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

\) ) Oy No. 10-618 eens te

IN THE CC 9- 200

Supreme Court of the Gnited States om ccee

CITY OF NEW YORK, et al.,

Petitioners,

v.

METROPOLITAN TAXICAB BOARD OF TRADE,

et al.,

Respondents.

On Petition for Writ of Certiorari to the United

States 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 Counsel

of the City of Chicago

BENNA RUTH SOLOMON*

Deputy Corporation Counsel!

DIANE M. PEZANOSKI

Deputy Corporation Counsel

MYRIAM ZRECZNY KASPER

Chief Assistant Corporation

Counsel

GRAHAM G. MCCAHAN

Assistant Corporation Counsel

30 N. LaSalle St., Suite 800

Chicago, IL 60602

(312) 744-7764

benna.solomon@cityofchicago.org

*Counsel of Record

Additional counsel listed inside the cover

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

SUE B. CAIN DAVID R. FINE

Director of Law City Attorney

JAMES L. CHARLES JACQUELINE H. BERARDIN!

Associate Director of Law Assistant City Attorney

The Metropolitan City & County of Denver

Government of Nashville 1437 Bannock Street

& Davidson County Room 353

Tennessee Denver, CO 80202

Room 108, Metropolitan 720) 913-3287

Courthouse

P.O. Box 196300 PETER S. HOLMES

Nashville, TN 37219 City Attorney

(615) 862-634] KENT C. MEYER

Assistant City Attorney

LARS ETZKORN 600 Fourth Avenue

Program Director 4th Floor

Center for Federal Relations P.O. Box 94769

National League of Cities Seattle, WA 98124-4679

1301 Pennsylvania Ave., 206) 684-8200

N.W.

Washington, DC 20004 DEVALA JANARDAN

(202) 626-3000 Associate Counsel/Director

of Legal Advocacy

DAVID M., FELDMA! International Municipal

City Attorney Lawyers Association

CEIL PRICE 7910 Woodmont Avenue

Senior Assistant City Suite 1440

Attorney Bethesda, MD 20814

P.O. Box 368 202) 466-5424

Houston, TX 77001

(832) 393-6291

KAREN KENNARD JOHN DANIEL REAV!

Acting City Attorney General Counsel

ROBIN SANDERS United States Conference of

Assistant City Attorney Mayors

City of Austin Law 1200 New Hampshire

Department Avenue, N.W., 8th Floor

P.O. Box 1088 Washington, D.C. 20036

Austin, TX 78767 202) 776-2305

(512) 974-2268

DANIEL D. REGAN

LINDA MENG Solicitor

City Attorney ELAINE WIZZARD

HARRY M. AUERBACH Assistant Solicitor

Chief Deputy City Attorney City of Pittsburgh

BENJAMIN E. WALTERS Department of Law

Chief Deputy City Attorney 313 City-County Building

Room 430, City Hall 414 Grant Street

1221 SW Fourth Avenue Pittsburgh, PA 15219

Portland, OR 87204 (412) 255-2015

(503) 823-4047

Bown P. Rutan, Il

THOMAS P. PERKINS, JI City Attorney

City Attorney LAURA KIRWAN

CHRISTOPHER J. CASO senior City Attorney

BARBARA E. ROSENBERG Salt Lake City Corporation

Assistant City Attorney P.O. Box 145478

Dallas City Attorney’ 451 South State Street

Office Suite 505

1500 Marilla Street Salt Lake City, U'T 84114

Room 7B North (801) 535-7788

Dallas, Texas 7520]

(214) 670-3519

SuSAN L. SEGAL

City Attorney

JOEL M. Fussy

Assistant City Attorney

City of Minneapolis

350 South 5th Street

City Hall Room 210

Minneapolis, MN 55415

(612) 673-2010

WILLIAM F. SINNOTT

Corporation Counsel

SUSAN M. WEISE

First Assistant

City of Boston

Law Department

City Hall, Room 615

Boston, MA 02201

(617) 635-4034

ADRIENNE SOUTHGATE

City Solicitor

City of Providence Law

Department

275 Westminster Street,

Suite 200

Providence, RI 02903

(401) 421-7740, x333

CARMEN A. TRUTANICH

City Attorney

WILLIAM W. CARTER

Chief Deputy City Attorney

PEDRO B. ECHEVERRIA

Chief Assistant City

Attorney

200 North Main Street,

Suite 800

Los Angeles, CA 90012

(213) 978-8748

QUESTION PRESENTED

Whether a local government program that creates an

incentive, but contains no mandate, for taxicab owners

to purchase alternative-fuel vehicles, which are defined

by reference to engine technology and not fuel

efficiency, is preempted under 49 U.S.C. § 32919(a),

which prohibits local regulations “related to fuel

economy standards.”

TABLE OF CONTENTS

QUESTION PRESENTED ...............

TABLE OF AUTHORITIES ..............

INTEREST OF THE AMIC/] CURIAE ......

REASONS FOR GRANTING THE

MU tc te tee

‘.

II.

IT.

EPCA SHOULD NOT BE

INTERPRETED TO PREEMPT LOCAL

CLEAN-VEHICLE INCENTIVE

NS

THE COURT BELOW SHOULD HAVE

APPLIED THE PRESUMPTION

AGAINST PREEMPTION BECAUSE

CLEAN-VEHICLE INCENTIVE

PROGRAMS ARE AN EXERCISE OF

THE HISTORIC POLICE POWERS OF

LOCAL GOVERNMENTS. ........

ALLOWING LOCAL GOVERNMENTS

TO ADOPT INNOVATIVE CLEAN-

VEHICLE INCENTIVE PROGRAMS

ADVANCES THE GOALS OF EPCA. .

