IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10470

ASSOCIATION OF TAXICAB OPERATORS USA, 

 Plaintiff–Appellant

v.

CITY OF DALLAS,

 Defendant–Appellee

Appeal from the United States District Court

for the Northern District of Texas

Before JONES, DENNIS, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge: 

The City of Dallas, Texas (“Dallas” or the “City”) enacted an ordinance

offering taxicabs certified to run on compressed natural gas (“CNG”) a “head-ofthe-line” privilege at a municipally-owned airport, Love Field. The measure

permits certified CNG-fueled taxicabs to “cut” ahead of gasoline-powered taxis

in the queue for soliciting passengers at Love Field. The Association of Taxicab

Operators, USA (“ATO”), which represents cab operators in the Dallas and Fort

Worth area, sued, claiming the ordinance is preempted by the Clean Air Act, 42

United States Court of Appeals

Fifth Circuit

F I L E D

June 13, 2013

Lyle W. Cayce

Clerk

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U.S.C. § 7543(a). Finding the ordinance is not preempted, we AFFIRM the

district court’s summary judgment for the City. 

FACTS AND PROCEEDINGS

In March 2010, Dallas passed Ordinance 27831, establishing “an incentive

program that promotes the use of [CNG] in taxicabs authorized to operate at

Dallas Love Field.” Ordinance 27831’s preamble states that Dallas and Tarrant

Counties are nonattainment areas for ozone.1It further specifies that vehicles

powered by CNG emit fewer air pollutants than traditional vehicles.2 By its

operative provisions, Ordinance 27831 amended Dallas’s City Code to grant a

“head-of-the-line” privilege to CNG-powered taxicabs that collect passengers at

Love Field, an airport owned by the City. A “taxicab verified as a dedicated

[CNG] vehicle” is entitled “to advance to the front of a taxicab holding or

dispatch area, ahead of all ineligible taxicabs . . . .” As implemented, the headof-the-line privilege only applies to cabs making unscheduled pick ups of

passengers at Love Field. Taxicabs may deposit passengers at Love Field or

arrive for a prearranged pick up without priority based on CNG status. The City

grants no head-of-the-line privilege to taxis, CNG-fueled or otherwise, anywhere

else within its limits. 

The law defines a “dedicated [CNG] vehicle” as “a vehicle that operates

exclusively on [CNG].” The owner or operator of a dedicated CNG vehicle

wishing to exercise the head-of-the-line privilege first must apply to Dallas’s

Director of Aviation, submitting: (1) a name, address, and telephone number; (2)

a description of the cab; (3) proof either that the vehicle was “equipped by the

1 Ozone nonattainment areas are “areas whose ozone levels currently exceed the

maximum level permitted by” the National Ambient Air Quality Standards promulgated under

the Clean Air Act. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 476 (2001); see 42 U.S.C.

§ 7407(d)(1).

2 According to a Dallas Environmental Coordinator, a CNG vehicle emits approximately

seventy percent fewer ozone-generating pollutants than a gasoline vehicle.

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original manufacturer with an engine exclusively powered by [CNG] and has

remained unaltered,” or that the cab was “converted to be equipped with an

engine exclusively powered by [CNG], and the conversion was in compliance

with” federal regulations; and (4) “[a]ny other information . . . reasonably

necessary to determine whether” the cab runs exclusively on CNG. The Director

of Aviation issues all successful applicants—hereinafter called “CNG cabs”—a

nontransferable emblem or sticker identifying the cab as a CNG cab. Ordinance

27831 also authorizes a criminal penalty of up to $500 for a conviction for

“violating a provision of this ordinance.” 

Ordinance 27831 took effect on April 10, 2010. Five days later, ATO filed

suit in the United States District Court for the Northern District of Texas,

seeking a declaratory judgment that Ordinance 27831 is preempted by § 209(a)

of the Clean Air Act, 42 U.S.C. § 7543(a), which in relevant part preempts “any

standard relating to the control of emissions from new motor vehicles or new

motor vehicle engines subject to this part,” § 7543(a).3 ATO also requested a

permanent injunction barring enforcement of the head-of-the-line privilege for

CNG cabs. ATO moved immediately for a temporary restraining order (“TRO”)

and a preliminary injunction against the law. The district court granted a TRO,

halting enforcement of Ordinance 27831 initially. However, the district court

denied the request for a preliminary injunction several months later, after

conducting an evidentiary hearing. In its preliminary injunction order, the

district court determined ATO had not demonstrated a likelihood of successfully

showing that § 209(a) preempts Ordinance 27831. The court cited the long

history of state and local taxicab regulation, as well as Congress’s determination

to exempt from preemption local air pollution control measures focused on the

3 Dallas taxicab companies relying on Ordinance 27831 to invest substantial sums in

developing a CNG fleet to operate at Love Field—namely, Irving Holdings, Inc. and Yellow

Checker Cab Companies—later intervened as defendants in support of Dallas.

