that the Rescinded Rules were preempted

under EPCA. The district court held that the Replace-

ment Rules amounted to a de facto mandate and that

the differences between the two sets of rules reflected

only “procedural maneuvering” and “creative draft

ing.” The court also found pretextual petitioners’

assertion that the Replacement Rules were “police

power regulations aimed at adjusting driver in

COmMme

Although the Second Circuit decision affirming

preliminary relief did not rely on the de facto man

date finding — concluding instead that the Replace

ment Rules were preempted because they referenced

fuel economy standards — the Second Circuit did not

overturn or question that finding. (Nor did it disturb

the district court’s holding that the Replacement

Rules were also preempted by the CAA.) The court

even highlighted that petitioners continue to operate

incentives for hybrid taxis, without any suggestion of

disapproval

Petitioners’ assertions that the Second Circuit

struck down all incentive programs therefore depend

on an unsupported reading of the decision that is

utterly abstracted from the facts and procedural

history of this case. As is clear from the decision

below — and as other courts have had no difficulty

recognizing — the Second Circuit did not invalidate all

incentives or purport to. Far from taking preemption

to the furthest reaches, the court’s decision stands for

the unremarkable proposition that a Jocal rule that is

concededly preempted may not be revived by re-

drafting it to omit particular words. No principle of

preemption law would support a different conclusion.

Petitioners and amici primaniy criticize what

they take to be the Second Circuit’s reasoning, pre-

dicting that the reasoning will lead to undesirable

effects. This Court, however, reviews judgments — not

opinions. In any event, those criticisms Jack merit.

The Second Circuit applied settled principles. Indeed,

it is the petitioners’ account that neglects the text and

purpose of the preemption provision.

Notably, petitioners do not ask the Court to

review or overturn the judgment in this case on either

of the grounds it was issued — EPCA or CAA. The

only relief requested 1s a remand for the court of

appeals to determine whether the district court

committed clear error when it held that the Replace-

ment Rules “effectively mandate” the purchase of fuel

efficient vehicles. (Petitioners have conceded that an

“effective mandate” is preempted.) A decision by this

Court therefore would be essentially advisory.

Even if the Court were persuaded of the need to

address the complex, novel and abstract question

purportedly presented without any further develop-

ment in the lower courts, the singular facts and

circumstances of this case would make it an obviously

inappropriate occasion for doing so. The Court should

await a case involving preemption of what the parties

agree is (or the Court at least ‘viewed as) a simple

incentive. Consideration of this case also likely would

require deciding the significance of “circumvention”

and post-injunction reenactment, as well as_ the

significance of the fact that petitioners expressly

conceded that the Rescinded Rules were preempted.

Given the multiplicity of different and difficult case-

specific issues raised, the prospect that the Court

could or would reach the larger questions here, let

alone “bring clarity,” is infinitesimal.

B. THE ENJOINED AND RESCINDED FIRST

VEHICLE RULES

In December 2007, the New York City Taxi &

Limousine Commission (“TLC”), citing the City’s

interest in reducing air pollution and dependence on

fossil fuel, adopted rules requiring that all newly

purchased fleet taxis have a minimum “city” fuel

economy rating of 25 mpg by October 1, 2008 and

a min.:mum rating of 30 mpg by October 1, 2009.

Prior to that, the City had never set fuel economy or

emissions standards for taxi fleets. The only vehicles

qualifying under the 25/30 MPG Rules were ones

with hybrid or “clean diesel” engines.’

Respondents, owners and an owners’ trade group,

brought suit contending, among other things, that the

25/30 MPG Rules violated the EPCA preemption

provision, which prohibits localities from adopting

laws “related to fuel economy standards or average

fuel economy standards for automobiles,” 49 U.S.C.

§ 32919(a), as well as the preemption provision of the

CAA, 42 U.S.C. § 7543(a).

The district court agreed with plaintiffs, granting

preliminary injunctive relief. Metro. Taxicab Bd. of

Trade v. City of New York, No. 08-7837, 2008 WL

4866021 (S.D.N.Y. Oct. 31, 2008) (““MTBOT I”). The

City did not appeal that ruling, and it has conceded

that the 25/30 MPG Rules were preempted. App. 56a;

JA661.

C. THE REPLACEMENT RULES

Within months of the district court’s decision, the

TLC announced an ostensibly “new” set of rules,

which, rather than mandating that owners purchase

the high-mpg taxis, instead relied on “incentives” and

“disincentives” to “induce” (JA99) them to do so. Rules

1 - - . .

Because almost all the qualifying vehicles were hybrids,

that term is used here, as in the opinion below, to encompass

those with “clean diesel” engines

6

of the City of New York tit. 35 § 1-78(a)(3) (“Replace-

ment Rules”). Specifically, the Replacement Rules set

the maximum lease rate fleet owners could charge

drivers for the disfavored vehicle types at $30 per day

below that for vehicles that met the fuel efficiency

criteria. (This disparity resulted from a $12-per-shift

reduction for those leasing out conventionally-

powered vehicles and a $3 increase for those purchas

ing — and leasing — hybrids. Only the $12 penalty was

challenged.)

Adoption of this regime required the TLC to

rescind its own longstanding rule against “lowerling

any upper limitation of lease rates ... unless ... the

record ... includes substantial evidence of reduced

operating expenses of the affected medallion owners.”

JA58-59 (rescinded § 1-78(e)). The TLC conceded it

did not consider owners’ costs in reducing these rates,

and the only evidence before the Commission showed

increased costs.”

* At the same time the TLC imposed this lease cap reduc

tion, it also reduced the cap for all vehicles by shifting the cost of

sales taxes from drivers to owners. Respondents challenged both

actions in state court, alleging that failure to consider cost when

setting rates contravenes state law. That claim did not succeed

in the lower courts, but the New York Court of Appeals recently

granted review to decide, tnter alia, whether “a government

regulatory agency charged with setting rates [may] do so

without any regard to the costs borne by the companies it

regulates?” Metro. Taxicab Bd. of Trade v. Taxi and Limousine

Comm’n, No. 110594/09. On account of the federal court’s

injunction, the Rescinded Rules are no longer directly at issue in

(Continued on following page)

Nor, for that matter, was concern for costs to

drivers a significant impetus. Months earlier (when

gas prices hovered at historic highs and fleets were

almost uniformly comprised of fuel-hungry Ford

Crown Victoria sedans), the TLC had refused drivers’

request for a gas surcharge, on the ground that the

existing lease rates already “met and surpassed” its

“goal of creating a living wage for drivers.” JA501.