Ce

(111)

19

1V

TABLE OF AUTHORITIES

CASES Page

Altria Group, Inc. v. Good, 129 S. Ct.

ee Cae 3s es beh eee eee 9,11,19

Bates v. Dow Agrosciences, LLC, 544 U.S.

So0 tee ta es be ee eee 19

Buck v. California, 343 U.S. 99 (1952) .. 9, 21

California Division of Labor Standards

Enforcement v. Dillingham

Construction, N.A., Inc., 519 U.S. 316

CRE, bear ee ae 18

Cincinnati, Indianapolis, & Western

Railway Co. v. City of Connersville,

210 US. SIO CIID 5c eed cans cs 22

Crandon v. United States, 494 U.S. 152

O : : RR eee eae Net da 12

Detroit, Fort Wayne, & Belle Isle Railway

v. Osborn, 189 U.S. 383 (1903) .. 2... 9, 21

Engine Manufacturers Association v.

South Coast Atr Quality Management

District, 541 U.S. 246 (2004) ........ 17-18

Escanaba & Lake Michigan

Transportation Co. v. City of Chicago,

107 U.S. 678 (1883) ............... 22

Vv

TABLE OF AUTHORITIES—Continued

Page

Fanning v. Gregoire, 57 U.S. (16 How.)

IE ko e-eae 4 Ge ee eS 21

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1

bP ee a eee ot aes 9, 21

Gilman v. City of Philadelphia, 70 U.S.

(3 Will.) TIS (IGG) «oi vc cc eee 22, 25

Hager v. City of West Peoria, 84 F.3d

ae, Ee ae.) re 14

Huron Portland Cement Co. v. City of

Detroit, 362 U.S. 440 (1960) ....... 24

K Mart Corp. v. Cartier, Inc., 486 U.S.

SR, etc heb. er et ey 15-16

Karpark Corp. v. Town of Graham, 99

F. Supp. 124 (D.C.N.C. 1951) ...... 9

Massachusetts v. EPA, 549 U.S. 497

od SPgtananar nan are ern aaa Er oe 8

Milk Control Board of Pennsylvania v.

Eisenberg Farm Products, 306 U.S.

ee eave eee ke ees 25

New State Ice Co. v. Liebmann, 285 U.S.

GRE gg koe ee eee ee eee. 5

v1

TABLE OF AUTHORITIES—Continued

Page

New York, New Haven & Hartford

Railroad Co. v. New York, 165 U.S.

<2 | yj er aera rare 22

New York State Conference of Blue

Cross & Blue Shield Plans v.

Travelers Insurance Co., 514 U.S. 645

| RRR aan re aa eer mn oer 18, 20

Oregon v. Ice, 129 8S. Ct. 711 (2009) ... 10

Pacific Gas & Electric Co. v. Police

Court, 261 U.S. 22 (3919) ......5.. 10.21

Rice v. Santa Fe Elevator Corp., 331

Ree, ee ER) ova h ks ks bs pewcs es 9,19

Slaughter-House Cases, 83 U.S. (16

of A ey 4 21

STATUTES AND CONGRESSIONAL MATERIAL

£0 USC. § SZG0MaNG) 2. ww cee. 12

40'U 5.0. § SZ00HaNT) .. oe cc eens 14

49 U.S.C. § 32901(a)(18) ............ 14

49 U.S.C. § 32901(aX(19) ............ 14

SOU S.C. §SZ0CMC) 2. ss ccc ccccess 16

V1

TABLE OF AUTHORITIES—Continued

Page

OP U.S. SROOMG) 6 vite ens 16

ORS ge Be de 16

O39 UGG. § SZOOMS) ow. ce cc cas 16

49 U.S.C. § 32902(b) .......... ors 14

49 U.S.C. § S2902(bM INC) .......... 17

49 U.S.C. § 32902(b2\C) .......... 16

£9 U.S.C. $ SZO0RONZ) .. wc ee ees 16

49 U.S.C. § 32902(h)\(3) ............. 16

OR. OM By.) 4 17

OO UG... SEOUCEMS) 2. ccc ees 16

49 U.S.C. § SZO02Z(KMS) ....... 00 ees 16, 17

OO UU, BOUND) nc cee cece ceaes 3

S. Rep. No. 94-516 (1975), reprinted in

1975 U.S.C.C.A.N. 1956 .......... 7,27

ORDINANCES, RULES, and RESOLUTION

Municipal Code of Chicago, III. § 9-112-

DUT Ee 0) 0) aa 23

Vill

TABLE OF AUTHORITIES—Continued

Page

Sait Lake City Code § 12.56.205

SNE cra cea aeons ee eee eer aie aces 4

35 Rules of the City of New York § 1-

T6(AKS) (ZOOB) 2... ccc cece nvncs 8

Resolution 2010R-570, available at

http://www.ci.minneapolis.mn.us/

council/archives/proceedings/2010/20

101119-proceedings.pdf. .......... 29

BOOKS AND PERIODICALS

Jane Jacobs, THE DEATH AND LIFE OF

GREAT AMERICAN CITIES (Vintage

OE GS 6

Paul S. Dempsey, Taxi Industry

Regulation, Deregulation, &

Reregulation: the Paradox of

Market Failure, 24 Transp. L.J. 73

[ees ae sae yas wa eae ee ees 22, 23, 26

National Research Council,

Effectiveness and Impact of

CorporateAverage Fuel Economy

(CAFE) Standards (2002), available

at http://www.nhtsa.gov/cars/rules/

cafe/docs/162944 web.pdf......... 15

LX

TABLE OF AUTHORITIES-Continued

ADMINISTRATIVE MATERIALS Page

U.S. Energy Information

Administration, Annual Energy

Review 2009, DOE/EIA-0384 (2010),

available at http://www.eia.doe.gov/

emeu/aer/pdf/aer.pdf ............. 6

U.S. EPA, Air Toxics from Motor

Vehicles, EPA 400-F-92-004 (1994),

available at http://www.epa.gov/otaq/

oo re

~]

Oo

U.S. EPA, Automobile Emissions: An

Overview, EPA 400-F-92-007 (1994),

available at http://www.epa.gov/oms/

consumer/05-autos.pdf ...........

