### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10470

ASSOCIATION OF TAXICAB OPERATORS USA, Plaintiff–Appellant

v. CITY OF DALLAS, Defendant–Appellee

A ppeal from the United States District Court f or the Northern District of Texas

Before JONES, DENNIS, and HIGGINSON, Circuit Judges. HIGGINSON, Circuit Judge: The City of D allas, 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 air p o r t, Love Field. The measure permits certified CNG-fueled taxicabs to “cut” a head of g asoline-powered taxis in the queue for soliciting p assengers at Love Field. The Association of Taxicab Operators, USA ( “ATO”), which r epresents cab operators i n t he Dallas and Fort Worth area, sued, c laiming the o rdinance is p reempted by the Clean Air Act, 42 U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 13, 2013 Ly l e W . Cay ce Clerk Case: 12-10470 Document: 00512273521 Page: 1 Date Filed: 06/13/2013No. 12-10470

U.S.C. § 7543(a). F inding the ordinance i s n ot preempted, we AFFIRM the district court’s summary judgment for the City. FACTS AND PROCEEDINGS In March 2010, D allas passed O rdin a n c e 2 7 8 3 1 , establishing “an incentive
p r o g r am that promotes the u se of [CNG] in taxicabs authorized t o operate at Dallas Love Field.” O rdinance 27831’s preamble states that Dallas and Tarrant Counties are nonattainment areas for o zone. 1 It further specifies that vehicles powered by CNG emit f e w e r a ir pollutants t h an traditional vehicles. 2 By its operative provisions, Or d i n ance 27831 amended Dallas’s City Code t o grant a “head-of-the-line” privilege to CNG-powered taxicabs that collect passengers at Love Field, an airport owne d b y the City. A “taxicab verified as a dedicated [CNG ] vehicle” is entitled “to advance to the f ront of a taxicab holding or dispatch area, a head of all ineligible taxicabs

. . . .” As implemented, the headof-the-line privilege only a pplies to cabs ma k i n g u n scheduled pick ups of
passengers at Love Field. Taxicabs may deposit passengers a t Love Field or arrive for a prearranged pick up without priority based on CNG status. The City grants no head-of-the- l i ne privilege to taxis, CNG-fueled or otherwise, anywhere else within its limits. The law defines a “dedicated [CNG] vehicle” as “a ve h i cle t hat operates exclusively on [CNG].” The owner o r operator of a dedicated CNG vehicle wishing to exercise the head-of-the-line privilege first must a p ply to Dallas’s Director of Aviation, submitting: (1) a name, address, a nd telephone number; (2)

a description of the cab; (3) proof e ither that t he vehicle was “equipped by the

1 O zone nonattainm ent areas are “areas w hos e ozone levels currently exceed the
ma x i mu m l e v e l p e r mi t t e d by” the N ational A m bient Air Q uality Stand ard s p rom ulgated un d e r the Clean Air Act. Whi tm an v
. A m
. Trucki ng A ss’ns , 531 U. S. 457, 476 ( 2001) ; see 42 U

. S. C

. § 7407( d ) ( 1)

.

2 Accord ing to a D allas Environm ent a l C o o r d i n a t o r , a C N G vehicle em its ap p roxim ately
s eventy p ercent f

ew er ozone- generating p ollutants than a gas oline vehicle.
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original man u f

a c t u r er with an engine exclusively powered b y [ CNG] and has remained unaltered,” or that the cab w a s “ c o n v erted to be equipped with an engine e xclusively powered by [CNG], and the conversion was in compliance with” f e d e r a l r egulations; and ( 4) “ [a]ny other information

