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Ne w York Pet Wel fare Associa ti on, I nc. v. N ew York C it y

UNITED STATES COURTOF APPEAL S F O R T H E S E C O N D C IR C U IT August Term, 2016 (Argued: Se ptember 19, 2016 D ecided: March 2, 2017)

Docket No. 15-4013- cv

N E W Y O R K P E T W E L F A R E A S S O C I A T I O N , I N C ., Plaintiff-Appellant,

— v. — C I T Y O F N E W Y O R K, N E W Y O R K C I T Y C O U N C I L , C O R E Y J O H N S O N , indivi dually and in his capacityas New Yor k City Councilm an, E L I Z A B E T H S. C R O W L E Y , indivi duall y and in her capacity as New Yor k City Councilwom an, Defendants-Appellees, L I N D A B. R O S E N T H A L , indivi duall y and in her capacity as New Yor k State Assembly Member, Defendant

.B e f o r e :

L E V A L and L O H I E R, Circuit Judges , and K O R M A N , District Judge

. *

__________________ Appeal from an order of the United States District Court for the Eastern District of New York, Gleeson, J. , dismi ssing a complaint challenging New York City animal welfare laws on Commerce Clause and pree mpti on grounds. The complaint all eged tha t o ne law—requi ring City pet shops to purchase dogs and cats directly from feder all y li cense d bre ed e r s — v iolated the dormant Commerce Clause and was pree mpted b y the fed e r a l A n imal Welfare Act, an d that an other—mandating that pet shops sterilize dogs a n d c a ts befor e releasing them to consumers—was pree mpted by New York law. The district judge held that the challenged laws do not discriminate against or und u ly bu rd en inter state commerce, and do not conflict with either fede ral or New Yor k law. A F F I R M E D .

J E F F R E Y M. P O L L O C K, (Nancy Elizabeth Halpern, on the brief ), Fox Rothschild LLP, Law rence vil le, NJ (James M. Lemonedes , Fox Rothschild LLP, New York, NY, on the brief ), for PlaintiffAppellant

. B E N J A M I N W E L I K S O N , of Counse l (Zachary W. Carte r, Cor poration Counse l, Ri chard D earing, Assistant Cor poration Counse l, Devin Slack, of Couns el, on the brief ), City of New York, N ew York, NY, for Defendants-Appellees

. S. R E I D KA H N , Kane Kessler, P.C., N ew York, NY, for Amicus Curiae The Humane Society of the United States

.

Judge Edw ar d R. Kor man, of th e Un ite d State s Dist r ict Cour t for th e Easte r n Dist r ict of Ne w Yor k, * sitt in g by de sign atio n. 2E D W A R D R. K O R M A N , District Judge:

Home to more than a mil li on dogs and cats, New York City (collecti vely with 1 two indivi dual defendan ts, “the City”) has lo n g w o r k ed to addres s a tangle of problems surrounding the companio n a nimal business—including irrespo nsible bre eding of animal s destined for the City market, their subse quent sale to unwitting

consumers, and an overpop ulati on of unwanted animal s. Armed with a new grant of autho r it y f r o m th e Legislature, the City enacted a package of laws in 2015 that aimed to mitigate these issues by regulating the sal e of dogs and cats in pet shops. On the day they were to take effect, the New York Pe t Welfare Association (“NYPWA”) brought this suit to block two of these mandates. The first—the “Sourcing Law”—requires that pet shops sell only animal s acqui red from bre eder s holding a Class A li cense issued und er the feder al Animal Welfare Act (“AWA”), and the second—the “Spay/N euter Law”—requires th a t pet shops sterilize each animal befor e releasing it to a consumer. N Y PW A c laims that the Sourcing Law viol ates the “dormant” Commerce Clause and is pree mpted by the AWA, and that

See N EW Y O RK C IT Y E C O N O M IC D EV EL O PM EN T C O RPO RAT IO N, Ne w Yo r k City’s Pet Popu la ti on , 1 S T AT S B EE ’ S B LO G (Fe b. 1 4, 20 12) (e stim atin g a populati on of 1.1 mil lion cats an d dogs b ase d ona de mogr aph ic pr ofi le of A me r ica n pe t ow ne r sh ip) , archi ved at ht tps://pe r ma.c c/X2ZE- ZH ZQ. 3the Spay/N euter Law is pree mpted by New York law. The district judge dismi ssed 2 NYPWA’s entire complaint. N.Y. Pet Welfare Ass ’ n , In c . v. City of New York , 143 F. Supp. 3d 50 (E.D.N .Y.) (Gleeson, J.). NYPWA appeals, and we affirm. 3 BACKGROUND I. Feder al, State, and City Regul ation of Commerce in Animal s The commercial bre eding and sale of companion animal s i s subject to a web of overlapping feder al, state, and local regulation. The Animal Welfare Act, 7 U.S.C. § 2131 et seq. , is the only fe deral law addr esse d to the trade a n d tr e atment of dogs and cats intended for use as pets. The AWA applies broadly, covering any “dealer”—a “pers on who, in commerce, for compensation or profit, d e li vers for transpor tati on, or transpor ts, exce pt a s a carrier, buys, or sells, or negotiates the purchase or sale of

. . . any dog or other animal

. . . [for] use as a pet,” id. § 2132(f)—

NYPW A ha s aba nd one d its oth e r cla ims by fai lin g to r aise th e m he r e . See Lede rm an v. N. Y.C. De p’t 2 of Par ks and Recre at io n , 731 F.3d 199, 203 n. 1 (2d Cir