U.S. EPA, Inventory of U.S. Greenhouse

Gas Emissions and Sinks: 1990-2008,

EPA 430-R-10-006 (2010), available

at http://www.epa.gov/climatechange/

emissions/usinventoryreport.htm] . . 8

~]

U.S. EPA, National Emissions

Inventory Air Pollutant Emissions

Trends Data, 1970-2008 Average

Annual Emissions, available at

http://www.epa.gov/ttnchie1/

RON ena ae ae 7

IN THE

Supreme Court of the Anited States

No. 10-618

CITY OF NEW YORK, et ai.,

Petitioners,

Vv.

METROPOLITAN TAXICAB BOARD OF TRADE,

etal.,

Respondents.

On Petition for Writ of Certiorari to the United

States 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 and

national 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 to

fund 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, Los

Angeles, Minneapolis, Nashville, Pittsburgh, Portland,

Providence, Salt Lake City, and Seattle — have adopted

important environmental programs for’ their

communities. Many of these programs aim to promote

sustainability and reduce air pollution. Amici

therefore have a compelling interest in legal issues

affecting local governments and in this case in

particular.

The International Municipal Lawyers Association

(“IMLA”) is a non-profit, professional organization of

over 3500 local government entities, including cities,

counties, and special district entities, as represented

by their chief legal officers, state municipal leagues,

and individual attorneys. Since 1935, IMLA has

served as a national, and now international,

clearinghouse of legal information and cooperation on

municipal legal matters. IMLA’s mission is to advance

the responsible development of municipal law through

education and advocacy by providing the collective

viewpoint of local governments around the country on

legal issues before this Court, the federal courts of

appeals, and state supreme and appellate courts.

The National League of Cities (“NLC”) is the oldest

more than 10 days before tle 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 municipal

governments throughout the United States. Its

mission is to strengthen and promote cities as centers

of opportunity, leadership, and governance. Working

in partnership with 49 state municipal leagues, NLC

serves as a national advocate for the more than 19,000

cities, villages, and towns it represents.

The United States Conference of Mayors (“USCM”)

is the official non-partisan organization of all United

States cities with populations <f 30,000 or more.

Members are represented in USCM by their chief

elected official, the mayor. USCM’s official policy

provides that taxi regulators across the country should

set fuel-economy and emissions standards for vehicles

they regulate. The policy applies to taxicabs and other

vehicles operated for hire pursuant to an operating

license, permit, or other authorization issued by a state

or political subdivision and _ providing local

transportation for a fare determined primarily on the

basis of time and/or distance traveled.

This case concerns a claim of preemption directed

against a New York City regulation that creates

incentives for owners of taxicab medallions to purchase

hybrid-electric and clean-diesel taxicabs. The court of

appeals relied on an express preemption provision of

the Energy Policy and Conservation Act, 49 U.S.C. §

32919(a) (2010) (“EPCA”), toinvalidate this regulation.

This decision was incorrect and should be reversed.

4

While EPCA’s preemption is broad, it does not reach

rules that encourage but do not mandate purchase of

hybrid or clean-diesel vehicles. Morever, the decision

puts at risk numerous other regulatory programs

nationwide,

Several other local governments, including Boston,

Dallas, and King County, Washington, adopted similar

taxicab regulations. Many more are engaged in a

variety of creative programs to encourage residents to

choose more fuel-efficient vehicles. For example, Salt

Lake City provides free parking at city parking meters

for low-polluting and fuel-efficient vehicles. See Salt

Lake City Code § 12.56.205 (2010). Portland has

partnered with local utilities and automobile

manufacturers on a federal grant to promote electric

vehicles, installing charging infrastructure throughout

the region and adopting “electric vehicle” exclusive on-

street parking spaces. And Boston formed a

partnership with NSTAR Electric and the

International Brotherhood of Electrical Workers to

encourage plug-in hybrid-electric vehicles. All of these

programs, and more, are aimed at reducing our

country’s over-dependence on fossil fuels, which causes

pollution, contributes to climate change, and threatens

national security, as EPCA itself makes clear. If not

reviewed, the decision below could stifle innovation we

can hardly afford to forgo.

This Court has repeatedly recognized that “[i]t is one

of the happy incidents of the federal system that a

single courageous State may, if its citizens choose,

serve as a laboratory; and try novel social and

economic experiments without risk to the rest of the

country.” New State Ice Co. v. Liebmann, 285 U.S. 262,

311 (1982) (Brandeis, J., dissenting). The court below

has halted local experimentation with making taxicabs

more energy-efficient. Its decision has already

curtailed the enforcement and implementation of

similar programs in Minneapolis and Seattle (see infra

at 28-29) and could affect countless other innovative

programs around the country. Because the decision in

this case will have a direct effect on matters of

substantial importance to amici and their members,

amict submit this brief to assist the Court in

determining whether the petition for a writ of

certiorart should be granted.

6

INTRODUCTION AND SUMMARY OF

ARGUMENT

“ILjively, diverse, intense cities contain the seeds of

their own regeneration, with energy enough to carry

over for problems and needs outside themselves.” Jane

Jacobs, THE DEATH AND LIFE OF GREAT AMERICAN

Civics 448 (Vintage Books 1992). In 2010 and into the

foresceable future, lively, diverse, intense American

cities need cars. Although cities work best when their

residents, workers, and visitors have various

transportation options, cities depend upon cars to move

people around. And people moving around, by

whatever means, give cities their energy and vitality.

Unfortunately, just as modern American cities need

cars, cars need energy ~— copious amounts of energy.