. . . reasonably
necessary to determine whether” the cab runs exclusively on CNG. The Director of Aviation i s s ues a ll successful applicants—hereinafter called “CNG cabs”—a nontransferable e mblem or sticker i dentifying the cab a s a CNG c ab. Ordinance 27831 also authorizes a c riminal penalty of up to $500 f or a conviction for “violating a provision of this ordinance.” Ordinance 27831 took effect on April 10, 2010. Five days l ater, ATO filed suit in the United States D istrict Court for the Northern District of Texas, seeking a d eclaratory judgment that Ordinance 27831 is p reempted by § 209(a) of the Clean Air Act, 42 U .S.C. § 7543(a), which in relevant part p r eempts “any standard relating to the control of e miss i o n s from new motor vehicles or new motor vehicle engines subject to this p a rt,” § 7543(a). 3 A T O a l s o requested a permanent injunction barring enforcement o f the h ead-of-the-line privilege for CNG cabs. ATO moved immediately for a temporary restraining order (“TRO”) and a p reliminary i njunction against t he law. T he d i strict court g ranted a TRO, halting enforcement o f Ordinance 27831 i nitially. H owever, the district court denied the request f

o r a preliminary injunction seve r a l months l a ter, after conducting an e videntiary he a r i n g
. In its preliminary injunction order, the district court determined ATO had not demonstrated a likelihood of s uccessfully showing that § 209(a) preempts Ordinance 2 7831. 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 D allas taxicab com p anies relying on Ord inance 27831 to inves t s ubs tantial s um s in d evelop ing a C N G fleet to op erate at Love F ield

— nam ely, Irving H old ings , Inc. and Y ellow Check er Cab C om panies

— later intervened as d ef end ants in s up p ort of D allas

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use of vehicles. I t further found that O rdinance 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 e x p r ess preemption provision. After the district court’s denial of preliminary injunctive r elief, Dallas resumed implementa tion of Ordinance 27831. 4 In August 2011, the C ity filed a moti o n f or s ummary judgment on all of ATO’s claims. I n its response, ATO reli e d in part on affidavits from drivers of gasoline-powered c abs who soli c i t ed f ares primarily at Love Field to illustrate the negative consequences of Ordinance 27831. The statements were taken in November 2010. The driver-affiants reported t he head-of-the-line privilege had led to a rise in the n umber of CNG c a b s servicing Love Field and had slashed business by as much a s f ifty p ercent for traditional c abs. B y one ATO-member driver’s c ount, f

or t y - s i x C N G cabs operated at Love Field. 5 As a result, they reported, some drivers of g a soline-powe r e d t a xicabs w orked longer hours to make ends m eet and were forced to weigh the e xpense of p u rchasing a CNG vehicle against the prospect of giving up their work altogether. Still, t he parties do not dispute, Love Field is hardly the only route open to cab d rivers in Dal l a s
. A T O ’ 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 r e gularly operated at Love F ield. Similarly, Dallas’s

4 ATO ap p ealed the d enial of p relim inary injunctive relief to this court. ATO d id not tim ely f ile its brief and record excerp ts , and the clerk entered an ord er d is mis s ing the ap p eal und er Fif

th Circuit Rule 4 2

. 3 f

or w ant of p ros ecution. During the p end ency of that ap p eal, ATO filed a s econd m otion f or a TRO and p relim inary injunction. The d is trict court d enied the
m otion w ithout prejud ice, citing its lack of juris d iction over the cas e d uring ATO ’s ap p eal.

5 D a l l a s’ s T r a n s p ortation R egulation M anager s p ecif ied that f

orty- three CN G c a b s we r e authorized to op erate in D allas as of Ap ril 2010. ATO m aintains , but wit h o u t c i t a t i o n to record evid ence, that the num ber of CN G cabs at Love F i e l d grew subs equently to alm os t ninety.
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Transportation Regulation Manager reported t hat in February 2010 there were 2022 cabs a uthorized t o operate in Dallas and 1805 drivers w ith taxicab l icenses. The district c ourt f

ound no genuine issue of material fact appropriate for trial, granted Dallas’s motion, and rendered final judgment on n early i dentical 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. A m. Gen. Life Ins. Co. , 6 88 F.3d 203, 206 (5th Cir. 2012). We m ay grant summary j udgment if the record, viewed in the light most favorable to t he nonmovant, “demonstrates that there is n o genuine i ssue 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. 2 013); see F E D