Rather, as City officials repeatedly emphasized,

the “‘goal’” of the Replacement Rules remained what

it had been “‘from the beginning’” “‘to get fuel effi-

cient taxis on the road using whatever appropriate

methods required.’” App. 17a (quoting press release).

As with their predecessor, the Replacement Rules’

stated “|nlumber one” purpose was “to promote

hybrids and cleaner vehicles.” JA145. The City de-

«“e ”

scribed the Replacement Rules as “‘another way’” to

reach the same goal and as a means to overcome the

““‘speed bump’” the district court’s preemption deci-

sion represented. App. 18a, 17a (quoting press re-

lease). While the Replacement Rules removed the

explicit reference to “miles per gallon,” their avowed

purpose was to “induce” (JA99) the same result, and

precisely the same vehicles that had been required

(and prohibited) under the prior regime were subject

to “incentives” and “disincentives” under the new one.

App. lla, 57a.

that proceeding. A favorable decision, however, would likely

invalidate them.

8

D. THE SECOND PRELIMINARY INJUNCTION

MOTION

Respondents amended their complaint, claiming

that the Replacement Rules were not meaningfully

different from the ones they replaced and were there-

fore preempted.

After initial brefing and oral argument, the

district court conducted an evidentiary hearing

to determine “whether the new lease cap rules pro-

vide ‘meaningful alternatives’ to taxicab owners or

whether the rules leave owners with only one ‘ra-

tional choice.” JA12 (citation omitted). In response,

plaintiffs presented testimony of three experts, in-

cluding James Levinsohn, a University of Michigan

economist, who had undertaken a_ sophisticated

economic analysis of how owners’ profits would be

affected by the Replacement Rules.

Levinsohn concluded that the “choices” offered

owners under the Replacement Rules were illusory.

One fleet, he explained, would earn only $581 per

year per Crown Victoria taxi but more than $7,000

(12 times more) were it to purchase a hybrid. Another

fleet would face a “choice” between losing $2,241

annually per Crown Victoria or a $3,258 profit per

hybrid. Using highly conservative assumptions,

Levinsohn determined that owners who continued to

operate Crown Victorias would suffer, at a minimum,

a 65 to 75% decline in profits.

Petitioners presented two experts who took issue

with Levinsohn’s conclusion — on conceptual, rather

9

than empirical grounds. (Neither had conducted an

independent economic analysis.) They maintained

that so Jong as a fleet operator could make even $1

leasing the disfavored vehicles, the Replacement

Rules should not be described as an “effective man-

date” to purchase fuel-efficient vehicles.

E. THE DISTRICT COURT’S RULING

On June 22, 2009, the district court issued a 50-

page opinion and order granting preliminary injunc-

tive relief. App. 14a-65a. The court began by under-

scoring that the case did not concern whether the

City could mandate the purchase of taxis that meet

certain mileage or emissions standards — because “the

City has conceded that it [could not].” /d. 20a. Nor,

the court continued, was it about “whether New York

City can incentivize the purchase of certain types of

taxicabs,” noting three such regulations that had

been implemented without challenge: (1) a 2003 rule

limiting certain new taxi licenses to hybrids; (2) a

2006 rule extending the service life of hybrid taxis

from three to five years; and (3) the $3 per-shift

increase adopted along with the challenged $12

penalty. App. 20a. The district court reiterated its

view that the central issue was whether “the new

lease cap regulations have the preempted effect of

mandating that taxicab owners purchase only taxi-

cabs with hybrid or clean diesel engines.” /d. 20a.

After examining the relevant caselaw, the court

explained that under both EPCA and CAA, a local

10

law is preempted if, inter alia, it “effectively man-

dates a specific, preempted outcome.” /d. 40a. Reject-

ing “the City’s argument that any rate structure that

yields more than $1 in profit does not ‘compel’ or

mandate a result” (id. 51a), the court found that the

Replacement Rules “effectively force Fleet Owners to

purchase hybrid taxicabs” (1d. 65a). The district court

explained:

The combined effect of the lease cap changes,

and even the disincentive alone, constitutes

an offer which cannot, in practical effect, be

refused. ... Looking at all the evidence, it is

clear to the Court that the Lease Cap Rules

do not present viable options for Fleet Own-

ers and instead operate as an effective man-

date to switch to hybrid vehicles.

Id. 49a, 52a.

The court also viewed the “TLC’s procedural

maneuvering” as evidence that it “intended” to com-

pel owners to purchase hybrids. Jd. 50a. The district

court underscored, inter alia: (1) that the Replace-

ment Rules would have been impermissible under the

TLC’s own longstanding rules tying lease cap changes

to operating costs; (2) that the City’s expert admitted

that he had never seen a ratemaking regime that did

not require the regulatory agency to consider costs;

and (3) that by reducing lease rates to reflect a cost

that owners had never borne, the Replacement Rules

amounted to “an immediate penalty for continuing to

use the same vehicle [Crown Victoria] that the City

mandated within this decade.” Jd. 29a, 49a.

1]

The history of the case and the public statements

of New York City’s Mayor and other officials also

reinforced the court’s conclusion that the purpose of

the Replacement Rules was to mandate hybrids. Jd.

15a-22a (quoting officials’ statements at length). And

the court also cast doubt on the City’s assertion that

the Replacement Rules were concerned with equaliz-

ing driver income, noting both the TLC’s recent

rejection of a fuel surcharge (id. 28a n.9), and the

testimony of plaintiffs’ expert as to ways the new

regime would contribute to, rather than alleviate,

income disparities among drivers."

After determining that the Replacement Rules

are a de facto mandate to purchase hybrids, the

district court turned to the questions of whether the

Replacement Rules are “related to” fuel economy

standards under the EPCA and to the control of

emissions under the CAA. /d. 22a. The court held

that the absence of a textual reference to mileage in

the Replacement Rules was merely a result of “crea-

tive drafting.” Jd. 58a. The district court relied pri-

marily on four facts in reaching this conclusion:

* For example, under the Replacement Rules, the 26 mpg

hybrid Malibu garners a $15 higher lease rate than the 22 mpg

gasoline-powered Ford Transit Connect, even though the actual

gas savings are less than $3. (Respondents had agreed to stop

purchasing the Crown Victoria if the TLC would approve for use

the Transit Connect, a relatively “clean” vehicle that Ford

recently developed for the taxi market. Petitioners would not

approve the Transit Connect because it is rated at less than 25

mpg.)