. 2013 ). Wh ile it doe s ar gue , in one se nt e nc e , th at th e Spay/Ne ute r Law r e gulate s e xtra te r r itor ial ly, we wi ll not con side r an unde ve lope d ar gume nt fi r st r aise d onappe al. See Harr is on v . Rep ubl ic of Suda n , 838 F.3d 86, 9 6 ( 2d Ci r . 201 6). The City pr e viousl y move d to dism iss for lac k of appe lla te jur isdi cti on, on th e gr ound th at 3 NYPW A ha d fi le d its not ice of a ppe al out of t ime . A moti ons pan e l de ni e d th e moti on. The City urge s us in a sin gle par agr aph to ove r r ule th e motion s pan e l an d dism iss th e appe al. H owe ve r , a me r its pan e l wi ll not or din ar ily r e vis it a r ulin g by a motion s pan e l abs e nt coge n t o r c o mpe lli ng r e ason s. See Lor a v. O’ He aney, 602 F.3d 106, 109 (2d Cir

. 2010 ). The motion s pan e l, wi th th e compl e te r e cor d be for e it an d full br ie fi ng on th e issue , foun d th at we ha ve jur isdi cti on, see id. , an d th e City’ s pe r fun ctor y asse r tion th at th e pan e l wa s wr ong doe s not pr ovide a r e ason e i th e r c o g e nt or compe lli ng to r e con side r its de cis ion

. 4but the s ta tu te itself does not deal in details. Rather, it sets up a gener al structure

and tells the Secre tary of Agricultu re to f il l in the blanks. The AWA requires most dealers to be feder all y li cense d, id. § 2133–34, but leaves it to the Secr etary to design the li censing scheme, see id. § 2133, and define specific standards of care that dealers must abide by, id. § 2143(a)(1). The Secr etary has created thre e li c e n sing categories of dealers: Class A bre eder s, Class B distributors, and exempt bre eder s. Clas s A b r e eder s include all dealers subject to li cen sure “whose business involving animal s consists only of animal s that are bre d and raised on the premises.” 9 C.F.R. § 1.1. Class B distributors include a l l d ea l er s subj ec t t o l i c en su re “ whose business includes the purchase and/or resale o f a ny animal,” including broke rs who “negotiate or arrange for” the purchase or sale of animal s, but do not ta k e p o s s ession or owners hip of them. Id. Exempt bre eder s do not need li cense s so long as they have four or fewer bre eding females, and sell only their offspring. 9 C.F.R. § 2.1(a)(3)(iii ), (vii). Des pite its bre adth, the AWA has always explicitly contemplated continuing state and local regulation of commerce in animal s. The Act authorizes the Secr etary “to cooperate with the official s of the various States or political subdivisions thereo f in effectuating the purpose s of this Act and of any State

. . . or munici pal legisl ation

5or ordinance on the same subject.” Pu b

. L

. No. 89-544 § 15(b), 80 Stat. 350, 352

(codified as amended at 7 U.S.C. § 2145(b)). Moreover , in 1985, C o n g r e s s directed that the feder al standards applicable to dealers under the AWA “shall not prohibit any State

. . . from promulgating standards in additi on to those

. . . promulgated by the Secr etary.” Pub. L. No. 99-198 § 1752(b)(3), 99 Stat. 1 3 5 4, 1647 (codified at 7 U.S.C. § 2143(a)(8) ). Indeed, ma n y s tates have specificall y regulated the sale of dogs and cats. Many of these laws are moti vated by concer n that large-scale comm e r cial bre eder s—often m a l i gn ed ( wh et h er f a i rly o r n ot) as “puppy mil ls”—prioriti ze profit

over h u mane treatment and resp onsible bre eding, and target them for special scrutiny. See, e.g. , N.Y. A G R I C . & M K T S . L A W § 4 0 5 (requiring yearly inspections of dealers who sell more than 25 animal s per year); see also A M E R I C A N S O C I E T Y F O R T H E P R E V E N T I O N O F C R U E L T Y T O A N I M A L S , S T A T E P U P P Y M I L L C H A R T (last updated June 16, 2015), archived athttps:// perma.cc/ HTK3-ZNQ4. In additi on to regulating large bre eder s directly, some jurisdictions have also opted to regulate the pet shops through which poorly bre d or il l-treated animal s are often sold. Some of these laws simpl y provide consumers additi onal protection by strengthe nin g w a rr anti es an d m andating disclosures about the animal

. See, e.g. , N.Y.

6G E N . B U S . L A W §§ 751–55. Over the last sever al years, however, many jurisdictions

have enacted laws that sharply li mit —or simpl y elim inate—pet shops’ abili ty to acqui re dogs and cats from commercial sources . Three states li mit pet shops’ sale of commercial ly bre d dogs to animal s obtained from fe d e r a l license es with clean

re c o r d s . And numerous local govern ments have gone farther, banning pet shops

4 from selling anyanimalnot acqui red fr om a shelter or humane s ociety. 5 Until r e c e n tl y , New York law blocked any efforts by the City to regulate its

own pet shops. Th e Pet Dealer Act, L. 2000, ch. 259, §§ 2, 4, 2000 N.Y. L A W S 2885, 2888, 2889 (codified at N.Y. A G R I C . & M K T S . L A W § 400-a (repe aled 2014); N.Y. G E N .