In 2009, the United States consumed 18.7 million

barrels of petroleum per day. See U.S. Energy

Information Administration, Annual Energy Review

2009, DOK/EIA-0384, Figure 5.1 (2010), available at

http:/www.cia.doe.gov/emeu/aer/pdf/aer.pdf. | Motor

gasoline for the transportation sector accounted for

more than 8.8 million barrels, or 47%, of that daily

total. See id. at Table 5.13c. This energy consumption

comes at a cost. The United States spent nearly $199

billion on crude oil imports in 2009, and net imports

accounted for almost 52% of United States petroleum

consumption that same year. See td. at Tables 5.20,

b.7. Recognizing both the pecuniary and non-

7

pecuniary costs of the Nation’s petroleum consumption

and importation, Congress enacted EPCA in 1975 to

“decrease dependence on foreign imports, enhance

national security, achieve the efficient utilization of

scarce resources, and yuarantee the availability of

domestic energy supplies at prices consumers can

afford.” S. Rep. No. 94-516, at 117 (1975), reprinted in

1975 U.S.C.C.A.N. 1956, 1957.

In addition to these energy-related costs, highway

vehicles accounted for 50% of United States emissions

of carbon monoxide, 32% of nitrogen oxides, and 21% of

volatile organic compounds (“VOCs”) in 2007 and 2008.

see U.S. EPA, National Emissions Inventory Air

Pollutant Emissions Trends Data, 1970 - 2008 Average

Annual Emissions, available at http://www.epa.gov/

ttnchie1/trends/. Carbon monoxide reduces the flow of

oxygen in the bloodstream and is dangerous to persons

with heart disease. U.S. EPA, Automobile Emissions:

An Overview, EPA 400-F-92-007, 2 (1994), available at

http://www.epa.gov/oms/consumer/05-autos. pdf.

Nitrogen oxides and VOCs are both precursors to the

formation of ground-levei ozone, which damages the

lungs and aggravates respiratory problems, and 1s,

according to the U.S. EPA, “our most widespread and

intractable urban air pollution problem.” Jbid. In

addition, as much as half of all cancer caused by

outdoor sources of air toxics may be attributed to motor

vehicles. See U.S. EPA, Air Toxics from Motor

Vehicles, PA 400-F-92-004, 1-2 (1994), available at

&

http://www.epa.gov/otag/toxics.htm. Moreover, light-

duty vehicles (cars and light trucks) account for nearly

20% of United States carbon dioxide emissions. See

U.S. EPA, Inventory of U.S. Greenhouse Gas Emissions

and Sinks: 1990-2008, EPA 430-R-10-006, 3-12 (2010),

available at http://www.epa.pov/climatechange/

emissions/usinventoryreport.html. As this Court

recently found, “U.S. motor-vehicle emissions make a

meaningful contribution to [global] g@reenhouse gas

concentrations ....” Massachusetts v. HPA, 549 U.S.

497, 525 (2007).

Congress did not intend EPCA to preempt efforts by

cities to manage their transportation networks,

promote energy independence, reduce air pollution, or

fight climate change through clean-vehicle incentive

programs. The text of EPCA, interpreted in light of

this Court’s preemption precedents, makes this clear.

New York City’s particular clean-vehicle incentive

program, 35 Rules of the City of New York § 1-78(a)(3)

(“Lease Cap Rules” or “Rules”), is a permissible

regulation for two reasons. First, the Lease Cap Rules

contain a technology-based standard that does not

impermissibly relate to the federal fuel-economy

standards that are the subject matter of EPCA and its

preemption clause. Second, the Lease Cap Rules are

an incentive program for taxicab owners and thus do

not impermissibly relate to EPCA’s fuel-economy

program, which prescribes performance standards for

manufacturers. ‘The court of appeals improperly

9

expanded EPCA preemption by misinterpreting its text

and failing to heed the presumption against

preemption of historic local police powers. This Court

has long operated under “the assumption that the

historic police powers of the States were not to be

superseded by [a] federal Act unless that was the clear

and manifest purpose of Congress.” Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947). And the

Court has continued to recognize that this assumption

applies “with particular force when Congress has

legislated in a field traditionally occupied by the

States.” Altria Group, Inc. v. Good, 1298S. Ct. 538, 543

(2008) (citation omitted).

Although the federal government has asserted

significant authority over interstate transportation,

energy, and air quality on a national level, local

governments have traditionally exercised substantial

authority over their transportation networks and

streets. See, e.g., Buck v. California, 343 U.S. 99, 102

(1952) (local regulation of taxicabs); Detroit, Fort

Wayne, & Belle Isle Railway v. Osborn, 189 U.S. 383,

390 (1903) (local order requiring railway to install

safety devices); Karpark Corp. v. Town of Graham, 99

F. Supp. 124, 128 (D.C.N.C. 1951) (local regulation of

parking meters). See also Gibbons v. Ogden, 22 U.S. (9

Wheat.) 1, 97 (1824) (counsel’s list of local licensing

laws for stage carriages). This’ includes | local

regulations aimed at reducing air pollution from the

transportation sector. See, e.g., Pacific Gas & Electric

10

Co. v. Police Court, 251 U.S. 22, 25-26 (1919) (local

regulation requiring street railroads to suppress dust

is within police power and collecting cases). Consistent

with these historic police powers, New York City and

other local governments have adopted clean-vehicle

incentive programs to increase the efficiency of their

transportation networks and promote better air

quality. Pet. 25-27. These local incentive programs

vary in their content and scope, but such variety and

innovation are laudable and should be permissible in

our federal system.