. R. C I V

. P. 56(a). A d is p u t e g i v e s rise to a genuine issue of material fact if the evidence permits a reasonable jury t o r u l e in favor of the nonmoving part y
. Anderson v. Liberty Lobby, I nc. , 477 U .S. 242, 248 (1986). “[C]onclusory statements, speculation, a nd unsubstantiated assertions cannot defeat a motion f

or s ummary judgment.” R S R C o r p
. v
. Int’l Ins. Co. , 612 F.3d 851, 857 (5th Cir. 2010). We r equire “the party opposing the s ummary judgment

. . . to identify specific evidence in the record and to a rticulate p recisely how this evidence supports his claim.” Id. DISCUSSION ATO argues the Clean Air Act, i n § 209(a), preempts Dallas from imposing the head-of-the-line p rivilege in Ordinance 2 7831. The w ellspring 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 a ll Treaties made, or which shall be
m a d e , under the A uthority of the United States, shall b e t h e supreme Law of the L and; and t he Judges in every Sta t e s h a l l be

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bound thereby, any Thing in the Constitution or Laws o f any State to the Contrary notwithstanding. U .S. C O N S T

. art. VI, cl. 2; see Kurns v. R.R. Friction Prods. C orp. , 1 3 2 S

. C t

. 1261, 1265 (2012). I n a ll preemption cases, “the p urpose of Congress is the ultimate touchstone.” Wyeth v. Levine , 555 U.S. 555, 565 (2009) (q u oting M e d t r o n ic, Inc. v
. Lohr , 518 U.S. 470, 485 (1996)). Principles of federalism inform our search f

o r c ongressional 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 , 5 5 5 U

. S. 70, 77 ( 2008) (quoting R ice v. Santa Fe Elevator Corp. , 331 U.S. 218, 230 (1947)). A federal law may preempt state l aw expressly, w hen Congress e xplicitly 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 st a tute exclusively occupies the field in which t he state h as legislated. See id. ATO rests i ts case wholly on the text of § 2 09(a) of the Clean Air Act, an express p reemption provision. Determining whether C ongress h a s e x pressly preempted state la w b e gins with the federal statutory language itself, “which necessarily contains t he best evidence of Congress’ p re-emp t i v e intent.” CSX Transp., Inc. v. Easter w o o d , 5 07 U.S. 6 58, 6 64 (1993). “[W]hen the text of a pre-emption clause is susceptible of m ore than one pl a u s i b l e reading, courts ordinarily ‘accept the reading that disfavors p r e - 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 t he c ontro l o f e m issions from
new motor v ehicles or new motor v ehicle engines subjec t t o this part. No State shall require certification, inspectio n , or any other approval relating t o t h e control of emissions from any new m otor vehicle o r new motor vehicle engine as con d i t i o n precedent to t h e
6 Case: 12-10470 Document: 00512273521 Page: 6 Date Filed: 06/13/2013No. 12-10470

initial retail sale, titling (if any), or registration of such m o t or vehicle, motor vehicle engine, or equipment. 42 U.S.C. § 7543(a). C larifying the limits of § 209(a)’s p r eemptive r e ach is § 209(d), which states: Nothing in this part shall preclude or deny to any State or political subdivision thereof the right ot h e r w i se to control, regulate, or restrict the use, o p e r a t ion, or m ovement o f registered or licensed motor vehicles. 42 U.S.C. § 7543(d). ATO argues that O rdinance 27831 fails as preempted by § 209(a)’s first

s e ntence, because in enacting the head-of-the-line privilege, Dallas “adopt[ed] or attempt[ed] to enforce [a] s tandard relating to the control of emissions from

new motor vehicles or new motor vehicle engines s ubject to this part,” 42 U.S.C. § 7543(a)

. We address whether Ordinance 27831 imposes any s uch “standard,” eithe r o n its face, or as A TO also urges, by the inexorable, coercive effects flowing from its enforcement. 6 A. Whether Ordinance 27831 Imposes a Preempted “Standard” on i ts Face ATO’s first contention is the head-of-the-line privilege d irectly imposes a “standard for taxicabs [of] d edicated CNG.” Applying t he d efinition 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 F ind ing the law d oes not im p os e a “s tand ard , ” w e n e e d not ad d res s w hether the
s tatute “relat[ es ] to the control of em is s ions ” or concerns “new m otor vehicles or new m otor
v e hicle engines s ubject to this p art. ” 42 U. S. C. § 7543( a)

