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09-2901-cv Metropolitan Taxicab Board of Trade v. City of New York 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term 2009 5 (Argued:January 22, 2010 Decided: July 27, 2010) 6 Docket No. 09-2901-cv 7 -----------------------------------------------------x 8METROPOLITAN TAXICAB BOARD OF TRADE; MIDTOWN CAR LEASING 9 CORP.; BATH CAB CORP.; RONART LEASING CORP.; GEID CAB 10 CORP.; LINDEN MAINTENANCE CORP.; and ANN TAXI, INC., 11 12 Plaintiffs-Appellees, 13 14 MIDTOWN OPERATING CORP., SWEET IRENE TRANSPORTATION CO. 15 INC., OSSMAN ALI, and KEVIN HEALY, 16 17 Plaintiffs, 18 19 -- v. -- 20 21 CITY OF NEW YORK; MICHAEL R. BLOOMBERG, in his offical 22 capacity as Mayor of the City of New York; THE NEW YORK 23 CITY TAXICAB & LIMOUSINE COMMISSION; MATTHEW W. DAUS, in 24 his official capacity as Commissioner, Chair, and Chief 25 Executive Officer of the TLC; PETER SCHENKMAN, in his 26 official capacity as Assistant Commissioner of the TLC 27 for Safety & Emissions; ANDREW SALKIN, in his official 28 capacity as First Deputy Commissioner of TLC, 29 30Defendants-Appellants. 31 -----------------------------------------------------x 32 33 B e f o r e :WALKER, STRAUB, and LIVINGSTON, Circuit 34 Judges. 35 The City of New York, the New York City Taxicab & Limousine 36 Commission, and City officials appeal the grant of a preliminary 37 injunction by the United States District Court for the Southern 38 District of New York (Paul A. Crotty, Judge), that enjoined the 39 enforcement of the City’s recently amended lease rates for-2- 1 taxicabs on the basis that the new rules are likely preempted 2 under the Energy Policy and Conservation Act (“EPCA”), 49 U.S.C. 3 § 32919(a), and the Clean Air Act (“CAA”), 42 U.S.C. § 7543(a). 4 We conclude that the preliminary injunction was appropriate and 5 therefore AFFIRM. 6 ELIZABETH S. SAYLOR, 7 (Richard D. Emery and 8 Matthew D. Brinckerhoff, 9 on the brief), Emery 10 Celli Brinckerhoff & 11 Abady LLP, New York, NY, 12 for Plaintiffs-Appellees. 13 14 SUSAN PAULSON (Francis F. 15 Caputo, Michael A. 16 Cardozo, Ramin Pejan, and 17 Adam Stolorow, on the 18 brief), Corporation 19 Counsel of the City of 20 New York, for Defendants21 Appellants. 22 23 MARK B. STERN, Attorney, 24 Appellate Staff, Civil 25 Division, Department of 26 Justice, Washington, D.C. 27 (Robert S. Rivkin, 28 General Counsel, 29 Department of 30 Transportation; Scott 31 Fulton, General Counsel, 32 Environmental Protection 33 Agency; Tony West and 34 Ignacia S. Moreno, 35 Assistant Attorneys 36 General; Preet Bharara, 37 United States Attorney 38 for the Southern District 39 of New York; Jean-David 40 Barnea, Assistant United 41 States Attorney; R. 42 Justin Smith and Peter 43 McVeigh, Attorneys,-3- 1 Environment and Natural 2 Resources Division; H. 3 Thomas Byron, III, 4 Attorney, Appellate 5 Staff, Civil Division, 6 Department of Justice, on 7 the brief), for the 8 United States as Amicus 9 Curiae. 10 11 JOHN M. WALKER, JR., Circuit Judge: 12 13 The Taxicab & Limousine Commission of New York City (“TLC”) 14 and several New York City officials (collectively, “the City”) 15 appeal the grant of a preliminary injunction by the United States 16 District Court for the Southern District of New York (Paul A. 17 Crotty, Judge), that enjoined the enforcement of the City’s 18 revisions to the maximum lease rates for taxicabs that 19 effectively shifted fuel costs from drivers of fleet taxis to 20 fleet owners to incentivize the use of hybrid-engine and fuel21 efficient vehicles. The district court held that the new rules 22 likely related to fuel economy standards and new vehicle 23 emissions and were thus preempted under the Energy Policy and 24 Conservation Act (“EPCA”), 49 U.S.C. § 32919(a), and the Clean 25Air Act (“CAA”), 42 U.S.C. § 7543(a). Metro. Taxicab Bd. of 26 Trade v. City of N.Y., 633 F. Supp. 2d 83, 105-06 (S.D.N.Y. 27 2009). 