Con ne cti cut r e qui r e s pe t sh ops to sour ce onl y fr om USD A lic e ns e e s wi th out r e ce nt cit atio ns for 4 viol atin g th e AW A, see Ac t of Jun e 3, 2014 , P. A. No. 14- 77 § 4 , 2 0 1 4 C ONN . A C T S . 408, 411 (Re g. Se ss.) (c odif ie d at C O N N . G EN . S T AT . § 22- 354( b) ); Ne w Je r se y acc e pts sour cin g fr om e ith e r USD A lic e ns e e s wi th out r e ce nt cit atio ns for viol atin g th e AW A, or fr om an imal con tr ol fac ili tie s, r e scue or gan iza tion s, o r sh e lte r s, see Ac t of Fe b. 5, 2015 , P. L. 2015 , ch

. 7, § 3, 2015 N.J. L AW S 36, 43–4 4 ( c o d i fi e d at N.J. R EV . S T AT . § 56:8 -95 .1) ; an d Vir gin ia man date s sour cin g e ith e r fr om pe r s o n s wi th out r e ce nt cit atio ns for A WA vio lati ons , or from a human e soci e ty or anim al she lte r , see Ac t of M ar . 27, 201 5, 20 15 Va. A cts, ch . 679 (c odif ie d at V A . C O D E A N N . § 3 .2- 6511 .1)

. So far as we ar e aw ar e , Los An ge le s e na cte d th e fi r st loca l or din an ce r e gulati ng th e s o ur cin g 5 pr acti ce s of pe t shops in 2012 , barr in g all sale s of dogs or cats in pe t shops exc e pt those obta in e d fr om an imal sh e lte r s or huma ne soci e tie s. See L.A ., Cal. , Or din an ce 1823 09 (Se pt. 10, 2012 ) (c odif ie d as ame nd e d at L.A ., C AL ., M UN IC IPA L C O D E § 53.7 3). Am ong maj or cit ie s an d coun tie s, Ch ica go, see C HI ., I LL ., M UN IC IPA L C O D E § 4-3 84- 01 5 ( b ) , S a n Die go, see S AN D IE G O, C AL ., M UN IC IPA L C O D E § 42.0 706, an d Las V e gas, see L AS V EGAS, N EV ., M UN IC IPA L C O D E § 7.40 .315 (A ), ha ve e na cte d simi lar law s. Cook Count y, Ill in ois, see C O O K C TY ., I LL ., C O D E O F O RD IN AN C ES § 10- 13( a), all ows pe t sh ops to sour ce fr om Cl ass A br e e de r s in addi tion to sh e lte r s. For a l isti ng of l ocal or din an ce s ba nn in g or lim iti ng th e sale of dogs an d cats in pe t sh ops, se e B ES T F RIE N D S A N IMAL S O C IE TY , J URISD IC T IO N S W IT H R ETAIL P ET S AL E B AN S(l ast v isi te d Ja n. 4, 2 017) , archi ved at ht tps://pe r ma.c c/8DFA -P LWS. 7B U S . L A W § 753-e (repe aled 2014)), expr essly pree mpted “any local law

. . . regulating

or li censing pet dealers.” In 2014 the Legislature changed course, explicitly providing that nothing in the Pet Dealer Act should be construed to “li mit or restr ict any munici pality from enacting or enforc ing a local law

. . . governing pet dealers

. . . including a law .

. . governing the source ofanimal s sold or offer ed for s ale by pet dealers, and the spay or neuter of such animal s.“ Act of Jan. 10, 2 0 1 4 , L

. 2 0 1 3, ch. 553, 2013 N.Y. L A W S 1457 (codified as am ended at N.Y. A G R I C . & M K T S . L A W § 407; N.Y. G E N . B U S . L A W § 753-d). II. The Challenged Laws Shortly thereaf ter, the New York City Council began considering sever al new laws regulating pet shops. After mul tipl e hearings and extens ive testimony on the propose d regulations, the City e n a c ted, inter alia , the Sourcing Law, 2015 N.Y.C. Local Law No. 5 § 2 ( J a n . 17, 2015) (codified as amended at N.Y.C. Admin. Code § 17-1702), and the Spay/N euter Law, 2015 N.Y.C. Local Law No.7 § 3 (Jan. 17, 2015) (codified as amended at N.Y.C. Admin. Code § 17-804(b )). The Sourcing Law provides that City pet shops may obtain dogs or cats only directly fr om fe derally-li cense d Class A br eeder s (who sell only anim als bred and raised on their own premises). N.Y.C Admin. Code § 17-1702(a)(1). Moreove r, pet

8shops may buy only from breede rs whose feder al license has not been suspende d

within the last five years, id. , have not been rece ntly cited for viol ating the AWA by the U.S. Depar tment of Agriculture, see id. § 17-1702(a) ( 2 ) , a n d provide a sworn affidavit that they have never been convicted of viol ating certain animal protection laws, id. § 17-1 7 0 2 ( a )(3)–(4). Pet shops are also expr essly forbidden from selling animal s knowingly obtained from Class B distributors (who purchase and r e s ell animal s), id. § 17-1702(b), and forbidden by impl icati o n f rom selling animal s obtained from exempt bre eder s (who cannot obtain a Class A li cense because they h a ve fewer than five bre eding females). Notably, the same sourcing rules do not apply to anim al shelters or an imalresc ue organizations. The Spay/N euter Law prohibits pet shops from releasing any dog or cat to a

consumer unless it has been sterilized by a veterinarian. Id. § 17-804(b )

. The Law specificall y defines “sterilization” as such an operation perfor med on a “dog or cat that is at least e ight weeks of age and that weighs at least two pounds.” Id. § 17- 802(i). Anim al shelters are also generally required t o sterilize dogs and cats befor e releasing them, id. § 17-804(a), but their obligati on to do so is subject to a number of

exce ptions not appli cable to pet shops, see id. § 17-804(a)(1)–(4).