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use of vehicles. It further found that Ordinance 27831, an incentive program

that changes only the order of operations in Love Field taxi dispatching, was not

an enforceable “standard relating to the control of emissions” implicated by §

209(a)’s express preemption provision. After the district court’s denial of

preliminary injunctive relief, Dallas resumed implementation of Ordinance

27831.4 

In August 2011, the City filed a motion for summary judgment on all of

ATO’s claims. In its response, ATO relied in part on affidavits from drivers of

gasoline-powered cabs who solicited fares primarily at Love Field to illustrate

the negative consequences of Ordinance 27831. The statements were taken in

November 2010. The driver-affiants reported the head-of-the-line privilege had

led to a rise in the number of CNG cabs servicing Love Field and had slashed

business by as much as fifty percent for traditional cabs. By one ATO-member

driver’s count, forty-six CNG cabs operated at Love Field.5 As a result, they

reported, some drivers of gasoline-powered taxicabs worked longer hours to

make ends meet and were forced to weigh the expense of purchasing a CNG

vehicle against the prospect of giving up their work altogether. 

Still, the parties do not dispute, Love Field is hardly the only route open

to cab drivers in Dallas. ATO’s Chairman of the Board stated that as of May

2010 there were approximately 2800 taxicabs in Dallas, and only between 150

and 200 of them regularly operated at Love Field. Similarly, Dallas’s

4 ATO appealed the denial of preliminary injunctive relief to this court. ATO did not

timely file its brief and record excerpts, and the clerk entered an order dismissing the appeal

under Fifth Circuit Rule 42.3 for want of prosecution. During the pendency of that appeal,

ATO filed a second motion for a TRO and preliminary injunction. The district court denied the

motion without prejudice, citing its lack of jurisdiction over the case during ATO’s appeal.

5Dallas’s Transportation Regulation Manager specified that forty-three CNG cabs were

authorized to operate in Dallas as of April 2010. ATO maintains, but without citation to

record evidence, that the number of CNG cabs at Love Field grew subsequently to almost

ninety. 

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Transportation Regulation Manager reported that in February 2010 there were

2022 cabs authorized to operate in Dallas and 1805 drivers with taxicab licenses. 

The district court found no genuine issue of material fact appropriate for

trial, granted Dallas’s motion, and rendered final judgment on nearly identical

grounds as in its preliminary injunction order. ATO appealed. 

STANDARD OF REVIEW

We review the district court’s summary judgment de novo and apply the

same standard as the district court. Dameware Dev., L.L.C. v. Am. Gen. Life Ins.

Co., 688 F.3d 203, 206 (5th Cir. 2012). We may grant summary judgment if the

record, viewed in the light most favorable to the nonmovant, “demonstrates that

there is no genuine issue of material fact and that the moving party is entitled

to judgment as a matter of law.” United States v. Renda, 709 F.3d 472, 478 (5th

Cir. 2013); see FED. R. CIV. P. 56(a). A dispute gives rise to a genuine issue of

material fact if the evidence permits a reasonable jury to rule in favor of the

nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

“[C]onclusory statements, speculation, and unsubstantiated assertions cannot

defeat a motion for summary judgment.” RSR Corp. v. Int’l Ins. Co., 612 F.3d

851, 857 (5th Cir. 2010). We require “the party opposing the summary judgment

. . . to identify specific evidence in the record and to articulate precisely how this

evidence supports his claim.” Id. 

DISCUSSION

ATO argues the Clean Air Act, in § 209(a), preempts Dallas from imposing

the head-of-the-line privilege in Ordinance 27831. The wellspring of preemption

doctrine is the Constitution’s Supremacy Clause, which states:

This Constitution, and the Laws of the United States which shall be

made in Pursuance thereof; and all Treaties made, or which shall be

made, under the Authority of the United States, shall be the

supreme Law of the Land; and the Judges in every State shall be

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bound thereby, any Thing in the Constitution or Laws of any State

to the Contrary notwithstanding.