12

(1) “All of the TLC-approved hybrids or clean diesel

vehicles are rated 25 mpg or higher,” and “[t]hese are

the same vehicles that the TLC approved under the

preempted 25/30 Rules” (id. 57a); (2) one of the stated

purposes of the Replacement Rules in the City Record

“was to allow taxi owners who choose ‘a fuel efficient’

vehicle to realize greater lease income than owners

who choose “a less efficient vehicle,’” (zd. 58a); (3) “the

exact amount of the disincentive |was| based on a

calculation of miles per gallon,” (id.); and (4) the TLC

Chair had stated, “‘Our goal from the beginning was

to get fuel efficient taxis on the road using whatever

appropriate methods required to achieve our goal.’”

Id. (emphasis added by the court).

Based on this evidence, the district court con-

cluded that respondents were likely to succeed in

showing that the Replacement Rules are preempted

as “related to” fuel economy standards under the

EPCA. Id. 56a. Relying on the stated purpose of the

Replacement Rules, their practical effect, and peti-

tioners’ public statements, the court also held that

respondents were likely to succeed on their CAA

preemption claim. /d. 61a-64a.

F. THE SECOND CIRCUIT’S RULING

The court of appeals affirmed. Jd. la-13a. The

court began by setting forth the history of the case,

explaining that the Replacement Rules were adopted

in the immediate aftermath of the decision holding

the 25/30 MPG Rule preempted. /d. 3a-5a. The court

13

underscored that the case concerned only the $12

reduction — not the $3 incentive. Jd. 5a. The Second

Circuit also noted that the City did not contest the

record evidence showing that the Replacement Rules

would lower profits by 65% to 75% on each Crown

Victoria. /d. 5a, 6a.

The court then set forth the applicable legal

framework, stating that because preemption claims

“‘turn on Congress’s intent,’” courts start “‘with the

text’” of a preemption provision and “‘move on, as

need be, to the structure and purpose of the Act in

which it occurs.’” Jd. 8a (quoting N.Y. State Confer-

ence of Blue Cross & Blue Shield Plans v. Travelers

Ins. Co., 514 U.S. 645, 655 (1995)). To interpret the

term “related to” in the EPCA preemption provision,

the court of appeals looked to this Court’s decisions in

ERISA preemption cases, because that statute also

displaces state and local laws “related to” the subject

of federal law. App. 8a. Quoting from California

Division of Labor Standards Enforcement v. Dilling

ham Construction, N.A., Inc., 519 U.S. 316, 324-25

(1997), the court of appeals held that determining

“whether a state law relates to a preempted subject

matter requires examining whether the challenged

law contains a ‘reference’ to the preempted subject

matter or makes the existence of the preempted

subject matter ‘essential to the law’s operation.’” App.

8a (quoting 519 U.S. at 324-25). If the law does

neither, it may still be preempted if it “contains

requirements that amount[]} to connection[s] with the

preempted subject matter.” App. 8a n.4 (quoting

14

Dillingham, 519 U.S. at 328 and Travelers, 514 U.S.

at 658) (internal quotations omitted; alterations in

original).

Under these standards, the court of appeals held

the Replacement Rules were preempted because they

“directly reference fuel economy standards” and thus

“directly regulate the relevant preempted subject

matter.” App. lla-12a. The court held that in the

context of this case “‘hybrid’ is simply a proxy for

‘greater fuel efficiency.’” Jd. lla. In support of that

conclusion, the court noted, inter alia, that: (1) the

City’s list of approved vehicles under the “new” rules

was identical to the one under the enjoined and

concededly invalid 25/30 MPG Rules; and (2) the City

admitted that the Replacement Rules were intended

to improve fuel economy. /d. 10a-1la.

Because this conclusion was sufficient to affirm

the district court’s decision, the court found it unnec

essary to explore the economic impact of the Re-

placement Rules, or reach CAA preemption. Jd. 1la-

12a. The court did not, however, question the district

court’s “effective mandate” finding or its CAA

preemption conclusion.

REASONS FOR DENYING THE PETITION

The Second Circuit’s decision, affirming a grant

of preliminary injunction, does not warrant further

review. It does not conflict with the decision of any

circuit court or any precedent of this Court. Indeed,

15

petitioners concede that no other appellate decision

has even interpreted the provision at issue.

Notably, petitioners do not ask this Court to

overturn the judgment of the court of appeals. They

ask only that this Court remand the case so that the

court of appeals can decide whether the Replacement

Rules amount to an effective mandate. But the dis-

trict court already found, after an evidentiary hear-

ing, that the Replacement Rules are a de facto

mandate and that they are substantively identical to

the Rescinded Rules that the City has conceded are

preempted. Petitioners’ claim relies on a conundrum

and would require that this Court accept that Con-

gress meant to allow localities to adopt regulations

that are essentially identical, in both purpose and

effect, to ones concededly preempted under federal

law. And even a decision in petitioners’ favor on that

improbable claim would be of entirely academic

significance — unless they could further persuade the

court below to overturn the district court’s factual

findings and to reverse its conclusion that respond-

ents were likely to succeed on an independent basis

that petitioners do not ask the Court to consider.

As other courts have grasped, the Second Cir-

cuit’s interlocutory decision here simply did not

announce — and did not purport to announce — the

sort of sweeping, categorical rule petitioners and

amici ascribe. Their exaggerated criticisms betray a

basic unfamiliarity with this case’s actual facts and

procedural history. Claims that this decision places

“at risk” measures that are neither “proxies” for fuel

L6

economy regulation nor “effective mandates” simply

ignore that both defects were found here. Indeed, to

the extent there develops a genuine need for this

Court’s guidance as to the limits, if any, EPCA places

on local government efforts to adopt genuinely volun-

tary incentive measures, this case represents an

especially inappropriate occasion to provide it

I THE SECOND CIRCUIT’S INTERPRETA-

TION OF EPCA’S PREEMPTION PRO-

VISION IS CORRECT AND DOES NOT

CONFLICT WITH THE DECISION OF ANY

OTHER COURT

A. The Decision Is Fully Consistent With

Governing Law and Does Not Even

Colorably Conflict With The Decision

of Any Other Court

Petitioners do not even allege a decisional conflict

as to the meaning of the EPCA provision they ask the

Court to decide. On the contrary, the petition candidly

acknowledges that “the Second Circuit is the first

federal court of appeals [even] to interpret the EPCA

preemption provision.” Pet. 29. Indeed, not only has

the development of EPCA preemption law so far been

limited to the district court level, but the handful of

courts to consider incentives have upheld them (after

expressly distinguishing this case). Infra III]. Al-

though this Court does not strictly confine exercise of

its certiorari jurisdiction to questions that have

divided appellate courts, the prospect of its being in

the vanguard of “a new area of developing law” (Pet.