. Of cours e, w e could no t c o n c l u d e that § 209( a ) p r e e m p t s a s tate law unles s the s tate law m eets thos e latter requirem ents , in ad d ition to s erving as a “s tand a r d

. ” See § 7543( a)

. Lik ew is e, neither d o w e reach w hether O rd inance 27831 is exem p ted f rom p reem p tion und er § 209( d) as a p erm is s ible ef f ort by D allas “to control, regulate, or res trict the us e, op eration, or m ovem ent of regis tered or licens ed m otor vehicles .” § 7543( d ) ; see Engi ne M f rs. A ss’n v
. EP

A , 8 8 F

. 3d 1075, 1094 ( D

. C. C ir. 1996) ( d es cribing that § 209( d ) s af eguard s the his toric pow er of “s tates to ad op t in

- u se regulations

— s uch as carp ool lanes , res trictions on car us e in d ow ntow n areas , and p rogram s to control extend ed id ling of vehi c les

— that are exp res s ly intend ed to control em is s ions ”)

. 7 Case: 12-10470 Document: 00512273521 Page: 7 Date Filed: 06/13/2013No. 12-10470

d i s a g ree. The Court in EMA began its analysis saying that “ standard” m o s t
g e n e r a lly means “that which ‘is established by authority, custom, or general consent, as a model o r example; criterion; test.’” 541 U

. S. at 252–53 (quoting W E B S T E R ’ S S E C O N D N E W I N T E R N A T I O N A L D I C T I O N A R Y 2455 (1945)). The Court then explicitly narrowed t he me a n i n g o f “standard” in § 209(a)’s s tatutory context, highlighting t hat it refers to a mandatory, pollution-related obligation: The criteria refe r r e d to in § 209(a) r elate to the emission characteristics of a vehicle or engine. To meet them the vehicle or engine must not emit more than a c e r t a i n amount of a g iven pollutant, must be equipped with a certain t ype of pollution-control device, o r must have some other design f eature related to the c o ntrol 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 e ngines must co m p l y
. . . or emission-control technology with w hich t hey must be equipped”) (emphasis added) (internal citations omitted). 7 The Court in EMA , accordingly, found that directives by a California air pollution control bod y to certain municipal and private v ehicle fleets to purchase reduced-emission vehicles were an “ attempt to enforce” a “standard.” 541 U.S. at 255 (internal quotation marks o m i t t e d )

. It
was, the Court t wice e laborated, “[a] command, accompanied b y sanctions , that

7 As the O xf

ord Englis h D i c t i o nary d ef ines , “s tand ard , ” in its old es t s ens e, is “[ a]
m ilitary or naval ens ign, ” s uch as “the d is tinctive ens ign of a k ing, great noble, or com m and er, or of a nation or city. ” 2 O X F OR D E N GL I SH D I C T I O N A R Y 814 ( com p act ed

. 1979)

. “Stand ard , ” as in “s tand ard of m eas ure, ” ap p eared to d evelop f iguratively f

rom the w ord ’ s connotation of hierarchical, m artial unif orm ity: “the k ing’s s tand ard being the p oint of reunion of the arm y, and the centre f

rom w hich com m and s are is s ued

. ” Id. 8 Case: 12-10470 Document: 00512273521 Page: 8 Date Filed: 06/13/2013No. 12-10470

certain purchasers may buy o n l y v e hicles with particular emission characteristics.” Id. (emphasis added). 8 As ATO does not dispute, Ordinance 27831 is not phrased as a “command, accompanied b y sanctions,” EMA , 541 U.S. at 255, to adopt CNG technology. Nowhere does the Dallas law require cab drivers t o acquire or operate CNG cabs. By its terms, Ordinance 27831 demands n o m ore of traditional cabs than that, if th e y w i s h t o 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 t o transition to CNG technology, and we take instruction f