Preserving a space for local experimentation benefits

not only the governments that pilot original programs

but also the Nation as a whole. See, e.g., Oregon v. Ice,

129 S. Ct. 711, 719 (2009). Local governments need

room to innovate within the federal framework because

unique local problems often demand unique local

solutions; and if a local solution is found, it is one less

problem left for another level of government. Or, local

governments across the country may face similar

problems, and the programs of one can serve as a

source of solutions for others. Either way, the rest of

the country reaps the benefits of local innovation while

not bearing the costs. There are instances, of course,

where local innovations may improperly burden

interstate commerce or overly intrude upon federal

concerns, but courts are properly reluctant to

invalidate on either ground local programs adopted

1]

pursuant to their historic police powers. See Altria

Group, 1298S. Ct. at 543.

The court below misread the statute and misapplied

this Court’s precedents. As the petition makes clear, it

also created a conflict in the circuits. Pet. 9. From the

perspective of the amici, the decision’s sweeping

breadth alone warrants granting the petition. The

court of appeals’ expansive interpretation of EPCA’s

preemption provision encourages challenges to other

local incentive programs around the country that

promote the use of clean, fuel-efficient motor vehicles

in American cities and towns. It also chills the

development and implementation of future programs

by encouraging litigation against them. To address the

important issue of EPCA preemption and provide

clarity to the courts of appeals, to state and local

yovernments, and to businesses and consumers

weighing the short-term benefits of lower-cost,

traditional vehicles against the long-term implications

for our Nation of continuing our over-dependence on

traditional energy sources to power those vehicles, the

Court should grant the petition for a writ of certiorari.

12

REASONS FOR GRANTING THE PETITION

lL KPCA SHOULD NOT BE INTERPRETED

TO PREEMPT LOCAL CLEAN-VEHICLE

INCENTIVE PROGRAMS.

The court of appeals ruled that EPCA preempts even

technology-based clean-vehicle incentive programs, like

New York City’s Lease Cap Rules. The plain language

of the preemption provision shows that this is wrong

for two reasons. I irst, the court omitted an important

textual limitation on the scope of preemption, which

restricts its reach to laws and regulations related to

federal annual fuel-economy' standards for

manufacturers. Second, it ignored the difference

between technology-based programs that provide

incentives and those that impose mandates.

KPCA preempts local regulations “related to fuel

economy standards or average fuel economy

standards.” 49 U.S.C. § 32919(a). The statute defines

“average fuel economy standard” as “a performance

standard specifying a minimum level of average fuel

economy applicable to a manufacturer in a mode!

year,” id. § 32901(a)(6), while “fuel economy standard”

itself is not defined. Nonetheless, “it is an ancient and

sound rule of construction that each word in a statute

should, if possible, be given effect.” Crandon v. United

States, 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’s

preemption clause. As a result, it reached an

interpretation far broader than if it had accommodated

all the statutory terms.

The court of appeals did not offer a definition of “fuel

economy standards,” but leapt to the erroneous

conclusion that the Rules “are directly rejated to fuel

economy standards” based on the idea that “they rely

on fuel economy, and nothing else, as the criterion for

determining the applicable lease cap.” Pet. App. 11a.

This conclusion both misidentifies the preempted

subject matter and mischaracterizes the Rules. With

respect to the scope of EPCA preemption, EPCA does

not preempt local regulation that relies on “fuel

economy,” but only regulation that relates to “fuel

economy standards.” The court below simply read the

word “standard” out of EPCA’s preemption clause. In

turn, because the court failed to give effect to a word of

limitation, it impermissibly expanded the scope of

preemption and swept in local regulation that may

relate to “fuel economy” but does not relate to “fuel

economy standards” as used in EPCA — namely, as we

explain below, federal performance standards directed

at manufacturers.

And with respect to the Lease Cap Rules, the court

of appeals mischaracterized them by stating that the

Rules “rely on fuel economy, and nothing else, as the

14

criterion” for determining lease rates. The Rules do

indeed rely on something else to determine the

applicable lease cap— a technology-based criterion that

differentiates between hybrid and clean-diesel engines,

on the one hand, and traditionai gasoline engines on

the other. The court incorrectly determined that

“hybrid’ is simply a proxy for ‘greater fuel efficiency”

and, therefore, that the Rules impermissibly relate te

fuel-economy standards. Pet. App. lia. In support of

its conclusion, the court stated that “EPCA specifically

requires the separate consideration of ‘dual fueled’

vehicles, including hybrids, in the determination of

national fuel economy standards.” Jd. at 10a. This

misses the point. EPCA may require federal regulators

to separately consider hybrids in determining fuel-

economy standards, but that does not make engine

technology a “fuel economy standard.” Federal

regulators must also consider vehicle weight when they

set separate average fuel-economy standards for

passenger 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 vehicles

classes by weight for purposes of setting separate fuel-

economy standards). Nonetheless, neither of these

requirements makes local laws based on engine

technology or that classify vehicles by weight a “fuel

economy standard.”’

' Weight restrictions are commonplace. See, e.g., Hager v. City of

West Peoria, 84 F.3d 865, 867 (7th Cir. 1996) (local prohibition of

15

The court also found the Rules problematic because

they are not “neutral to the fuel economy of the

vehicles to which they apply.” Pet. App. lla. To be

sure, engine technology can affect fuel economy, but a

technology-based local incentive program with an effect

on fuel economy does not thereby have a prcehibited

relationship to “fuel economy standards” under EPCA.

Many design features of new automobiles affect fuel

economy: size, shape, weight, energy-using accessories,

and tire type. See National Research Council,

Effectiveness and Impact of Corporate Average Fuei

Economy (CAFE) Standards 31-32, 95 (2002), available

at http://www.nhtsa.gov/cars/rules/cafe/docs/

162944 web.pdf. Thus, mandating taxicabs of a

certain size or capacity, for instance, undoubtedly

affects a fleet’s fuel economy. Under the court of

appeals’ reading of EPCA, any local taxi regulation or

other programs that require or promote certain

vehicles based on these or other design features would

be preempted because such programs are not fuel-

economy neutral.