17

29), is ordinarily a strong reason against, rather than

in favor of, review.

Unable to identify any circuit split (or appellate

authority of any kind) involving the EPCA provision,

petitioners posit a “conflict” between the decision here

and “the framework of analysis employed by” other

circuits interpreting ERISA’s preemption provision,

which also uses the phrase “related to.” Jd. 9; see also

id. 8, 9 (accusing Second Circuit decision of “non-

adherence with this Court’s jurisprudence” to a

“degree that should not be tolerated”).

There is obvious, unexplored, tension between

petitioners’ criticism of the court for relying overly

on text at the expense of statutory purpose and

their claims of “conflict” with decisions involving an

entirely different (though similarly-worded) federal

statute. In any event, petitioners’ claims of “analyt-

ical framework” conflict — not to mention their sug-

gestion of judicial impudence — are entirely without

merit.

One of the supposedly “conflicting” circuit court

ERISA decisions held that the challenged measure

was preempted. And the two that found no preemp-

tion did not sustain a measure (1) that was adjudged

only cosmetically different from a predecessor conced-

ed to be preempted; or (2) found by a court to be a “de

facto mandate” — let alone both, as is the case here.

The decision here set forth the same legal stan-

dards as does the petition. The court of appeals stated

“

‘turn on Congress’s

that because preemption claims

18

‘

intent,” its inquiry must start “‘with the text’” and

““move on, as need be, to the structure and purpose

of the Act in which it occurs.’” App. 8a (quoting

Travelers, 514 U.S. at 655). To determine the meaning

of “related to” in EPCA’s preemption provision, the

court looked to this Court’s ERISA preemption deci

sions in Dillingham and Travelers — the same princi-

pal ones relied upon by petitioners.

Indeed, the decision carefully hewed to the

“analytical framework” set out in Dillingham for

determining “related to” preemption: state law is

displaced “if it [1] has a connection with or [2] refer-

ence to” the federally regulated subject matter. 519

U.S. at 324 (alteration in original; internal quotation

marks and citations omitted). Cf. Sup. Ct. R. 10. (“A

petition for a writ of certiorari is rarely granted when

the asserted error consists of... the misapplication of

a properly stated rule of law.”).

The court of appeals here concluded that the

Replacement Rules were preempted because they

“reference” fuel economy standards that is, they

rely on the distinction between hybrid and non-hybrid

vehicles that, under these circumstances, was a mere

proxy for fuel-economy standards. App. Ya-lla. Sce

Dillingham, 519 U.S. at 325 (A law has an impermis-

sible “reference” to a preempted subject matter when

the law “acts immediately and exclusively” in the

preempted area or “where the existence of [the

preempted subject matter) is essential to the law’s

operation”).

19

Because the Replacement Rules failed under the

“reference” prong, the court did not need to determine

whether the Replacement Rules also suffered from

an impermissible “connection with” fuel economy

standards (or whether, as the district court held,

they were also unenforceable under the CAA). See

Travelers, 514 U.S. at 668 (a law that makes no

prohibited reference is nonetheless preempted if it

“produce|s] such acute, albeit indirect, economic

effects, by intent or otherwise, as to force an ERISA

plan to adopt a certain scheme”).

Neither this result nor the reasoning conflicts in

the least with the Fourth, Sixth, and Ninth Circuit

decisions the petition cites. Although each of these

“determine|d] whether the challenged laws man-

dated, or effectively mandated, something within the

area that Congress intended to exclusively control”

(Pet. 18), this Court has nowhere suggested, let alone

“required” (id. 16), that the two prongs of ERISA

preemption be considered in any particular sequence,

or that both be considered in every case. See Dist. of

Columbia v. Greater Wash. Bd. of Trade, 506 U.S.

125, 130 (1992) (holding law that “specifically re-

fer[red] to welfare benefit plans regulated by ERISA”

preempted “on that basis alone”); Retailer Indus.

Leaders Ass’n v. Fielder, 475 F.3d 180, 193 n.2 (4th

Cir. 2007) (declining to reach the “reference to”

preemption claim because it had already found an

impermissible “connection with” the preempted area);

Associated Builders & Contractors v. Mich. Dep't of

Labor & Econ. Growth, 543 F.3d 275, 281 (6th Cir.

20

2008) (noting parties’ agreement as to no “reference”

and therefore considering only “connection” issue); cf.

Golden Gate Rest. Assoc. v. City and County of S.F,

546 F.3d 639 (9th Cir. 2008) (holding challenged law

not preempted after exonerating it under both

prongs).

Thus, the Second Circuit’s “faillure|” to reach

whether the Replacement Rules constituted an effec-

tive mandate — after it had already found preemption

due to the impermissible “reference” — could not

possibly be described as error. See Pet. 19.

Of course, petitioners’ unsupported claim as to

how the Second Circuit “should have” structured its

preemption analysis (id. 19) is all the more startling

given the circumstances of this case. The district

court had made extensive findings, after an eviden-

tiary hearing, that these Replacement Rules do

“effectively mandate the use of taxicabs with a cer

tain mpg rating.” App. 59a.

Notably, petitioners do not ask this Court to

review that determination, which was the basis for

the district court’s judgment and was not disturbed

on appeal. The only relief petitioners ask from this

Court is a remand for the court of appeals to decide

whether the district court committed clear error. This

is one of many reasons that a decision of this Court in

petitioners’ favor would be of scant practical signifi-

cance.

21

B. The Second Circuit Correctly Decided

The Preemption Question This Case

Actually Presents

Petitioners and amici offer an array of discon-

nected criticisms of the Second Circuit’s opinion

below. Petitioners complain that the court of appeals

erred in “examinl[ing] only the text of the provision in

question” and did not take sufficient account of

legislative purpose, the “nature of the effect of the

[Replacement Rules],” or the “presumption against

preemption.” Pet. 10-11.