rom the Court in EMA ’s c l a rification that it was not r eaching whether an i ncentive to adopt pollution-control m easures would be a “standard” preempted b y § 2 0 9 (a). 541 U.S. a t 254–55, 258. In c onsidered discussion, Just i c e Scalia, writing for t he Court, noted such incentive programs “are significantly different from command-and-control regulation,” and that: Suffice it to say that nothing in t he present opini o n n e c e ssarily entails pre-emption of v oluntary programs. It is a t least arguable that the phrase ‘ adopt or a ttempt to enforce any s t a n dard’ refers only to standards t hat are enforceable—a pos s i b i l ity reinforced by the fact that the prohibition is imposed o nly on entities (States and political subdivisions) that have power to enforce.

8 The ruling in EM

A is cons is tent with our s is ter circuits ’ pre- EM A p reced ent that s tate law s requiring that s p ecif ic and cert a in p ercentages of auto s ales be of low

- em is s ion m otor vehicles are als o p reem p ted by § 209( a)

. See A ss’n of I nt’l A uto. Mf

rs. , Inc. v
. Com m ’r, M

a ss. D ep ’t of E nv tl

. Prot. , 208 F. 3d 1, 6–7 ( 1s t C ir. 2000) ; A m
. A uto. M frs. A ss’n v
. Ca hi l l , 152 F

. 3d 196, 200 (2d Cir. 1998)

. The N inth Circuit has s ubs equently ap p lied EM A to other p reem p tion p rovis ions , to up hold or bar s tate em is s ions regulations

. Com p a re Jensen Fa m il

y Fa rm s, Inc.
v
. M o nterey Ba

y Uni fi ed A i r Pol l uti on Control D ist. , 644 F. 3d 934, 938–40 ( 9th Cir. 2011) ( f ind ing Calif

ornia rules related to regis tration and fees f or dies el engines us ed in agriculture
w ere not p reem p ted by § 209( e) o f the Clean Air Act) , w i th Pa c. M erch. Shi

p p i ng A ss’n v
. G ol dstene , 517 F. 3d 1108, 1114 ( 9th Cir. 2008) ( hold ing Calif ornia p rohibitions on em is s ions f rom d ies el engines us ed by s hip s in Calif ornia coas tal w aters were a p reem pted “s tand ard ” und er § 209( e) of the Clean Air Act)

. 9 Case: 12-10470 Document: 00512273521 Page: 9 Date Filed: 06/13/2013No. 12-10470

Id. at 258. We agree with the dist r i c t court in concluding that there is no language in Ordinance 27831 creating a standard that is enforceable to convert cabs from g asoline to C NG power. See EMA , 541 U.S. at 258. It i s a compelling offer, n o t a compelled restraint. All Dallas may “ enforce” under the law is compliance with the head-of-the-line privilege and t he procedure for verify i n g dedicated CNG v ehicles. We conclude that Ordinance 27831, enacted using traditional police powers, is not “supers e d e d b y
. . . [any] clear and manifest
purpose of Congress,” above all w here 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 I ndirect Effects ATO additionally a r g u e s 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 o ne published district court decision, Metropolitan T axicab B oard of T

rade v. City o f N

ew York ( Metro. II

), 633 F. S upp. 2d 83, 103–05 (S.D.N.Y. 2009), aff’d on other grounds by 615 F.3d 152 (2d Cir. 2010), addres s e s w hether an incentive may be p r eempted by § 209(a) b ecause its application w o uld achieve, effectively, a mand a tory “standard.” In Metro. II

, New Y ork City adopted a measure to r a ise t he rate at which cab owners could lease hybrid vehicles to c ab drivers for a twelve-hour shift by three d ollars, but t o r educe the s ame rate owners could charge f o r non-hybrid and non-wheelchair-accessible cabs by as m uch as t welve d ollars. I d. at 85. 9 In