9DISCUSSION

Review of a dismi ssal under Fed. R. Civ. P. 12(b)(6) i s de novo. We consider th e facts all eged in the complaint, documents attached to it or incorporated by refe rence , and matters subject to judici al notice, Parkcentral Glob. Hub Ltd. v. Porsche Auto. Holdings SE , 763 F.3d 198, 202 (2d Cir. 20 1 4 ) (per curiam). We accept wellpleaded allegati ons and dr aw allreaso nable infere nces in the plaintiff’s favor. Id. I. Feder al Preemption A. Obstacle Preemption NYPWA argues that the district judge err ed in holding that the Sourcing Law is not pree mpted by the AWA. There are sever al well-establi shed categories of pree mpti on, see generally Arizona v. United States, 132 S. Ct. 2492, 2500–01 (2012), but NYPWA all eges only that one—obs tacle pree mpti on—applies here

. Feder al law pree mpts conflicting state laws, and the Supre me Court has long recognized that a conflict exists when a state law “stands as an obstacle to the accompli shment

. . . of th e full purpose s and objectives of” feder al law. Id. at 2501 (quoting Hines v. Davidowitz , 312 U.S. 52, 67 (1941)). NYPWA argues that the Sourcing Law obstructs the Animal Welfare Act by in te r fering with its system of li censing for animal dealers. We disagree.

10Preemption analysis rests on two fundamental principles. Wyeth v. Levine, 555

U.S. 555, 565 (2009). First, ever y pree mpti on case starts with the pres umpti on that Congr ess did not intend to displace state law. Id. Because this pres umpti on rests on our “respect for the States as independen t sovere igns in our federal system,” id. at 565 n.3 (internal qu o ta ti o n marks omit ted), it is espe cially strong in areas where states traditi onally wield police powers , In re MTBE Prods. Liab. Litig. , 725 F.3d 65, 96 (2d Cir. 2013); see also Hillman v. Maretta , 133 S. Ct. 1943, 1950 (2013). The h eavy burden of overcoming this pres umpti on f a ll s on the party all eging pree mpti on, E n t e rgy Nuclear Vt. Yankee, LLC v. Shumlin , 733 F.3d 393, 414 n.21 (2d Cir. 2 0 1 3 ) (citing Silkwood v. Kerr-McGee Corp. , 464 U.S. 238, 255 (1984)), who must show that th e conflict between the feder al and state laws “is so direct and positiv e th a t th e two . . . cannot be reconc il ed or consistently stand together,” In re MTBE , 725 F.3d at 102 (quoting M a d e i ra v. Affordable Hous. Found., Inc. , 469 F.3d 219, 241 (2d Cir. 2006)). Second, since pree mpti on is ultimat ely a questi on of statutory construction, it is always a matter of intent, “even where that intent must be inferre d.” In re Tribune Co. Fraudulent Conveyance Litig. , 818 F. 3 d 9 8 , 1 1 0 (2d Cir. 2016), petition for cert. pending

, No. 16-317 (filed Sept. 9, 2016). We lo o k to the intent of Congr ess to 11determine the pr eemptive force of a statute, id. , but in evaluating pree mpti on by a

regulation, we focus on the agency’s intent, City of New York v. F.C.C. , 486 U

. S

. 57, 6 4 (1988). Divining Congr ess’s intent is always “a matter of judgment, to b e informed by examining the feder al [scheme] as a whole and identifying its purpose and intended effects.” Crosby v. Nat’l Foreign Trade Council , 530 U.S. 363, 373 (2000). We apply the same “ordinary pre-e mpti on principles”whether the relevant feder al law i s a statute or a re gulati on. See Geier v. Am. Honda Motor Co., Inc. , 529 U.S. 861, 874 (2000). We turn to that inqu iry now. B. The Animal Welfare Act Does Not Preempt the Sourcing Law Because obstacle analysis hinges on the purpose s of the feder al scheme, “we must first ascer tain those objecti ves as they relate t o the federal law[s] at issue.” In

re MTBE , 725 F.3d at 102

. NYPWA’s feder al pree mpti on claim is very specific, arguing only that the Sourcing Law obstructs the system of dea le r license s authorized by the AWA and impl emented by the Secr etary o f A g r iculture. The thresh old task, then, is to determine the purpose of that licensure scheme as it relates to the broade r objectives of the AWA an d its i mplementing regulations. Never theless, d e s p ite NYPWA’s narro w focus, neither party squarely addres ses the issue. The City argues wr ongly that the AWA does not pree mpt the

12Sourc in g L a w b e cause they share the goal of promoting the humane treatment of

animal s. Broad harmony of purpose wil l not save a state law from pree mpti on if it “interfere s with the methods by which the feder al statute was designed to reach [its] goal.” Int’l Paper Co. v. Oullette, 479 U.S. 481, 494 (1987). NYPWA misses the p o int

as well w hen it focuses too narro wly on the fact that the Sourcing Law blocks particular pet dealers from acting in w a y s th a t feder al law standing alone would all ow. It explains how those strictures inte r f e re with the business models of individual licensees , but not how they interfere with the role of the li censing system in advancing the statute’s overall goals. The question is whether the Sour c in g Law blocks the lic e nsure system from fulfi ll ing the specific role that Congr ess and the Secr etary of Agriculture intend it t o play in advanci ng the goals of the AWA. Neither Congr ess nor the Secr etary has explained the purpose of li censur e in the overall AWA scheme. Never theless, a careful analysis of the AWA’s provisions suggests that li censur e is best unders tood a s a system of compulsory registration designed to require deal ers to provide informati on that would facili tate the Act’s objective of creating a nationwide system of anim al welfare inspections. Inspections are central to the AWA: the statute directs the Secretary to carry out inspections to determine whether dealers are viol ating the Act, 7 U.S.C.