These abstract claims fail on their own terms,

but in this case, all arguments against preemption

quickly reach the same dead end: the fact that the

regulations at issue are identical in purpose and

effect to ones petitioners expressly conceded were

preempted under EPCA. Nothing petitioners and

amici say (or could say) about the text or purpose of

EPCA, or preemption law generally, explains why

Congress would have intended that states and locali-

ties be able to re-adopt and enforce the very same

measures held properly preempted (and enjoined). In

providing for preemption, Congress presumably was

concerned about matters of substance, rather than

the draftsmanship of local regulations, and may be

expected to be especially disapproving of efforts to

circumvent the effect of its own preemption man-

dates, particularly if done in response to a valid

federal court order. Cf. Lane v. Wilson, 307 U.S. 268,

275 (1939) (regime revised in response to prior deci-

sion “partakels] too much of the infirmity of the

ye

[previously invalidated regime] to be able to sur-

vive”). And in considering the “nature of the effect” of

the challenged rules, the court below necessarily

recognized this central fact. A contrary ruling in this

case would permit the City (and all cities) to evade

congressionally-intended preemption simply through

“creative drafting.” See App. 58a.

Petitioners and their amici’s extravagant claims

about the error and importance of the decision here

disregard the actual facts and procedural history of

this case. The decision did not hold — or suggest

that local laws are preempted “whenever [they] rely

on a distinction between hybrid and non-hybrid

vehicles.” See Pet. 8 (emphasis added). The court’s

conclusion that hybrid is a proxy for fuel efficiency

standards was “for purposes of the new rules.” App.

10a (emphasis added). See Cohens v. Virginia, 19 U.S.

264, 399 (1821) (“General expressions, in every opin-

ion, are to be taken in connection with the case in

which those expressions are used.”). As both courts

recognized, every vehicle listed for “incentives” under

the Replacement Rules has at least a 25 mpg rating,

and every vehicle penalized has a less-than-25 mpg

rating. App. lla, 57a. As the district court explained,

this was no coincidence. The $15 lease rate differen-

tial was itself derived from a mpg calculation. Jd. 58a.

And petitioners’ public statements, as well as the

history of the litigation, made clear that the Re-

placement Rules’ purpose was to effectively mandate

the purchase of vehicles meeting the fuel economy

standards set in the Rescinded Rules. Jd. 15a-22a.

23

Given that the Replacement Rules favor the exact same

vehicles that were mandated under the concededly-

preempted 25/30 MPG Rules, the court’s holding that

the Replacement Rules impermissibly “referenced”

fuel economy standards is unassailable.

Claims that the Second Circuit’s “view” would

strike down any law “that affects, or reflects any

concern regarding, automobile fuel economy” are

likewise unsupportable. See Public Citizen Br. 9. Nor

did the court anywhere suggest that “every taxicab

regulation that affects a fleet owner’s vehicle pur-

chase decisions,” would be invalid. Pet. 14. Indeed,

the district court stated in so many words that this

case does not concern “whether New York City can

incentivize the purchase of certain types of taxis,”

pointing out that three City hybrid incentives remain

in place: (a) the $3 hybrid incentive passed at the

same time as the $12 penalty; (b) a 2003 rule limiting

certain new taxi licenses to hybrids; and (c) a 2006

rule extending the service life of hybrid vehicles from

three to five years. App. 20a. The court of appeals

affirmed that judgment and “view” about the $3

hybrid incentive. Id. 5a.

Moreover, after an evidentiary hearing, the

district court found that the Replacement Rules,

while styled as “incentives,” create a “de facto man-

date” to purchase vehicles with a 25 mpg rating or

higher. /d. 65a, 59a; accord id. 57a (The Replacement

Rules are “essentially a command to taxicab owners

to meet that higher mpg standard.”). Indeed, there is

a faintly Orwellian cast to describing a measure with

the purpose and effect of making operation of lower-

mpg vehicles commercially infeasible as merely

“removing disincentives.” See Public Citizen Br. 9

(citing DOJ C.A. Br. 2-3).

The district court also considered — but rejected

as pretextual — petitioners’ claim that this was an

exercise in regulating the relative incomes of drivers.

App. 28a n.9. Thus, petitioners’ assertion that the

decision restricts their “traditional police power” is

meritless.

Unable to argue that the judgment below was

wrong, petitioners and their amici spend considerable

time critiquing the court of appeals’ reasoning. This

Court, however, “reviews judgments, not opinions.”

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842 & n.8& (1984); accord Texas uv.

Hopwood, 518 U.S. 1033 (1996) (Ginsburg, J., respect-

ing denial of certiorari) (same). In any event, it is

petitioners and amici — not the Second Circuit — who

misunderstand preemption law generally and this

provision in particular.

For example, petitioners assert that measures

should be preempted only if they will “have a sig-

nificant impact on the overall federal regulation of

the average fuel economy of automobile manufactur-

ers,” and argue that is not so here where no more

than about 3,000 purchase decisions would be affect-

ed. Pet. 14-15. But this is surely wrong. Indeed, it

was precisely the danger of uncoordinated 3000-car-

at-a-time local fuel efficiency policies that impelled

29

Congress to enact an explicit (and broad) preemption

provision in EPCA — not a savings clause.* Such

measures, considered individually, may be consistent

with the stat te’s substantive, energy independence

objectives, yet still violate the purposes of the

preemption clause. As the Court explained in Engine

Manufacturers Ass’n v. South Coast Air Quality

Management District, “if one State or political sub-

division may enact such rules, then so may any other;

and the end result would undo Congress’s carefully

calibrated regulatory scheme.” 541 U.S. 246, 255

(2004).°

Petitioners and amici also accuse the court of ig-

noring the word “standards” in the EPCA preemption

* Chicago also wrongly posits that preemption is warranted

only where local measures “improperly burden interstate

commerce or overly intrude on federal concerns.” See Chicago Br.

10. But these are the limitations that apply absent any indica-

tion of preemptive intent — indeed in cases involving statutes

with non-preemption provisions. See Geler v. Am. Honda Motor

Co., Inc., 529 U.S. 861, 869-73 (2000).

* Indeed, the presentation of the statute’s substantive

purposes is tellingly incomplete. The statute’s chosen means of

promoting fuel economy, corporate average standards, reflects

the high value Congress put on preserving “wide consumer

choice.” Ctr. for Auto Safety v. Thomas, 847 F.2d 843, 864 (D.C.