U.S. CONST. art. VI, cl. 2; see Kurns v. R.R. Friction Prods. Corp., 132 S. Ct.

1261, 1265 (2012). In all preemption cases, “the purpose of Congress is the

ultimate touchstone.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). Principles of federalism

inform our search for congressional intent. Courts must assume “that the

historic police powers of the States [a]re not to be superseded by the Federal Act

unless that was the clear and manifest purpose of Congress.” Altria Grp., Inc.

v. Good, 555 U.S. 70, 77 (2008) (quoting Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947)). 

A federal law may preempt state law expressly, when Congress explicitly

provides. See Kurns, 132 S. Ct. at 1265–66. A federal law may also preempt

state law impliedly, when state law either conflicts with federal law or when a

federal statute exclusively occupies the field in which the state has legislated. 

See id. ATO rests its case wholly on the text of § 209(a) of the Clean Air Act, an

express preemption provision. Determining whether Congress has expressly

preempted state law begins with the federal statutory language itself, “which

necessarily contains the best evidence of Congress’ pre-emptive intent.” CSX

Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). “[W]hen 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 Grp., 555 U.S.

at 77 (quoting Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005)). 

Section 209(a) provides:

No State or any political subdivision thereof shall adopt or attempt

to enforce any standard relating to the control of emissions from

new motor vehicles or new motor vehicle engines subject to this

part. No State shall require certification, inspection, or any other

approval relating to the control of emissions from any new motor

vehicle or new motor vehicle engine as condition precedent to the

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initial retail sale, titling (if any), or registration of such motor

vehicle, motor vehicle engine, or equipment.

42 U.S.C. § 7543(a). Clarifying the limits of § 209(a)’s preemptive reach is §

209(d), which states:

Nothing in this part shall preclude or deny to any State or political

subdivision thereof the right otherwise to control, regulate, or

restrict the use, operation, or movement of registered or licensed

motor vehicles.

42 U.S.C. § 7543(d). 

ATO argues that Ordinance 27831 fails as preempted by § 209(a)’s first

sentence, because in enacting the head-of-the-line privilege, Dallas “adopt[ed]

or attempt[ed] to enforce [a] standard relating to the control of emissions from

new motor vehicles or new motor vehicle engines subject to this part,” 42 U.S.C.

§ 7543(a). We address whether Ordinance 27831 imposes any such “standard,”

either on its face, or as ATO also urges, by the inexorable, coercive effects

flowing from its enforcement.6 

A. Whether Ordinance 27831 Imposes a Preempted “Standard” on its

Face

ATO’s first contention is the head-of-the-line privilege directly imposes a

“standard for taxicabs [of] dedicated CNG.” Applying the definition of a § 209(a)

“standard” the Supreme Court discerned in Engine Manufacturers Association

v. South Coast Air Quality Management District (EMA), 541 U.S. 246 (2004), we

6 Finding the law does not impose a “standard,” we need not address whether the

statute “relat[es] to the control of emissions” or concerns “new motor vehicles or new motor

vehicle engines subject to this part.” 42 U.S.C. § 7543(a). Of course, we could not conclude

that § 209(a) preempts a state law unless the state law meets those latter requirements, in

addition to serving as a “standard.” See § 7543(a). Likewise, neither do we reach whether

Ordinance 27831 is exempted from preemption under § 209(d) as a permissible effort by Dallas

“to control, regulate, or restrict the use, operation, or movement of registered or licensed motor

vehicles.” § 7543(d); see Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1094 (D.C. Cir. 1996)

(describing that § 209(d) safeguards the historic power of “states to adopt in-use

regulations—such as carpool lanes, restrictions on car use in downtown areas, and programs

to control extended idling of vehicles—that are expressly intended to control emissions”).

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disagree. The Court in EMA began its analysis saying that “standard” most

generally means “that which ‘is established by authority, custom, or general

consent, as a model or example; criterion; test.’” 541 U.S. at 252–53 (quoting

WEBSTER’S SECOND NEW INTERNATIONAL DICTIONARY 2455 (1945)). The Court

then explicitly narrowed the meaning of “standard” in § 209(a)’s statutory

context, highlighting that it refers to a mandatory, pollution-related obligation: 

The criteria referred to in § 209(a) relate to the emission

characteristics of a vehicle or engine. To meet them the vehicle or

engine must not emit more than a certain amount of a given

pollutant, must be equipped with a certain type of pollution-control

device, or must have some other design feature related to the control

of emissions. 