13§ 2146(a), and requ ir es that feder al inspectors have access to dealers’ premises,

animal s, and recor ds, id. The regulations impl ementing that provision give feder al official s broad lati tude to inspect and document all aspects of a de a le r ’ s b u s iness without giving prior notice. See 9 C.F.R. § 2.126. Indeed, th e p o r tion of the statute captioned “Admi nistration and e nforce ment” deals exclusively wi th empowering the Secr etary to inspect and otherwise investigate regulate d p arties. See 7 U.S.C. § 2146. Put simply, the Secr etary’s nationwide authority to p roact iv e ly inspect for viol ations is the AWA’s primary enforc ement mechanism. See U.S. D E P A R T M E N T O F A G R I C U L T U R E , A N I M A L W E L F A R E A C T E N F O R C E M E N T (last modifi e d Oct. 3, 2016), archived athttps:// perma.cc/YRK4-7ENE. Of course, to make a nationwide inspection program effective, the Secr etary has to know what to inspect. At a mini mum, he has to know who the dealers are and where to find them. But that pres ents a problem—how is the Secr etary supposed to get that informati on? To be sure, Congr ess could have directed him to simpl y start looki ng for dealers on his own. But even in 1966 the AWA swept broadly, covering “li ve dogs, cats, monkeys

. . . , guinea pigs, hamsters, and rabb its,” see Pub. L. 89-544 § 2(h), 80 Stat. 350, 351 (1966), and the job of finding ever y dog and cat dealer in the United States (to say nothing of its hamsters) would have been enough to make the

14Secr etary, in his few, fleeting, hopeful moments, wish longingl y to trade places with

Sisyphus. The AWA aims to s o lv e th is problem through a system of compulsory li censur e. In requiring dealers to obtain feder al li cense s, the Act and the Secr etary’s regulations require regulated parties to make themselves known to regulators, and to turn over the infor mati on that is pertinent to enforcing the Act. We also note that this view of licensure as facilit ating inspection finds some

me a s u r e of support in the Depar tment of Agriculture’s approach to the AWA. Cf. Wyeth v. Levine, 5 5 5 U

. S

. 555, 576–77 (2009) (noting that courts may consider “an agency’s expla n a ti o n of how state law affe cts” feder al r egulati on). Its r egulati ons, for example, gener all y do not pres cribe the informati on required to obtain a li cense , except to expr essly re qu ir e that applicants provide a mail ing addres s and “a vali d premises addres s where animal s, animal facili ties, equipm ent, and recor ds may be inspected for compli ance.” 9 C.F.R. § 2.1(a)(1). The Secr etary’s decision to require a satisfactory inspection as a p r e c o n d it ion to the issuance of a li cense also suggests that the agency intends li censur e to further the AWA’s e n f o r c ement mechanisms. See 9 C.F.R. § 2.3(b). Moreover , in a rece nt statement of basis and purpose , the Secr etary justifi ed his decision to e xempt certain smallbre eder s from li censing on the grounds that, as “low-risk” facili ties, they did not need “Feder al oversight.” 78

15Fed. Reg. 57227, 57240 (2013). Since inspection constitutes the bulk of oversight, the

agency’s decision to f orego li censing where o v e r s ig h t is unneces sary is co nsistent with our view that li censur e is an admini strative mechanism meant to facili tate the inspection regime that gi ves the AWA tee th. The second step in o u r analysis is ascer taining whether the Sourcing Law stands as an obstacle to that purpose . It clearly does not. Bree ders and distributors’ abili ty to sell to City pet shops has no bear ing on the li censing s c h e me ’ s abili ty to facili tate feder al enforc ement activi ties. Distributors wil l stil l have to g e t li cense s, wil l stil l have to provide informati on to feder al official s, and wil l stil l have to open their facili ties to feder al inspection. An d of course, exempt bre eder s wil l stil l be excluded from the licensing system as a matter of feder al l aw. C. NYPWA’s Preemption Arguments Are Meritless NYPWA’s arguments appe a r to rest on a very different view of li censur e’s role that is never clearly articulated, but tha t we never theless consider and reject. NYPWA argues that the AWA’s regulations grant animal dealers a feder al right to engage i n any line of business they wish without state interfere nce. NYPWA finds these r ig hts in both feder al action—l icensing certain animal dealers—and feder al inacti on—deter mining that other animal dealers do not need l i c en se s. Th e u n sp o k en