Cir. 1988), vacated on other grounds, 856 F.2d 1557 (D.C. Cir.

1988); accord H.R. Rep. No. 94-340, at 87 (1975). That strong

policy is impinged by the Replacement Rules here, which would

harshly penalize respondents and other owners for choosing a

relatively fuel-efficient vehicle specifically developed for the

urban taxi market, rather than a hybrid on the other side of the

25 mpg cut-off. See infra n.3.

26

provision, noting that the term “average fuel economy

standards” is a defined term in the statute and that a

regulation of purchasers would not qualify. Chicago

Br. 16. But the statute refers in the disjunctive to “or

fuel economy standards,” and the latter, which must

be presumed to have a different meaning, is not

defined in the statute. Moreover, the text does not

confine itself to locally-enacted “standards,” but

rather prohibits laws “related to” standards. In any

event, this argument was soundly rejected in Engine

Manufacturers, which held that local regulations

mandating the purchase of alternative-fuel vehicles

violated the CAA’s preemption provision. 541 U-S. at

255. The Court explained that it “would make no

sense” to treat “sales restrictions and purchase re-

strictions differently for pre-emption purposes.” Jd.°

Petitioners’ efforts (Pet. 13-14) to enlist state-

ments in this Court’s opinions recognizing outer

limits of “related to” miss the point. To accept that

“related to” does not authorize.“infinite” displacement

of local law is not to erase the dominant theme of

decades of ERISA jurisprudence: that the phrase is

unusually broad and “expansive.” See FMC Corp. v.

* The City’s amicus further obscures matters when it im-

plies that Engine Manufacturers held that the term “‘standard’”

must encompass “ ‘command, accompanied by sanctions.’” Public

Citizen Br. 7 (quoting 541 U.S. at 255). As the opinion makes

clear, the quoted language established that “commands” are

statutorily sufficient. The Court expressly left open the question

whether the CAA preemption language “refers only to standards

that are enforceable.” Jd. at 258.

27

Holliday, 498 U.S. 52, 58 (1990) (describing phrase as

“conspicuous for its breadth”); Pilot Life Ins. Co. v.

Dedeaux, 481 U.S. 41, 45-46 (1987) (“deliberately

expansive’); 7ravelers Indem. Co. v. Bailey, 129 S. Ct.

2195, 2203 (2009) (describing phrase as “expansive”).

It entails no “uncritical[] literallism]” or undue

“stretchling]” (Pet. 14) to conclude that preemption is

warranted where, as here, the measure at issue is

meaningfully indistinguishable from one the locality

itself admits is properly preempted. It could hardly be

otherwise.

The weakness of petitioners’ position is further

revealed by their heavy reliance on statutes enacted

after the EPCA was passed as evidence for the intent

of the Congress that passed EPCA. Pet. 15-16, 21-23.

While courts occasionally consider subsequent legis-

lation when ascertaining congressional intent, Mood

and Drug Admin. v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 133 (2000), this Court has re-

peatedly recognized that “the views of a subsequent

Congress,” generally “form a hazardous basis for

inferring the intent of an earlier one,” Bilski v.

Kappos, 130 S. Ct. 3218, 3250 (2010) (quoting United

States uv. Price, 361 U.S. 304, 313 (1960)); accord

Massachusetts v. E.P.A., 549 U.S. 497, 529 (2007). In

any event, some of the after-enacted statutes relied

upon by petitioners involve federal-incentives or

federally-approved state plans, such that preemp-

tion analysis may not be implicated. See Green

Mountain Chrysler Plymouth Dodge Jeep v. Ceombie,

508 F. Supp. 2d 295, 398 (D. Vt. 2007) (holding that

because the emission standards were passed pur-

suant to a federal waiver under the CAA, they were

federal, not local standards, and preemption therefore

does not apply); 42 U.S.C. §13235(a) (federally-

approved state plans under the Energy Policy Act);

42 U.S.C. §§ 7410(a), 7586 (federally-approved state

plans under the CAA); supra n.8. Others involve

incentives different in kind from those at issue here.

Finally, petitioners’ efforts to flog the “presump-

tion against preemption,” do not amount to anything.

At the outset, it is not evident from the opinion that

the Second Circuit panel did not “consider” — as

opposed to did not discuss — the presumption. Nota-

bly, the opinion petitioners quote (Pet. 11) for the

proposition that the presumption must be explored in

every preemption case was a one-Justice dissent in

Engine Manufacturers, 541 U.S. at 260-61 (Souter, J.,

dissenting). The majority opinion there specifically

acknowledged but rejected that criticism, and point-

edly found preemption without discussing the pre-

sumption. Engine Mfrs., 541 U.S. at 256.

Moreover, the Court repeatedly has held that

there are cases involving subject matters of

longstanding federal involvement or concern — where

the presumption “is not triggered.” See United States

v. Locke, 529 U.S. 89, 108 (2000). There are strong

reasons for concluding that this case falls into that

category. The regulation of vehicle fuel-economy

and emissions are areas of longstanding federal con-

cern, and “Congress’s undoubted intent was to make

the setting of fuel economy standards exclusively a

QQ

federal concern.” Green Mountain, 508 F. Supp. 2d at

354; accord Engine Mfrs. Ass’n v. U.S. EPA, 88 F.3d

1075, 1079 (D.C. Cir. 1996) (In “contrast to federally

encouraged state control over stationary sources,

regulation of motor vehicle emissions had been a

principally federal project.”). And while the regulation

of taxicab service is surely an area of traditional local

concern, the fuel efficiency concerns that animated

this regulation are not “unique local problems” (Chi-

cago Br. 10), but are of national character.’ But

whether or to what extent the presumption is opera-

tive is ultimately academic: the district court decision

The decision here no more brought “the taxicab industry

under federal regulatory control” (Pet. 12) than did this Court

decision in Engine Manufacturers, 541 U.S. at 258; or the

district court’s injunction in MTBOT J, which petitioners now

concede was correct; or this Court’s decision in Golden Stat

Transit Corp. v. City of L.A., 475 U.S. 608, 618-20 (1986) (hold

ing taxi licensing decision preempted under the National Labor

Relations Act). Indeed, the brief submitted by the federal

government below admitted that “some incentive programs

even those arising in the context of traditional state regula

tion of the taxicab industry, could be so onerous that they

effectively would command the purchase of new vehicles” and be

preempted. DOJ C.A. Br. 19 n.5

It would be particularly odd to infer an exception for tax

when the EPCA expressly provides one for vehicles purchased

for a City’s “own use.” See MT'BOT 1, 2008 WL 4866021, at *10

*12 (finding this exemption dues not apply); Gade v. Nat'l Solid

Wastes Mgm't Ass’n, 505 U.S. 88, 100 (1992) (O'Connor, J

plurality opinion) (where Congress includes a savings clause

“the natural implication is that state laws regulating the

same issue as federal laws are not saved” if they fall outside the

clause’s express terms)

30

explicitly referenced the presumption, and nonethe-

less found preemption. App. 34a. As in Engine Manu-

facturers, the presumption “demonstrably makes no

difference to resolution of the ... question.” 541 U.S

at 256.