541 U.S. at 253 (emphasis added); see also id. (adding that “[t]his interpretation

is consistent with the use of ‘standard’ throughout Title II of the [Clean Air Act]

(which governs emissions from moving sources) to denote requirements such as

numerical emission levels with which vehicles or engines must comply . . . or

emission-control technology with which they must be equipped”) (emphasis

added) (internal citations omitted).7 The Court in EMA, accordingly, found that

directives by a California air pollution control body to certain municipal and

private vehicle fleets to purchase reduced-emission vehicles were an “attempt to

enforce” a “standard.” 541 U.S. at 255 (internal quotation marks omitted). It

was, the Court twice elaborated, “[a] command, accompanied by sanctions, that

7 As the Oxford English Dictionary defines, “standard,” in its oldest sense, is “[a]

military or naval ensign,” such as “the distinctive ensign of a king, great noble, or commander,

or of a nation or city.” 2 OXFORD ENGLISH DICTIONARY 814 (compact ed. 1979). “Standard,” as

in “standard of measure,” appeared to develop figuratively from the word’s connotation of

hierarchical, martial uniformity: “the king’s standard being the point of reunion of the army,

and the centre from which commands are issued.” Id.

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certain purchasers may buy only vehicles with particular emission

characteristics.” Id. (emphasis added).8

As ATO does not dispute, Ordinance 27831 is not phrased as a “command,

accompanied by sanctions,” EMA, 541 U.S. at 255, to adopt CNG technology. 

Nowhere does the Dallas law require cab drivers to acquire or operate CNG cabs. 

By its terms, Ordinance 27831 demands no more of traditional cabs than that,

if they wish to make unscheduled pick ups at Love Field, they honor the

head-of-the-line privilege that CNG cabs may invoke. It provides an incentive

to encourage cab drivers to transition to CNG technology, and we take

instruction from the Court in EMA’s clarification that it was not reaching

whether an incentive to adopt pollution-control measures would be a “standard”

preempted by § 209(a). 541 U.S. at 254–55, 258. In considered discussion,

Justice Scalia, writing for the Court, noted such incentive programs “are

significantly different from command-and-control regulation,” and that:

Suffice it to say that nothing in the present opinion necessarily

entails pre-emption of voluntary programs. It is at least arguable

that the phrase ‘adopt or attempt to enforce any standard’ refers

only to standards that are enforceable—a possibility reinforced by

the fact that the prohibition is imposed only on entities (States and

political subdivisions) that have power to enforce. 

8The ruling in EMA is consistent with our sister circuits’ pre-EMA precedent that state

laws requiring that specific and certain percentages of auto sales be of low-emission motor

vehicles are also preempted by § 209(a). See Ass’n of Int’l Auto. Mfrs., Inc. v. Comm’r, Mass.

Dep’t of Envtl. Prot., 208 F.3d 1, 6–7 (1st Cir. 2000); Am. Auto. Mfrs. Ass’n v. Cahill, 152 F.3d

196, 200 (2d Cir. 1998). The Ninth Circuit has subsequently applied EMA to other preemption

provisions, to uphold or bar state emissions regulations. Compare Jensen Family Farms, Inc.

v. Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934, 938–40 (9th Cir. 2011)

(finding California rules related to registration and fees for diesel engines used in agriculture

were not preempted by § 209(e) of the Clean Air Act), with Pac. Merch. Shipping Ass’n v.

Goldstene, 517 F.3d 1108, 1114 (9th Cir. 2008) (holding California prohibitions on emissions

from diesel engines used by ships in California coastal waters were a preempted “standard”

under § 209(e) of the Clean Air Act). 

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Id. at 258. We agree with the district court in concluding that there is no

language in Ordinance 27831 creating a standard that is enforceable to convert

cabs from gasoline to CNG power. See EMA, 541 U.S. at 258. It is a compelling

offer, not a compelled restraint. All Dallas may “enforce” under the law is

compliance with the head-of-the-line privilege and the procedure for verifying

dedicated CNG vehicles. We conclude that Ordinance 27831, enacted using

traditional police powers, is not “superseded by . . . [any] clear and manifest

purpose of Congress,” above all where Congress’s term “standard” has been

identified as one “susceptible” to a mandate/incentive distinction. See Altria

Grp., 555 U.S. at 77 (internal quotation marks omitted). 