16but inescapable impl icati on of NYPWA’s position is that the Secr etary’s intent was

simpl y to preempt the field of trade in animal s. Where Congr ess le g is lates in an area that is within the states’ traditi onal police powers , intent to pree mpt the field wil l ordinarily not be inferre d unless such intent is “clear and manifest.” English v. Gen. Elec. Co. , 496 U.S. 72, 79 (1990) (internal quotation marks omit ted). This is just such a field, see, e.g. , Reid v. Colorado , 187 U.S. 137, 148 ( 1 9 0 2 ) ( u p h olding a state statute regulating trade in cattle and horse s sourced from certain a r e a s a s a vali d exer cise of police powers ), and we do not detect the requisit e intent in the li censur e system. The me r e c r e a ti on of a feder al li censing scheme does not indicate t hat Congr ess wanted to displace state law. See Fla. Lime & Avocado Growers, Inc. v. Paul , 373 U.S. 132, 141–42 (1963). Signifi cantly, the text of the AWA unambiguousl y envisions continuing state animal welfare regulation. C ongres s has expr essly authorized the Secr etary, in imple menting the Act, to “cooperate with” local official s “in carrying out the pu r p o s e s o f

. . . [the AWA] and of any State, local, or munici pal legisl ation or ordinance on the same subject.” 7 U.S.C. § 2145(b). The Secr etary may pree mpt only to the extent that Congr ess has delegated him the power to do so. Fid. Fed. Sav. and Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153–54 (1982). Section 2145(b)’s explicit grant

17of authority to the Secretary to cooperate with state official s carrying out state law

makes it clear that Co n g r e s s d id not intend that the statute displace all state regulation of the field. II. Commerce C lause A. Overview Th e Co m m er c e Cl a u se empowers Congr ess “to regulate Commerce

. . . a m o n g the sever al States,” U.S. C O N S T . Art. I, § 8, cl. 3 , b u t a lso has a corre sponding “negative” or “dormant” aspect that “li mit s the power of local governments to enact laws affecting interstate com merce.” Town of Southold v. Town of East Hampton , 477 F.3d 38, 47 (2 d C ir

. 2007). Analysis of state and local laws under the dormant Commerce Clause treads a w e ll -worn path. First, we determine whether the challenged law “discriminates against interstate commerce,” or “regulates evenhan dedly with only incidentaleffects on inter state commerce.” Id. In this context, discrimination “means differential treatment of in

- s tate and out-of-state economic interests that bene fits the former and burden s the latt er.” Or. Waste Sys., Inc. v. Dep’t of Envtl. Quality, 511 U.S. 93, 99 (1994); see also Automa ted Salvage Transp., Inc. v. Wheelabrator Envtl. Sys

. , Inc. , 155 F.3d 59, 74 (2d Cir. 1998). Discriminatory laws are permissible only if the state shows they are “demonstrably

18justifi ed by a vali d fac to r unrelated to economic protectionism.” Wyoming v.

Oklahoma , 502 U.S. 437, 454 (1992). This justificati on must sh ow “a legitimat e local purpose that cannot be ade qu a te ly serve d by reaso nable nondiscriminatory alternatives.” Dep’t of Revenue of Ky. v. Davis , 553 U.S. 328, 338 (2008) (quoting Oregon Waste, 511 U.S. at 101). Laws that impose only incidental burden s on interstate commerce, however ,

are subject to a much more f o r g iv in g standard. Under the balancing tes t of Pike v. Bruce Church, Inc. , 397 U.S. 137, 142 (1970), we wil l uphold a nondiscriminatory law unless the challenger shows that “the burden imposed on [interstate] comm erce is clearly excess ive in relati on to the putative l ocal benefits.” B. The Sourcing Law Does Not Discriminate Against Interstate Commerce The Supre me Court has recogniz e d th r e e modes of discrimination against in te r state commerce: a law may discriminate on its face, harbor a discriminato r y purpose , or discriminate in its effect. Town of S o u t hold, 477 F.3d at 48. On appeal, NYPWA raises thre e differen t theories of discriminatory effect. First, NYPWA contends that the Sourcing Law discriminates against out-ofstate bre eder s, because “many” (not all ), see Second Amended Complaint at ¶ 147, of them cannot afford th e e x p e n se of reaching the New York City marketplace

19exce pt by selling to Class B distributors, who rese ll animal s to pet shops but are now

prohibited from engagin g in su ch c o m merce within the City. The Commerce Clause, h o w ev er , “ p ro t ec t s the interstate market, not particular intersta te fi rm s. ” E xx o n Co r p .

v. Maryland, 437 U.S. 11 7, 1 2 7 (1978). The Sourcing Law may make it difficu lt or impossible for some out-of-state bre eder s to sell to City pet shops , b u t s o long as others are able to, “interstate commerce is not subjected to an impermi ssible burden simpl y because a[]

. . . regulation causes some business to shift from one interstate supplier to another.” Id. Based on NYPWA’s complaint, we have ever y r e a s o n to believe that some out-of-state bre eder s wil l se ll directly to City p et shops. After all, NYPWA all eges that pet shops depend on puppy sales for a signifi cant portion of their rev e n u e s , Second Amended Complaint at ¶ 41, and that the vast majority of Class A bre eder s

are located outside New York, id. ¶ 44. With or without the Sourcing Law, City pet shops wil l need to im p o r t puppies into New York, and the interstate market wil l have ever y incentive to meet demand. Th e Sourcing Law is not invali d merely because it favors out-of-state bre eder s who are able to make direct sales over those who are n ot.