28 BACKGROUND 29 In December 2007, the City issued rules requiring that new 30 taxicabs that were put into service on or after October 1, 2008The EPCA states, in relevant part: “[A] State or a 1 political subdivision of a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard under this chapter.” 49 U.S.C. § 32919(a). The CAA states, in relevant part: “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.” 42 U.S.C. § 7543(a). The district court, having “limited its review to the 2 stated purpose of the rules, as published in the City Record,” rejected the plaintiffs’ argument under the CAA. Metro. Taxicab, 2008 WL 4866021, at *14. The district court held that the plaintiffs had failed “to show how the 25/30 Rules are a standard relating to the control of emissions from new motor vehicles.” Id. (internal quotation marks omitted). -4- 1 achieve at least 25 city miles per gallon of fuel, and those that 2 were put into service beginning October 1, 2009 achieve 30 city 3miles per gallon (the “25/30 MPG rule”). In September 2008, the 4 plaintiffs, including the Metropolitan Taxicab Board of Trade and 5 several taxi fleet operators, sued the City, seeking to enjoin 6 the 25/30 MPG rule on the basis that it violated preemption 7 clauses in the EPCA and the CAA.The district court granted a 1 8 preliminary injunction after determining that the 25/30 MPG rule 9 related to fuel economy standards and was thus preempted by the 10 EPCA. Metro. Taxicab Bd. of Trade v. City of N.Y., No. 08 Civ. 11 7837, 2008 WL 4866021 (S.D.N.Y. Oct. 31, 2008).The City did 2 12 not appeal that decision. 13 On March 26, 2009, the City repealed the 25/30 MPG rule,and 14 issued new rules that regulated taxicab “lease caps” – theA hybrid vehicle for purposes of the new rules is a 3 “commercially available mass production vehicle originally equipped by the manufacturer with a combustion engine system together with an electric propulsion system that operates in an integrated manner.” 35 RCNY § 3-03.1(b). We use the term “hybrid” to encompass both hybrid vehicles as defined under the new rules and vehicles propelled by a “clean diesel” engine. -5- 1maximum dollar amount per shift for which taxis can be leased – 2 to provide incentives for reduced fuel usage and cleaner taxis. 3 Under the new rules, the lease caps for hybrid and “clean diesel” 4 taxis are raised by $3 per shift.35 RCNY § 1-78(a)(3)(i). At 3 5 the same time, the new rules reduce the lease caps for 6 non-hybrid, non-clean diesel vehicles, nearly all of which are 7 Ford Crown Victorias, in three phases. The new rules lower the 8 per shift lease caps on the Crown Victorias, except those that 9 are wheelchair accessible, by $4 on May 1, 2009; by $8 on May 1, 10 2010; and by $12 on May 1, 2011. The current baseline lease caps 11 from which these adjustments are made are: $105 for all day 12 shifts; $115 for night shifts on Sunday, Monday, and Tuesday; 13 $120 for night shifts on Wednesday; and $129 for night shifts on 14 Thursday, Friday, and Saturday. 35 RCNY § 1-78(a)(1). After the 15 third phase is implemented, the lease cap difference between 16hybrids and Crown Victorias would be $15 per shift, reflecting 17 the $3 upward adjustment for the hybrid lease caps and the $12 18 downward adjustment for the Crown Victoria lease caps. The new 19 rules are designed to effectively shift fuel costs from taxi 20 drivers, who currently pay for fuel, to fleet owners, who-6- 1 currently make vehicle purchasing decisions without the need to 2 internalize fuel costs. 3 The plaintiffs amended their initial complaint to challenge 4 these new rules and moved for a preliminary injunction against 5 the enforcement of the Crown Victoria lease caps, again citing 6 the preemption provisions of both the EPCA and the CAA. For 7 obvious reasons, the plaintiffs did not challenge the $3 upward 8 adjustment of the lease caps for hybrid taxis, which benefitted 9 them, and that adjustment went into effect on May 1, 2009. 