9 In a p rior cas e, M

etrop ol i ta n Ta xi ca b Boa rd of Tra de v. Ci t y of N ew York ( M

etro. I ) , N o. 08- cv- 7837( PAC) , 2008 WL 4866021 ( S. D

. N

. Y

. O ct. 31, 2008) , the s am e d is trict court p relim inarily enjoined an earlier N ew Y ork City law , w hich m and ated that al l new taxis m eet a m iles p er gallon m inim um
. The court f ound the plaintif

f s “d em ons trated a l i k e lihood of
s ucces s of s how ing” that the N ew Y ork City m eas ure w a s p r eem p ted by the fed eral Energy Policy and Cons ervation Act o f 1 9 7 5 ( “ E P CA”) , 49 U

. S. C. § 32919, w hich sets national f uel 10 Case: 12-10470 Document: 00512273521 Page: 10 Date Filed: 06/13/2013No. 12-10470

determining whether the scheme was p reempted u n der the E PCA and, alternatively, under § 209(a), the district court a sked whether the “new rules are

a mandate to taxicab owners to purchase only hybrid or clean-diesel vehicles,” and if so, “whether such a m andate is preempted b y federal law.” Metro. II , 633 F. Supp. 2d at 85. The court was careful to note that “a local law is not preempted when i t only indirectly regulates parties w it h i n a p r e e m p t e d field and
p resents regulated p arties w ith viable, non-preempted options.” Id. at 9 5

– 9 6

. In distilling those p rinciples, the Metro. II court relied on Supreme Court precedent interpreting the preemption provision in the Employee Retirement Income S ecurity Act of 1974 (“ER ISA”), which “supercede[s] any and all State laws insofar as they may now or h ereafter r elate to any employee benefit plan.” 29 U

. S

. C. § 1144(a); see Metro. II , 633 F. Supp. 2d a t 93–96; N.Y. State Conference of B lue Cross & Blue S hield 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. 6 45, the Supreme Court analyzed surcharges i mposed b y N e w York to encourage health insurance customers, including ERISA plans, t o choose Blue Cross & Blue S hie l d

. T h e 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 l aws that “mandated employee benefit structures or t heir administration,” or “provid[ed] alternative enforcement mechanisms.” Traveler s I n s
. , 5 14 U.S. at 658. It

econom y requirem ents

. M etro. I , 2008 WL 4866021, at *15. It w as in reaction to the M etro. I ruling that N ew Y ork City ad op ted the alternative ap p roach at is s ue in M etro. I I. M etro. II , 633 F. Sup p
. 2d at 85. N otably, the M etro. I court f

ound the plaintif

fs d id not mak e a lik ely
s how ing the law w as preem p ted by the Clean Air Act, becaus e the m iles p er gallon m inim um w as “s ilent as to em is s ions ” and w as not “a de fa cto regulation of em is s ions

. ” M etro. I , 2008 WL 4866021, at *14.
11 Case: 12-10470 Document: 00512273521 Page: 11 Date Filed: 06/13/2013No. 12-10470

further distinguished t he hypothetical “state law [ t h a t ] might p roduce such

a cute, albeit indirect, economic effects, by intent or otherwise, as to f orce a n ERISA plan to adopt a certain scheme of substantive coverage or e f f e c t i vely restrict its choice of insurers,” such t hat it would qualify for preemption. Id. at 6 6 8 ; s e e also Dillingham Constr. , 519 U.S. at 333 (“It cannot b e gainsaid t h a t [t h e C a lifornia law at issue] has the effect of encouraging apprenticeship programs—includ i n g ERISA plans—to meet the s tandards set out b y California, but i t has not been demonstrated here that t he added inducement created by the
wage b r e a k available on state public works projects is tantamount to a compulsion upon apprenticeship programs.”). The Metro. II d istrict court found the New Y ork C i ty measure was so coercive a s to indirectly m andate that cab o w n e rs purchase hybrids, “consti t u t [ i n g ] a n offer which can not, in practical effect, be refused.” 633 F. Supp. 2 d a t 9 9

. It concluded the plaintiffs established a likelihood of showing the lease rates imposed a p r e e m p ted s tandard under § 209(a), as they “effectively force F leet Owners to purchase hybrid taxicabs, and the purpose and effect o f the rules is to reduce emissions.” Id. a t 1 05. T he district court s imilarly found the plaintiffs established a likelihood of s uccess in p r o v i n g t he rule was preempted under the EPCA. I d