In sum, the court of appeals’ decision finding

preemption is correct.

Il. THIS IS NOT A REMOTELY APPROPRI-

ATE CASE TO SETTLE GENERAL RULES

CONCERNING EPCA PREEMPTION

Even if the (interlocutory) decision below were

not the first appellate case to consider the provision

at issue, this case would be a singularly inappropriate

vehicle for resolving the issues petitioners and amici

ask the Court to decide.

First and foremost, the question whose im

portance and urgency they insist upon — the applica-

tion of EPCA’s preemption clause to local measures

that provide incentives for certain vehicle types — is

not actually presented here. As has been explained

above, the Second Circuit was not called upon to

decide — and did not decide — whether every voluntary

incentive is subject to preemption. The opinion ac

companying the judgment it affirmed expressly

stated that the case was not about incentives

App. 5a, 20a. And both courts explicitly acknowledged

that the judgment left in place other TLC hybrid-

promoting regulations, such as the $3 incentive. /d.

31

Although the court of appeals saw no need to

reach the question, the district court had found

(based on a developed evidentiary record) that the

Replacement Rules were not incentives but instead a

de facto mandate that would “force Fleet Owners to

purchase hybrid taxicabs.” Jd. 65a.

Moreover, as explained above, the opinion did not

hold that “hybrid” is always a proxy for “greater fuel

efficiency” — let alone that every “police power” regu-

lation that incidentally affects vehicle choice is sub-

ject to EPCA preemption. The absence of a specific

mpg standard in the Replacement Rules was held to

be only a matter of “creative drafting” (id. 58a), and

the claim that petitioners were regulating drivers’

incomes was found to be pretextual (7d. 28a n.Q).

This distinctive history and procedural posture

make clear that this case is unsuited for plenary

review. Not only does the petition ask the Court to

decide a question that was not considered by the

courts below (and has not been considered by any

appellate court), but any attempt to address these

broader questions — let alone “bring clarity” — would

necessarily be complicated by this case’s many idio-

syncratic features.

Even if the Court were to credit petitioners’

doubtful, maximal reading of the opinion below — or

the “implications” of its reasoning (Public Citizen Br.

9) - respondents would be entitled to seek affirmance

of the case on alternative grounds. Indeed, the

district court ruled in respondents’ favor on two

32

independently sufficient grounds, based on specific

findings developed after an evidentiary hearing:

EPCA preemption under the “connected to” prong and

preemption under the CAA.

The submissions of petitioners and amici read as

if the appellate court overturned the “effective man-

date” conclusion and held the Replacement Rules

were in fact a mere incentive. But that is not so: those

findings are undisturbed (and correct). And though

petitioners refrain from asking the Court to review

them (lest the full difficulty of their position be ap-

preciated), the tactical decision to proceed piecemeal

does not bind the Court. It is a testament to how

poorly suited this case is for plenary review that the

only relief petitioners claim this Court could award

would be a remand for the Second Circuit to review,

under a highly deferential standard, the district

court’s amply supported “effective mandate” determi-

nation. See Pet. 19 (claiming error only based on

Second Circuit’s “failure” to rule on that issue).

Petitioners would also be unlikely to successfully

overturn the holding that the Replacement Rules are

prohibited under the CAA. Under that statute, “ex-

clusive control over ‘standard[s] relating to the con-

trol of emissions from new motor vehicles’ is vested in

the federal government, and the states are preempted

from regulating in the area.” Am. Auto. Mfrs. Ass’n v.

Cahill, 152 F.3d 196, 198 (2d Cir. 1998) (quoting 42

U.S.C. § 7543(a)). In Engine Manufacturers, this

Court held that a law requiring “fleets of street

sweepers ... [and] taxicabs picking up airline

23

passengers” to purchase or lease “green” vehicles,

including alternative-fuel vehicles, was preempted by

the CAA. 541 U.S. at 249. Contrary to amici’s claims,

the Court in that case did not reach the question of

whether an incentive is preempted under the CAA.”

Precisely because, as petitioners argue, determining

whether an incentive is preempted may require an

analysis of the “structure, purpose, and history of the

statute” (Pet. 10), an incentive may be preempted

under the CAA but not the EPCA, or vice versa.

Deciding this case would also require the Court

to decide the significance of “circumvention” and post-

injunction reenactment, as well as the significance of

petitioners’ concession that their Rescinded Rules

were preempted. No other case raising preemption

issues is likely to involve a defendant subject to this

* When holding that a mandate to purchase alternative-fuel

vehicles was preempted, the Court in Engine Manufacturers

looked to § 246 of the CAA, which permits states to adopt

purchasing mandates and financial incentives, such as increased

vehicle registration fees, if they do so as part of a State Imple-

mentation Plan (“SIP”). 42 U.S.C. §§ 7581-7590. The Court

noted that the CAA prescribes “numerous detailed require-

ments” that must be complied with to avoid preemption and saw

that as further evidence that the CAA was intended to otherwise

preempt emissions standards directed to purchasers. Engine

Mfrs., 541 U.S. at 254 n.6. This Court then asked, “what is the

use of imposing such a limitation if the States are entirely free

to impose their own fleet purchasing standards with entirely

different specifications?” Jd. at 258.

34

significant, binding (and voluntarily-assumed) con-

. g

straint.

Given the multiplicity of different and difficult

case-specific issues raised, the prospect that the

Court could or would reach the larger questions here

is minute. The unique history of this case, as well as

the multiple alternative grounds to strike down the

Replacement Rules, make this case a particularly bad

vehicle for deciding whether true incentives may be

preempted.