10 At an evidentiary hearing on the plaintiffs’ motion, experts 11 for both sides testified on the economic impact of the new rules 12 on taxi fleet owners. The testimony of the plaintiffs’ expert 13 James Levinsohn tended to demonstrate that fleet owners would 14 earn between $5,500 and $6,500 less per year for each Crown 15Victoria leased under the eventual $12 downward adjustment in 16 comparison to leasing a hybrid under the $3 upward adjustment. 17 The plaintiffs’ expert estimated the current annual profit of 18 leasing a Crown Victoria to be $8,518 per car per year. Thus, 19 the lease cap reduction would lower profits by 65% to 75% for 20 each Crown Victoria. The City did not challenge this estimated 21 impact on plaintiffs’ profits. The City’s expert testified, 22 however, that fleet owners could still make a “reasonable rate of 23 return” on their purchase of a Crown Victoria notwithstanding the 24 $12 downward adjustment.-7- 1 On June 22, 2009, the district court granted a preliminary 2 injunction on the grounds that the plaintiffs were likely to 3 succeed on their claims that the new rules were preempted under 4 the EPCA and the CAA. The district court accepted the 5plaintiffs’ expert’s view of the economic impact of the new rules 6 on fleet owners’ profits and concluded that such a severe 7 disparity in the expected profits from leasing a hybrid as 8 compared to a Crown Victoria would leave the fleet owners with no 9 rational alternative to leasing the former and thus amounted to a 10 de facto mandate to purchase hybrid vehicles. The district court 11 found such a mandate to be related to both fuel economy standards 12 and the reduction of vehicle emissions, and thus sufficiently 13 likely to be preempted under the EPCA and the CAA so as to 14 warrant a preliminary injunction. 15 The City appeals the grant of the preliminary injunction. 16 17 DISCUSSION 18 This Court reviews the grant of a preliminary injunction for 19 abuse of discretion. See Almontaser v. N.Y. City Dep’t of Educ., 20 519 F.3d 505, 508 (2d Cir. 2008)(per curiam); Grand River Enter. 21 Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007)(per 22 curiam). “A district court abuses its discretion when it rests 23 its decision on a clearly erroneous finding of fact or makes an 24 error of law.” Almontaser, 519 F.3d at 508. In order to justify-8- 1 a preliminary injunction, a movant must demonstrate 1) 2 irreparable harm absent injunctive relief; 2) “either a 3 likelihood of success on the merits, or a serious question going 4 to the merits to make them a fair ground for trial, with a 5balance of hardships tipping decidedly in the plaintiff's favor,” 6 id.; and 3) that the public’s interest weighs in favor of 7 granting an injunction. Winter v. Natural Res. Def. Council, 8 Inc., 129 S. Ct. 365, 374 (2008). “When, as here, the moving 9party seeks a preliminary injunction that will affect government 10 action taken in the public interest pursuant to a statutory or 11 regulatory scheme, the injunction should be granted only if the 12 moving party meets the more rigorous likelihood-of-success 13 standard.” County of Nassau, N.Y. v. Leavitt, 524 F.3d 408, 414 14 (2d Cir. 2008) (brackets and internal quotation marks omitted). 15 In this case, the City’s sole challenge to the preliminary 16 injunction is that the plaintiffs are not likely to succeed on 17 their preemption claims. 18 19 I.Preemption Under the EPCA 20 The EPCA preemption clause states: 21 [A] State or a political subdivision of a State may not 22 adopt or enforce a law or regulation related to fuel 23 economy standards or average fuel economy standards for 24 automobiles covered by an average fuel economy standard 25 under this chapter. 