20NYPWA’s secon d theory of discriminatory e ffect is that by shifting the C ity

pet market away from pet sh o p s — w h ic h buy most of their animal s from dealers outside New York—and toward s animal shelters and resc ues (“res cue entiti es”), the Sourcing Law disadvantages out-of-state pet dealers in favor of local resc ue entiti es for access to the City pet market. The City, in turn, contends that commercial dealers and resc ue entiti es are so dissimi larly situated as to be in comparable. See Gen. Motors Corp. v. Tracy, 5 1 9 U.S. 278, 299 (1997). We need not reso lve the City’s argument, because even assuming that the two are simi larly situated, NYPWA stil l fails to show discrimination against interstate commerce. The complaint all eges that resc ue entiti es are vigorous participants in the interstate market fo r c o mp a n ion animal s. Rescue entiti es “obtain do gs and cats from across the country,” Second A me nded Complaint at

¶ 162, which they sell “throughout the City,” id. ¶ 164. To the extent the Sou r cing Law makes it easier for resc ue entiti es, and harder for bre eder s, to compete in the City, it merely shi f ts b u s ine ss from one interstate actor to an other. F in a l ly, NY P WA argues that the Sourcing La w d i sc rim in a tes a g a in st inter st a te

commerce because the vast majority of Class B distributors (who buy from bre eder s for resale to pet shops, and are barr ed by the Sourcing Law from selling to City pet shops) are located ou ts id e N e w York. The Supre me Court has considere d and

21reje cted the argument that a “statute is discriminatory because it wil l apply most

often to o ut-of-state entiti es” in a market that has more out-of-state than in-state participants, CTS Corp. v. Dynamics Corp. Of Am. , 481 U.S. 69, 88 (1987), and there is

no nee d to say any more her e. C. The Sourcing Law Survives Pike Balancing Because the Sourcing Law does not discriminate against interstate commerce, under the Pike balancing tes t, we wil l uphold it u n less NYPWA can show that the incidental burden it imposes on such commerce is clearly exce ssive in relation to the local bene fits. 397 U.S. at 142. An incidental burden is one that weighs more heavily

on interstate commerce than intras ta te c o mmer ce. Town of Southold, 477 F.3d at 50 (quoting Nat’l Elec. Mfrs. Ass’n v. Sorrell , 272 F.3d 104, 109 (2d Cir. 2001)). We have recognized three types of “incidental ” burden s: r e g u lati ons that have a disparate impact on in- v e r s us out-of-state entiti es, laws that regulate beyond the state’s borde rs, and laws that create regulatory inconsistencies between states. Id. (quoting United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth. , 438 F.3d 150, 156–57, aff’d550 U.S. 330 (2007)). First, NYPWA fails sufficientl y to all ege that the burden of selling directly to City pet shops, rather than through distributors, wil l fall disproportionately on out22of-state bre eder s. Even drawing the extre mely favorable inference that the burden

of direct sales wil l corre late directly with the seller’s distance from the City, NYPWA stil l has not pled a disparate impact

. The cost of doing business in many markets is h ig her for faraway sellers than for nearb y ones, and the Sourcing Law do e s n o t viol ate the Commerce Cla u se merely because of that fact. Where the cost of compli ance with the Sourcing Law would be the same in Pittsburgh as in Buffalo, the Law cannot be said to im pose a sp ecial burden on interstatecommerce. Second, NYPWA does not demonstrate th at the Sourcing Law “directly controls commerce occurring wholly outside” of New York. See Healy v. Beer Inst., Inc. , 491 U.S. 324, 336 (1989). It argues that the Sourcing Law wil l have such an effect when out-of-state exempt bre eder s increase the scale of their operations in order to qual ify for Class A li cense s, which are o n ly a v a il able to bre eder s with more than four bre eding females. The Commerce Clause, however , does not void eve r y la w that causes behavior to change in other states. Rather, the measure of extrater ritoriali ty is whether the Sourcing Law “inescapably require[s]” bre eder s to operate on the City’s terms even when d o in g bu siness elsewher e. See Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 110 (2d Cir. 2001). That standard is not met here , where

23the Sourcing Law attaches no signifi cance to bre eder s’ conduct with r espe ct to

animal s sold outside the City. Finally, NYPWA has p le d no facts indicating that the Sourcing Law is “in substantial confli ct with a common regulatory scheme in place in other states.” Id. at 112. The complaint contains no all egations at all that the Sourcing Law wil l create an interstate re gulatory confli ct. Even if we were to consider al legati ons raised for the first ti m e o n a p p ea l, NY PW A ’ s o p enin g brief simpl y concludes, without support, that the Sourcing Law conflicts with the laws of other states. See Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). NYPWA does cite some examples in its reply brief, but they do not conflict either with the Sourcing Law or with each other—a bre e d e r may simul taneously hold a Class A li cense and posses s only five bre eding females , each 6 of which produces only o n e li tter per year. We need not explore hypothetical 7 conflicts of our own design, since “[i]t is not enough to point to a risk of conflict[]

. . . ; there must be an actual conflict between the challenged regulation and those [already] in place.” Sorrell , 272 F.3d at 112.