B. Whether Ordinance 27831 is a “Standard” because of its Indirect

Effects

ATO additionally argues that even if Ordinance 27831 is not drafted

unambiguously as a § 209(a) “standard,” the head-of-the-line privilege’s indirect

effects render it one in application. It appears only one published district court

decision, Metropolitan Taxicab Board of Trade v. City of New York (Metro. II),

633 F. Supp. 2d 83, 103–05 (S.D.N.Y. 2009), aff’d on other grounds by 615 F.3d

152 (2d Cir. 2010), addresses whether an incentive may be preempted by §

209(a) because its application would achieve, effectively, a mandatory

“standard.” 

In Metro. II, New York City adopted a measure to raise the rate at which

cab owners could lease hybrid vehicles to cab drivers for a twelve-hour shift by

three dollars, but to reduce the same rate owners could charge for non-hybrid

and non-wheelchair-accessible cabs by as much as twelve dollars. Id. at 85.9In

9

In a prior case, Metropolitan Taxicab Board of Trade v. City of New York (Metro. I),

No. 08-cv-7837(PAC), 2008 WL 4866021 (S.D.N.Y. Oct. 31, 2008), the same district court

preliminarily enjoined an earlier New York City law, which mandated that all new taxis meet

a miles per gallon minimum. The court found the plaintiffs “demonstrated a likelihood of

success of showing” that the New York City measure was preempted by the federal Energy

Policy and Conservation Act of 1975 (“EPCA”), 49 U.S.C. § 32919, which sets national fuel

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determining whether the scheme was preempted under the EPCA and,

alternatively, under § 209(a), the district court asked whether the “new rules are

a mandate to taxicab owners to purchase only hybrid or clean-diesel vehicles,”

and if so, “whether such a mandate is preempted by federal law.” Metro. II, 633

F. Supp. 2d at 85. The court was careful to note that “a local law is not

preempted when it only indirectly regulates parties within a preempted field and

presents regulated parties with viable, non-preempted options.” Id. at 95–96. 

In distilling those principles, the Metro. II court relied on Supreme Court

precedent interpreting the preemption provision in the Employee Retirement

Income Security Act of 1974 (“ERISA”), which “supercede[s] any and all State

laws insofar as they may now or hereafter relate to any employee benefit plan.” 

29 U.S.C. § 1144(a); see Metro. II, 633 F. Supp. 2d at 93–96; N.Y. State

Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645

(1995); Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A.,

519 U.S. 316 (1997). In Travelers Insurance, 514 U.S. 645, the Supreme Court

analyzed surcharges imposed by New York to encourage health insurance

customers, including ERISA plans, to choose Blue Cross & Blue Shield. The

Court found the surcharges altered ERISA plans’ “shopping decisions,” but did

“not affect the fact that any plan will shop for the best deal it can get, surcharges

or no surcharges.” Id. at 660; see Dillingham Constr., 519 U.S. at 332–33. The

Court concluded that the scheme was meaningfully distinct from state laws that

“mandated employee benefit structures or their administration,” or “provid[ed]

alternative enforcement mechanisms.” Travelers Ins., 514 U.S. at 658. It

economy requirements. Metro. I, 2008 WL 4866021, at *15. It was in reaction to the Metro.

I ruling that New York City adopted the alternative approach at issue in Metro. II. Metro. II,

633 F. Supp. 2d at 85. Notably, the Metro. I court found the plaintiffs did not make a likely

showing the law was preempted by the Clean Air Act, because the miles per gallon minimum

was “silent as to emissions” and was not “a de facto regulation of emissions.” Metro. I, 2008

WL 4866021, at *14.

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further distinguished the hypothetical “state law [that] might produce such

acute, albeit indirect, economic effects, by intent or otherwise, as to force an

ERISA plan to adopt a certain scheme of substantive coverage or effectively

restrict its choice of insurers,” such that it would qualify for preemption. Id. at

668; see also Dillingham Constr., 519 U.S. at 333 (“It cannot be gainsaid that

[the California law at issue] has the effect of encouraging apprenticeship

programs—including ERISA plans—to meet the standards set out by California,

but it has not been demonstrated here that the added inducement created by the

wage break available on state public works projects is tantamount to a

compulsion upon apprenticeship programs.”). 