Although EPCA does not define the term “fuel

economy standards,” the broader statutory scheme

provides a guide to its scope. In order to interpret a

statutory term, courts may look to the particular

statutory language at issue, as well as “the language

and design of the statute as a whole.” K Mart 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 statute

where, as in the preemption provision itself, that term

is used separate from the term “average fuel economy

standards.” 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 of

the preemption clause itself can and should be

consulted to determine the scope of local regulation

that is preempted because it is “related to fuel

economy standards.”

These other uses of the same term reveal that “fuel

economy standards” means the same thing as “average

fuel economy standards,” except with the “average”

component removed. Thus, “a performance standard

specifying a minimum level of average fuel economy

applicable to a manufacturer in a model year” becomes

the more general “a performance standard specifying

fuel economy applicable to a manufacturer in a model

year.” Framed in this way, it becomes clear that a

* See,e.g.,49 U.S.C. § 32902(b)(2)(C) (Secretary of Transportation

“shall prescribe annual fuel economy standard increases that

increase the applicable average fuel economy standard”); id. §

32902(e)(2) (manufacturers may exclude emergency vehicles “in

applying a fuel economy standard under subsection (a), (b), (c), or

(d) of this sectien,” concerning Secretary's decisions regarding

average fuel-economy standards); id. § 32902(h)(3) (factors

Secretary may not consider “when prescribing a fuel economy

standard” pursuant to subsections (c), (f), and (g), concerning the

17

local technology-based regulation does not bear a

prohibited relationship to the preempted subject

matter — the annual fuel-economy performance

standards for manufacturers — even if the regulation

has an impact on fuel economy. That is because the

performance standards mandate a level of compliance

for manufacturers, but not any particular engine

technology for achieving compliance. Engine

technology is just one of many design features that

manufacturers may consider in complying with their

annual performance standards. Therefore, a local

technology-based regulation does not relate to those

performance standards such that it is preempted under

EPCA.

Not only are the Lease Cap Rules permissible under

EPCA because they reflect a _ technology-based

standard and not a miles-per-gallon standard, but they

also escape preemption because they are an incentive

program rather than a mandate. As this Court has

recognized in another preemption context, voluntary

incentive programs are “significantly different from

command-and-control regulation.” Engine

Manufacturers Association v. South Coast Air Quality

SS —— —-

setting and amendment of average fuel-economy standards); id

§ 32902(k)(3) (subsection (b)(1C) directs Secretary to prescribe

average fuel-economy standards for larger commercial vehicles in

accordance with subsection (k), and subsection (k) refers to the

“work truck fuel economy standard adopted pursuant to this

subsection”)

18

Management District, 541 U.S. 246, 258 (2004). This

distinction applies with particular force when, as here,

the federal statute at issue is intended to subject

businesses engaged in interstate commerce to uniform

national standards. See, eg., New York State

Conference 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 market

and do not further regulate that market such that the

uniformity of the federal scheme is disrupted. See id.

at 659; California Division of Labor Standards

Enforcement 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 state

regulation based on so tenuous a relation without

doing grave violence to our presumption that Congress

intended nothing of the sort.”). As we explain above,

EPCA preempts only local regulations related to the

federal fuel-economy standards directed at

manufacturers. Thus, by providing an incentive rather

than imposing a manufacturing or purchase

requirement, the Rules are neither related to EPCA’s

manufacturer-focused fuel-economy standards, nor do

they disrupt its manufacturer-focused program.

[9

Il. THE COURT BELOW SHOULD HAVE

APPLIED THE PRESUMPTION AGAINST

PREEMPTION BECAUSE TAXICAB

REGULATIONS ARE AN EXERCISE OF

THE HISTORIC POLICE POWERS OF

LOCAL GOVERNMENTS.

Were there any doubt about the language of EPCA’s

preemption clause, the court below erred by not

applying the presumption against preemption.

“(When the text of a pre-emption clause is susceptible

of more than one plausible reading, courts ordinarily

‘accept the reading that disfavors pre-emption.” Altria

Group, 129 S. Ct. at 543 (quoting Bates v. Dow

Agrosciences, LLC, 544 U.S. 431, 449 (2005)). This is

a mainstay of this Court’s analysis when a claim of

preemption is directed against the historic police

powers of state and local governments. See, e.g., Rice,

331 U.S. at 230. Given this presumption, preemption

is proper only when “Congress has made such an

intention clear and manifest.” -.g., Bates, 544 U.S. at

449 (citations and internal quotations omitted). In

particular, this Court has cautioned that courts should

not take the preemptive phrase “relate to” to the

“furthest stretch of indeterminacy, [because] then for

all practical purposes pre-emption would never run its

course .... [T]hat, of course, would be to read

Congress’s words of limitation as mere sham, and to

read the presumption against pre-emption out of the

20

law whenever Congress speaks to the matter with

generality.” Travelers, 514 U.S. at 655.

Local governments have traditionally regulated

their streets and transportation networks in order to

protect the general health, safety, and welfare of their

citizens. Given this historic local regulatory power and

the lack of “clear and manifest” intention on the part of

Congress, the court of appeals should have rejected

preemption. That result simultaneously honors the

text of EPCA’s preemption provision, preserves the

ability of local governments to regulate their streets

and transportation networks, and furthers HPCA’s

energy-independence and national-security goals.

Local governments manage transportation — to

promote mobility, efficiency, safety, and air quality.

Achieving these goals can be difficult in a complex

urban system with many countervailing forces and a

multitude of individual and institutional actors, so

cities must be creative and flexible as they attempt to

align market forces with socially beneficial outcomes.