See C OOK C TY . , I LL ., C O D E O F O RD IN AN C ES § 10- 13( a)( ii) (b ar r in g pe t sh ops fr om se lli ng dogs 6 obta in e d fr om a br e e de r unl e ss th e br e e de r “ow ns or posse sse s no mor e th an fi ve fe male dogs [or ] cats . . . capa ble of r e pr oducti on” ). See S UN RISE, F L ., C OD E O F O RD IN AN C ES § 4-7

. 7 24Moreo v e r , th e City h as identifi ed a number of local ben efits that ar e clearly

unrelated to economic pr o tectionism

. See Wyoming v. Oklahoma, 502 U.S. 437, 454 ( 1 9 9 2 )

. Requi ring pet shops to purchase directly from Class A bre eder s protects

consumers by maki ng it impossible to obscure the sour c e of an animal by using a mi d d le man, enhance s animal welfare by reducing the incidence of disease an d behavioral problems associated w ith ir resp onsible bre eding, and all eviates the burden of providing care in public shelters for animal s abandone d because of such problems. Never th e le ss, because we hold the Sourcing Law to be nondiscriminatory, there is no reaso n to reach the question of whether these non-prote ctioni st justifi cations would be sufficient to overcome a pres umpti on of per se invali dity, see Dep’t of Revenue of Ky. v. Davis , 553 U.S. 328, 338 (2008), and because NYPWA has not demonstrated any incidental b urden on interstate commerce, there is no need to consider the weight these local bene fits should carry in th e Pike balancing test. Because the Sourcing Law imposes no incidental burden s on interstate com merce, it cannot impose any that are clearly exce ssive in relation to it s lo cal bene fits, and theref ore survi v es scrutiny under the dormant Commerce Clause. USA Recycling, Inc. v. Town of Babylon , 66 F.3d 1272, 1288 (2d Cir. 1995).

25III

. State Preemption

A. Municipal Powers and Preemption in New York New York law grants broad powers to local governments to make their own laws “to the extent that they are not inconsistent with either the State Constitution

or any gener al law.” Eric M. Berman, P.C. v . C i ty of New York , 25 N.Y.3d 684, 690 (2015). Th is in cludes a gener al police power to adopt local laws relating to “the government, protection, order , conduct, safety, health and well-being of pers ons or proper ty.” N.Y. C O N S T . art. IX, § 2(c)(10)

. The powers of local g overnment are construed liberally in New York, id. § 3(c), but may nevertheless be pr eempted by the state legisl ature. The New York Court of Appeals has explained that a local law is pree mpted “where there is a direct conflict with a s ta te statute (conflict pree mpti on)” or where the local la w is inconsistent with state law because it “prohibit[s] what would be permissible under State law, or i mpose[s] prerequisite additi onal restr icti ons on rights under State law, so as to inhibit the operation of the State’s gener al laws.” Berman , 25 N.Y.3d. at 690 (internal quotation marks omit ted). B. The Spay/Neuter Law is Not Preempted Under New York Law The Spay/N euter Law is not pree mp te d by New York’s laws governing veterinary medicine, or by its animal crueltylaws. NYPWA argues that steril izi ng 26a dog or cat at the mini mum age and weight all owed by the Law—8 weeks old, and

two pounds—while the animal is stil l in the custody of the pet shop, would viol ate

a veterinarian’s purported duties under Ne w Y ork law to (1) apply independen t profes sional judgment, and (2) obtain the informed consen t of the owner, befor e perfor ming a surgical procedur e. We descr ibe these duties as “purported ” because NYPWA has failed to identify a single New York statute or case that imposes them. Never theless, there is no need to probe the depths of veterinarians’ profes sional o b li g a tions, because even assuming that NYPWA is right, they stil l have not stated a pree mpti on claim

. As the district judge noted, the Law imposes no obligati ons on veterinarians. If a veterinarian feels that perfor ming a surger y would viol ate her o bligations under any N ew York law, she may simply refuse. Nor is the Spay/N euter Law pree mpted by § 753-d of New York’s Gene r al Business Law, which expr essly prohibits any local law that “result[s] in esse ntial ly banning all sales of dogs or cats raised and maint aine d in a h ealthy and safe manner.” In suppor t o f its claim, NYPWA’s briefing spins out the following doomsday scenar io: Pet shops only h ave a market for dogs and cats younge r than twelve weeks. But sterilizing an animal that young is (allegedly) a serious viol ation of veterinary ethics. So no veterinarian wil l sterilize the puppies and kitt ens, which

27pet shops wil l then be forbidden to sell. As a result, the sale of puppies and kitt ens

in the City wil l effectively be banned

. NYPWA argues that beca u s e th e r e is no market for dogs and cats other than puppies and kitt ens under twelve weeks of age, a ban on the s ale of such animal s effec tivelybans all sales of dogs and cats. No New York court has spoken on th e p r e e mp tive scope of § 753-d. Never theless, NYPWA fails to state a claim for preemption even on its own terms. The complai nt does not allege that there is no market for tw elve-week-old ani mals, only that consumers prefer younger ones. Put differe ntly, NYPWA does not all ege that no market would exist for twelve-week-old animal s, because it does not all ege that consumers would refuse to buy any animal s at all if those aged twelve weeks and up were the only ones available. CONCLUSION The Sourcing and Spay/N euter Laws a ddres s problems of signifi cant importance to the City and its residents. It appears that the City has enforc ed them for more than a year, wi th no apparent il l effects. Because the challenged laws are 8

In th e dist r ict cour t, th e City agr e e d not to e nf or ce th e ch all e ng e d law s th r ough Octob e r 31, 2015

. 8 Tha t date ha s lon g passe d, an d ne ith e r par ty ha s advi se d us th at th e City is not e nf or cin g th e law s. 28not pree mpted by eithe r s ta te or feder al law, and do not offend the Commerce

Clause, we Affirm the district court’s order dismi ssing NYPWA’s complaint

.

29