The Metro. II district court found the New York City measure was so

coercive as to indirectly mandate that cab owners purchase hybrids,

“constitut[ing] an offer which can not, in practical effect, be refused.” 633 F.

Supp. 2d at 99. It concluded the plaintiffs established a likelihood of showing

the lease rates imposed a preempted standard under § 209(a), as they

“effectively force Fleet Owners to purchase hybrid taxicabs, and the purpose and

effect ofthe rules is to reduce emissions.” Id. at 105. The district court similarly

found the plaintiffs established a likelihood of success in proving the rule was

preempted under the EPCA. Id. at 103. It granted the plaintiffs’ motion to

preliminarily enjoin the rule. Id. at 106. The Second Circuit affirmed, but

without determining whether the law was preempted by § 209(a). Metro. II, 615

F.3d at 158. 

ATO argues, echoing the Metro. II district court, that the economic

hardship wrought on traditional cabs at Love Field by Ordinance 27831 is “an

effective mandate” to convert to CNG vehicles or to abandon “their chosen field

of work.” It specifies that “drivers had one, basic option if they wish to remain

in business at Love Field: drive a CNG taxicab.” The summary judgment

evidence, particularly the taxi driver affidavits, does support the inference that

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Ordinance 27831’s head-of-the-line privilege has decreased business for

traditional cabs servicing Love Field and increased the ranks of CNG cab

drivers. We may further infer that the law alters the “shopping decisions” for

traditional cab drivers in determining where in the City to operate. See

Travelers Ins., 514 U.S. at 660. But we agree with the district court that ATO

does not offer record evidence to show that the law effectively compels a

particular course of action. See RSR Corp., 612 F.3d at 857. ATO does not point

to evidence, for instance, that CNG cabs may displace traditional cabs servicing

other parts of the City, or that traditional cab drivers could not compensate for

losses at Love Field by soliciting passengers elsewhere. Rather, the undisputed

facts show that of the nearly 2800 cabs in Dallas, at most 200 operate regularly

at Love Field. By those numbers, even if CNG cabs were to gain exclusive

command of the Love Field route by virtue of Ordinance 27831, they would

comprise, at most, seven percent of the Dallas fleet. As Dallas further

highlights, gasoline cab drivers enjoy some competitive advantages over CNG

cab counterparts, such as the right to collect a surcharge from customers when

gasoline rises above $3.01 per gallon. That Ordinance 27831 may have its

intended effect and substitute CNG cabs for traditional cabs at Love Field does

not show that Dallas cab drivers face “such acute, albeit indirect, economic

effects . . . as to force” them to switch vehicles. See Travelers Ins., 514 U.S. at

668; Metro. II, 633 F. Supp. 2d at 105.10

10 ATO also relies on the Second Circuit decision in Metro. II, arguing that this court

need not determine that Dallas’s scheme amounts to an economic mandate to find it is

preempted, since it “relates to” emissions control. The Second Circuit in Metro. II construed

the EPCA’s preemption provision, which broadly preempts state “law[s] or regulation[s]

related to fuel economy standards,” 49 U.S.C. § 32919(a); see Metro. II, 615 F.3d at 157–58,

and not state “standard[s] relating to the control of emissions,” as in § 209(a), 42 U.S.C. §

7543(a) (emphasis added). Even if Ordinance 27831 “relat[es] to the control of emissions,” §

7543(a), that would not answer whether it is a preempted “standard,” as defined in EMA. As

described above, especially informed by the Supreme Court’s considered discussion in EMA,

we hold that in granting a head-of-the-line privilege to CNG cabs, Ordinance 27831 does not

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Reaching that conclusion does not require us to parse precisely when an

incentive program might turn sufficiently coercive to qualify as a de facto

“standard.” That question, factually and legally, remains for future cases. The

record here, which ATO had the opportunity to develop in discovery, simply does

not support ATO’s theory of preemption by acute economic coercion. We

conclude that the indirect consequences of Ordinance 27831 do not render it

preempted by § 209(a). 

CONCLUSION

In light of the foregoing, we AFFIRM summary judgment in favor of

Dallas. 

by its terms impose a “standard.” 

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