Such balancing is the foundation of the police power

and is nowhere more important than in our dense,

complex, diverse cities. This Court long ago recognized

the importance of the police power for cities:

[(O]perations offensive to the senses, the

deposit of powder, the application of

steam power to propel cars, the building

21

with combustible materials, and the

burial of the dead, may all ... be

interdicted by law, in the midst of dense

masses of population, on the general and

rational principle, that every person

ought so to use his property as not to

injure his neighbors; and that private

interests must be made subservient to

the general interests of the community.

Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 62 (1872)

(internal quotation marks omitted).

Local governments have regulated’ taxicabs

pursuant to their police powers for decades. See, e.g.,

Buck, 343 U.S. at 102. More generally, local regulation

and licensing of public transit and conveyances for hire

have an even longer history. See, e.g., Belle Isle

Railway, 189 U.S. at 390 (electric streetcars); Fanning

v. Gregoire, 57 U.S. (16 How.) 524, 534 (1853) (ferry

boats); 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 control

over the transportation network has long included

regulations addressing safety, air quality, and other

subjects within the retained police power. Sce, e.g.,

Pacific Gas & Electric, 251 U.S. at 25-26 (regulating

street railways to suppress dust); Belle Isle Railway,

189 U.S. at 390 (requiring railway to install safety

22

devices); New York, New Haven & Hartford Railroad

Co. v. New York, 165 U.S. 628, 629 (1897) (prohibiting

railroads from heating passenger cars with internal

stoves or heaters). In addition, local governments have

a lengthy history of balancing competing uses of their

streets and waterways to enhance the efficiency of

their transportation networks and promote public

convenience. See, e.g., Cincinnati, Indianapolis, &

Western Railway Co. v. City of Connersville, 218 U.S.

336, 340-41 (1910); Escanaba & Lake Michigan

Transportation Co. v. City of Chicago, 107 U.S. 678,

681 (1883); Gilman v. City of Philadelphia, 70 U.S. (8

Wall.) 713, 721-22 (1865).

Local governments have adopted clean-taxicab

incentive programs to promote air quality and increase

the efficiency of their transportation networks.

Taxicabs serve a particular purpose in urban networks.

Unlike most mass transit trips, taxicabs can go directly

from door-to-door (and point-to-point in a multimodal

journey). And unlike most private vehicle trips,

taxicab service does not require a parking space at

either end of the trip, which frees up building and

street space for other uses, and can reduce pressure for

private car ownership and rentals. See generally Paul

S. Dempsey, 7axi Industry Regulation, Deregulation, &

Reregulation: the Paradox of Market Failure, 24

Transp. L.J. 73, 117-18 (1996). Just as government

involvement in mass transit is justified under a public-

good theory, public-good and market-failure theories

23

also support traditional regulation of the taxicab

industry. See id. at 91-100. Air pollution is one such

market failure, or negative externality, that local

governments have attempted to address through clean-

taxicab incentive programs. See id. at 94-96.

In addition, taxicab incentive programs may help

reduce the disruptive effects of fluctuating fuel costs on

the taxicab market. In an era of volatile fuel prices, a

taxicab fleet that relies upon diversified energy sources

and maximizes energy efficiency may be better able to

perform the unique functions for which urban

transportation networks rely on taxi service. New

York City adopted its Lease Cap Rules to correct “a

structural problem with the standard vehicle lease

arrangement that artificially insulated fleet owners

from fuel costs” because drivers who lease their

vehicles bear the cost of fuel. Pet. 4. And, recognizing

the impact that fluctuating fuel costs have on the taxi

market, Chicago allows taxi drivers to impose an

additional gasoline surcharge on all fares under

certain conditions and when gasoline prices exceed a

certain threshold. See Municipal Code of Chicago, Il.

§ 9-112-510(e) (2010). Regulations of this sort may

serve to enhance the stability and efficiency of the

taxicab market as a whole by ensuring that the service

providers are adequately compensated when fuel prices

rise. See Dempsey, supra, 24 Transp. L.J. at 111-14

(finding evidence of service deterioration and

24

inadequate vehicle upkeep when taxicab operators are

not adequately compensated).

Local governments also encourage clean-vehicle use

by the general public. Local programs include tax

incentives, sales rebates, parking incentives, high

occupancy vehicle (“HOV”) lane exemptions, and a host

of other incentives for fuel-efficient or clean vehicles.

Pet. 25-27. Such programs support national energy

independence and reduce greenhouse gas emissions.

Moreover, clean-vehicle incentive programs help cities

improve local air quality. This Court has properly

recognized that as a core police power function. See

Huron Portland Cement Co. v. City of Detroit, 362 U.S.

440, 442 (1960) (“Legislation designed to free from

pollution the very air that people breathe clearly falls

within the exercise of even the most traditional concept

of what is compendiously known as the police power.”).

Because clean-vehicle incentive programs fall within

fields traditionally subject to local regulation, the court

below should have applied the presumption against

preemption, and determined that the Lease Cap Rules

were not preempted.

25

Ill. ALLOWING LOCAL GOVERNMENTS TO

ADOPT INNOVATIVE CLEAN-VEHICLE

INCENTIVE PROGRAMS ADVANCES

THE GOALS OF EPCA.

Because Congress has not made its intent to

supplant state law clear and manifest, the settled rule

is that state and local governments remain free to act

“in matters requiring diversity of treatment according

to the special requirements of local conditions.” Milk

Control Board of Pennsylvania v. Eisenberg Farm

Products, 306 U.S. 346, 351 (1939). And “[o]ne of the

commonest forms of state action is the exercise of the

police power directed to the control of local conditions

and exerted in the interest of the welfare of the state’s

citizens.” Jbid. “Some of these subjects call for

uniform rules and national legislation; others can be

best regulated by rules and provisions suggested by the

varying circumstances of different localities, and

limited in their operation to such __ localities

respectively.” Gilman, 70 U.S. (3 Wall.) at 726-27. In

short, unique local conditions often require unique

local solutions, and local governments are often in the

best position to design and implement such solutions.