. at 103. It granted the plaintiffs’ m otion to prelim i n a r i l y enjoin the rule. Id. at 1 06. The Second Circuit affirmed, but without determining w hether the law was preempted by § 2 09(a). Metro. II , 615 F.3d at 158. ATO argues, echoing the Metro. II d i s t rict court, that t he economic hardship wrought on traditional cabs at Love Field by Ordinance 27831 is “an effective mandate” t o 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 i n business at Love Field: d rive a CNG taxicab.” The summary judgmen t evidence, particularly the taxi driver affidavits, d oes support the inference that

12 Case: 12-10470 Document: 00512273521 Page: 12 Date Filed: 06/13/2013No. 12-10470

Ordinance 27831’s head-of-the-line privilege has d e c reased b usiness for traditi o n a l c a bs servicing Love Field a nd increased the ranks o f CNG cab drivers. We m ay further i nfer that the law alters t h e “shopping decisions” for tradition a l c a b drivers in d etermining 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 s h o w t hat the law effectively compels a particular course of action. See RSR Corp. , 612 F.3d at 8 57. ATO does not point to evidence, for instance, that CNG c abs may displace traditional cabs servicing other p arts of the City, or that traditional c ab 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 m ost 200 operate regularly at Love Field. B y those num b e r s , even i f CNG cabs were to gain exclusive command of the Love Field route by virtue o f Ordinan c e 2 7 8 3 1 , they would comprise, at most, s even perce n t of the Dallas fleet. A s D allas further highlights, gasoline cab drivers enjoy some competitive advantages over CNG cab counterparts, s uch as t h e right t o c o llect a surcharge from customers when gasoline rises above $3.01 per gallon. That O r d i n a nce 27831 m ay have its intended effect and s ubstitute CNG cabs f or traditional cabs at Love Field does not show that Dallas c ab d r i v e r s face “such acute, a lbeit indirect, economic effects

. . . as to force” them to switch vehicles. S ee Travelers Ins. , 514 U.S. at 668; Metro. II

, 633 F. Supp. 2d at 105. 1 0

1 0 ATO als o relies on the Second C ircuit d ecis ion in M etro. II , arguing that this court need no t d e t e r m i n e that D allas ’s s chem e am ounts to an econom ic m and ate to f ind it is p reem p ted , s ince it “relates to” em is s ions control. The Second C ircuit in M etro. II cons trued the EPCA ’ s p reem p tion p rovis ion, w hich broad ly p reem p ts s tate “law [s ] or regulation[ s ] related to f

uel econom y s tand ard s , ” 49 U

. S. C. § 32919( a) ; see M etro. II , 6 15 F. 3d at 157–58, and not s tate “ sta nda rd[ s] r elating to the control of em is s ions , ” as in § 209( a) , 42 U

. S. C. § 7543( a) ( em p has is ad d ed )

. E ven if O rd inance 27831 “relat[ es ] to the control of em is s ions , ” § 7543( a) , that w ould not ans w er w hether it is a p reem p ted “s tand ard , ” as d ef ined in EM

A

. As d es cribed above, es p ecially inf orm ed by the Sup rem e Court’s cons id ered dis cus s ion in EM A , w e hold that in granting a head

- of

- the- line p rivilege to CN G cabs , O rd inance 27831 d oes not 13 Case: 12-10470 Document: 00512273521 Page: 13 Date Filed: 06/13/2013No. 12-10470

Reaching that conclusion does not require us to parse precisely when an incentive program mi g h t t urn sufficiently coercive to qualify as a de facto “standard.” That q uestion, factually and legally, r emains for future cases. The record h ere, which ATO had the opportunity to develop in d iscovery, simply does

n o t s u p p o r t ATO’s theory of preemption by acute economic coercion. We conclude that the indirect consequences of Ordinance 27831 do not r ender it preempted by § 209(a). CONCLUSION In light of the foregoing, we AFFIRM summary judgment in favor of Dallas.

by its term s im p os e a “s tand ard

. ”
14 Case: 12-10470 Document: 00512273521 Page: 14 Date Filed: 06/13/2013