Ill. THERE IS NO URGENT NEED FOR THIS

COURT'S “IMMEDIATE INTERVENTION”

While acknowledging the absence of conflicting

(or any) appellate authority concerning EPCA’s

preemption provision, petitioners and amici highlight

the ubiquity, variety, and social importance of State

and local hybrid incentive programs, which they

claim the decision below “could” put “at risk.” See Pet.

24; Chicago Br. 5; Public Citizen Br. 3, 9. They assert

that this Court’s “immediate intervention is required”

“to prevent ... state and local governments” and

lower courts from reaching erroneous legal con-

clusions. Pet. 20.

” Nor do the obstacles mentioned exhaust the barriers that

petitioners would need to surmount in order to enforce the

currently enjoined Replacement Rules. As noted above (supra

n.2), the New York Court of Appeals recently granted leave to

appeal on the question whether petitioners violated state law by

failing to consider costs when reducing lease caps.

35

Doing so would be a sharp break from this

Court’s settled approach not to seek out opportunities

to shape “new area[s] of developing law” (see id. 29.),

but rather to withhold consideration until questions

have received sustained attention from the federal

appellate courts, see Sup. Ct. R. 10(a); E. Gressman,

Supreme Court Practice 246 (9th ed. 2009). The

reasons petitioners and amici give for abandoning

that practice do not withstand casual scrutiny.

There is a logical contradiction between peti-

tioners’ claims that the decision here will lead courts

and officials outside the Second Circuit astray (Pet.

20, 29) and petitioners’ argument (id. 8-9) that the

decision conflicts with this Court’s and other circuits’

existing precedents. If a measure is considered within

the Fourth, Sixth, or Ninth Circuit courts, those

courts can presumably be counted upon, without

further instruction from this Court, to apply the

“framework of analysis” petitioners assert their

precedent correctly requires. But see supra I.A. (ex-

plaining that Second Circuit’s framework is no differ-

ent). And to the extent that “established precedents of

this Court” (Pet. 8), supply the correct answer, federal

courts in Chicago or St. Louis will likewise reach the

appropriate conclusion. Cf. United States v. Williams,

184 F.3d 666, 671 (7th Cir. 1999) (“While we carefully

and respectfully consider the opinions of our sister

circuits, we are not bound by them.”).

As for localities, it is not this Court’s office to

provide advance guidance to other branches of gov-

ernment. See Aetna Life Ins. Co. of Hartford, Conn. v.

36

Haworth, 300 U.S. 227, 240-41 (1937). Petitioners’

dire forecasts depend to a great degree on fundamen-

tally erroneous assumptions, already discussed, about

(1) what was decided (and left undecided) below and

(2) the likelihood that this Court’s review would or

even could result in broad, generally applicable

guidance.

Of course, the premise that a ruling in any single

case would or could settle the legality of the vast

array of programs listed in the petition is itself surely

mistaken. On one hand, petitioners’ alarms ignore the

reality that local reguiations otherwise “at risk” of

preemption may be permissible if they: (1) fall within

EPCA’s exception allowing localities to adopt fuel-

economy requirements for “automobiles obtained for

[their] own use,” 49 U.S.C. § 32919(c); (2) were passed

pursuant to another federal law or as part of a federal

government approved plan (supra n.8); (3) were

expressly saved from preemption as a regulation of

the “operation, or movement of registered or licensed

motor vehicles,” 42 U.S.C. § 7543(d); or (4) fall under

the “market participant” doctrine, see Hughes v.

Alexandria Scrap Corp., 426 U.S. 794, 810 (1976)

(holding the state was acting as a market participant

when it paid bounties to hulk haulers and scrap

processors). On the other hand, this Court’s decision

in Engine Manufacturers indicates that, EPCA

preemption aside, even incentives relating to the

purchase of new vehicles may be challenged under

the CAA, a statute that is at issue in this case — but

which petitioners, despite an injunction on this

ground, conspicuously do not ask the Court to “clari-

fy.” See supra n.8. And to the extent that voluntary

37

incentive measures are to be accorded distinctive

treatment, courts will be called upon to develop

standards for what qualifies.

Direct evidence casts doubt on the claimed im-

mediate danger posed by the opinion here or what

petitioners take to be its “implications.” To date,

relatively few incentives have been challenged, and

none has been held preempted by a district court. The

lower courts’ decisions show them to have had no

great difficulty (far less then petitioners and amici)

giving the opinion below a less-than-maximal read-

ing. In Association of Taxicab Operators, USA v. City

of Dallas, No. — — F. Supp. 2d — —, No. 3:10-CV-769-K,

2010 WL 5584449 (N.D. Tex. Aug. 30, 2010), the court

rejected a claim that EPCA (and the CAA) preempted

a municipal rule giving compressed natural gas taxis

front-of-the-line privileges at the airport, explaining

that “[aln incentive lke the one in this case was

never challenged in Metro Taxicab.” Id. at *7. The

court there emphasized that the Second Circuit’s

decision affirmed “the district court’s statement [that]

thlis] case is not about” incentives. Jd. at *5-*7.

Likewise the court in Green Alliance Taxicab Assoc. v.

King County, No. CO8-1048RAJ, 2010 WL 2643369

(W.D. Wash. June 29, 2010), held that a new-licensing

regime was not preempted, on the ground it was a

“voluntary incentive program,” and therefore unlike

the “mandate” in this case. Jd. at *5. Indeed, the only

decision, other than this one, to hold a taxi regulation

— indeed any local regulation — preempted under the

EPCA, Ophir v. City of Boston, 647 F. Supp. 2d 86 (D.

Mass. 2009), involved an explicit mandate, which

38

petitioners concede is preempted. (As_ petitioners

note, Boston later substituted an incentive, leading

owners to discontinue their challenge. See Pet. n.14).

The reasons for restrained exercise of certiorari —

gaining the benefit of other courts’ sifting and testing

of competing legal rules through application to con-

crete factual situations — are implicated here. If

petitioners’ alarmist predictions have even a kernel of

truth, the Court will have no shortage of opportuni-

ties to consider and decide issues in which they were

actually and cleanly presented and clearly decided,

without the awkward posture complicating features

present in this case.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

RICHARD D. EMERY

Counsel of Record

ISMERY CELLI BRINCKERHOFF

& ABADY LLP

ELIZABETH S. SAYLOR

75 Rockefeller Plaza, 20th Floor

New York, New York 10019

(212) 763-5000

Counsel for Respondents

January 24, 2011