The management of local transportation networks

requires just this sort of “diversity of treatment”

because of local conditions. Population centers vary

greatly in their geography, weather conditions,

density, built environments, mass transit options, and

26

transportation patterns. These unique characteristics

affect a city’s transportation network. For instance,

cruising cabs, which drive around searching for

pedestrians to hail them, are successful only in larger

cities with high population densities. See Dempsey,

supra, 24 Transp. L.J. at 88. In other cities, a larger

percentage of the taxi fleet is radio-dispatched or relies

on cabstands at airports or hotels. See id. Where cabs

regularly cruise, regulators may choose to promote

engine technologies that allow easy refueling (like

hybrid-electric vehicles that are powered primarily by

gasoline or clean diesels, which both can be refueled at

neighborhood gas _ stations). Where particular

cabstands are more intensively used, on the other

hand, refueling infrastructure at these locations may

support more specialized engine technologies like

compressed natural gas or full-electric vehicles.

Cities also differ markedly with respect to the air

quality impacts of their transportation networks. Salt

Lake City and Denver, for example, have temperature

inversions during the winter that combine with their

unique geographies to greatly increase the likelihood

of smog. There also may be more tourists using

taxicabs during the winter. And cold weather may

prompt residents to shift from mass transit to more

energy-intensive modes of travel. Local governments

must account for these and other seasonal trends when

attempting to reduce overall emissions from their

transportation networks. Such local differences

27

require local solutions, and this variety can be a source

of innovation that can benefit the entire country. In

addition, local experimentation may help cities

maintain or achieve compliance with federal air quality

standards when reductions from other sources

(stationary, area, and other mobile sources) are not

sufficient. Taxicab regulations that provide incentives

for emerging clean-engine technologies can be an

important part of these efforts.

Beyond this local need for local solutions, EPCA was

enacted to “decrease dependence on foreign imports,

enhance national security, achieve the efficient

utilization of scarce resources, and guarantee the

availability of domestic energy supplies at prices

consumers can afford.” S. Rep. No. 94-516, at 117,

reprinted in 1975 U.S.C.C.A.N. 1956, 1957. Yet our

enormous dependence on automobiles and the energy

that fuels them makes it unlikely that we can achieve

these goals through federal performance standards

alone. Social and economic change in how our cities

and towns transport goods and people is also

necessary. Because modern American cities require

extreme amounts of energy to keep running and they

have long had to balance market forces with socially

beneficial outcomes, they are the ideal level of

government to test, refine, and inspire energy policies

that may ultimately meet EPCA’s goals. It is difficult

to predict what social and economic changes will be

most transformative or whether such change on a

28

national level is even possible, but one thing is clear —

we are all poorer when we do not allow our cities to

innovate and explore solutions without cost or risk to

the country, and only the possibility of gain.

Many local governments are only too happy to be one

of Justice Brandeis’s laboratories of innovation on this

and other intractable problems. In fact, there is a

sense of fraternity and friendly rivalry among many

American cities. We pay attention to each other’s

successes not only to replicate them, but also to out-do

them. We also pay attention to each other’s setbacks

to avoid having similar problems. Several national

organizations, of which three are amici here, facilitate

the exchange of information about what works, what

does not work, and what can be improved on. But

decisions like that of the court below can chill even the

most zealous experimenter. This is especially true in

tough economic times, when there is particular

reluctance to pursue innovative’ policies with

heightened litigation risks. Besides New York City,

Boston, Dallas, and King County have also been sued

for their clean-vehicle taxi regulations. And on

November 19, 2010, the Minneapolis City Council

unanimously passed the following resolution:

(T|he City of Minneapolis, in response to

the rulings in the City of New York case

and related litigation throughout the

country, has halted the enforcement of its

29

taxicab fuel efficiency ordinance

requirements found in Minneapolis Code

of Ordinance (M.C.O.) § 341.300,

originally adopted in 2006, and has been

unable to pursue new regulations aimed

at incentivizing the utilization of fuel

efficient and environmentally sustainable

taxicabs|.|

Resolution 2010R-570, available at http://

www.ci.minneapolis.mn.us/council/archives/proceedi-

ngs/2010/20101119-proceedings.pdf. Similarly, Seattle

passed an ordinance in 2008 authorizing rules

mandating vehicle size, fuel-efficiency, and emissions

requirements for new taxicabs, but has not adopted

such rules in light of the rulings in this case.

Of course in our federal system, if preemption is

warranted based upon a close reading of the relevant

statute and applicable precedents, then that is the

proper result. But, by the same token, preemption by

a judicial decision that is untethered to the statutory

language and heedless of this Court’s careful

limitations on “related to” preemption is inappropriate.

Moreover, it is a loss not only to the government

involved, but to other cities that cannot replicate, fine-

tune, or improve upen the original innovation; and it

stifles other programs that might similarly be thought

to run afoul of the statute.

30

The decision below threatens to do just that. The

holding is so broad that local governments are hesitant

to adopt clean-vehicle incentive programs with any

relation, however incidental, to fuel economy. That

disabling decision should not stand. At a minimum,

before it becomes law, it should be reviewed by this

Court.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted

MARA S. GEORGE:

Corporation Counsel!

of the City of Chicago

BENNA RUTH SOLOMON”

Deputy Corporation Counsel!

DIANE M. PEZANOSKI

Deputy Corporation Counse!

MYRIAM ZRECZNY KASPER

Chief Assistant Corporation

Counsel

GRAHAM G. MCCAHAN

Assistant Corporation Counsel]

30 N. LaSalle St., Suite 800

Chicago, IL 60602

(312) 744-7764

benna.solomon@cityofchicago.org

*( ‘ounsel of Res ord

December 9, 2010