26 27 49 U.S.C. § 32919(a).Even if there is no reference to or essential 4 incorporation of the preempted subject matter, courts must still ask whether the law nevertheless contains requirements that -9- 1 “Since [preemption] claims turn on Congress's intent, we 2 begin as we do in any exercise of statutory construction with the 3 text of the provision in question, and move on, as need be, to 4 the structure and purpose of the Act in which it occurs.” N.Y. 5 State Conference of Blue Cross & Blue Shield Plans v. Travelers 6 Ins. Co., 514 U.S. 645, 655 (1995) (citations omitted). In the 7 context of judging the scope of the preemption provision of the 8 Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 9 1144(a), the Supreme Court has held that determining whether a 10 state law relates to a preempted subject matter requires 11 examining whether the challenged law contains a "reference" to 12 the preempted subject matter or makes the existence of the 13preempted subject matter "essential to the law's operation." 14 Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., 15N.A., Inc., 519 U.S. 316, 324-25 (1997). If the law contains 16 such a reference or makes the existence of preempted subject 17 matter essential to the law’s operation, then that state law is 18 preempted by the federal law. See id. at 325 (“Where a State's 19 law acts immediately and exclusively upon ERISA plans . . . , or 20 where the existence of ERISA plans is essential to the law's 21 operation . . . , that ‘reference’ will result in 22 [preemption].”).4“amount[] to ‘connection[s] with’” the preempted subject matter.

Dillingham, 519 U.S. at 328 (second alteration in original) (quoting Travelers, 514 U.S. at 658). However, because we find that the City’s new rules contain a reference to fuel economy standards or make fuel economy standards essential to the operation of those rules, we need not specifically address whether the new rules have a connection with fuel economy standards. -10- 1 As a threshold matter, we may rely on ERISA preemption 2 precedents such as Travelers and Dillingham because the pertinent 3 language in that statute is virtually identical to the text in 4 the preemption provision of the EPCA, which preempts state laws 5 that are “related to fuel economy standards.” Compare 29 U.S.C. 6 § 1144(a), with 49 U.S.C. § 32919(a). Although the same 7 “relate[] to” provision arises in different preemption statutes, 8 we discern no basis for concluding that the meaning of the 9 language in each provision was not intended to be the same. Cf. 10 Travelers Indem. Co. v. Bailey, 129 S. Ct. 2195, 2203 (2009) 11 (noting generally that, “[i]n a statute, ‘the phrase “in relation 12 to” is expansive’” and applying that statutory reading to the 13 interpretation of a private settlement agreement). We note that 14 the City itself relies on Travelers in challenging the district 15 court’s ruling. See Appellants Br. at 57, 60. For purposes of 16 assessing preemption under the EPCA, the Supreme Court’s 17 discussions of the phrase “relate to” in ERISA cases is directly 18 applicable. 19 Thus, our first inquiry in determining whether the new rules-11- 1 relate to “fuel economy standards,” 49 U.S.C. § 32919(a), is 2 whether they contain a reference to fuel economy standards or 3make fuel economy standards essential to the operation of those 4 rules. Dillingham, 519 U.S. at 324-25. We conclude that they 5 do. 6 The new rules expressly rely on a distinction between hybrid 7 and non-hybrid vehicles. 35 RCNY § 1-78(a)(3) (providing for the 8 upward and downward lease cap adjustments on hybrid and non9 hybrid vehicles, respectively). The requirement that a taxi be a 10 hybrid in order to qualify for the upwardly adjusted lease cap 11 does nothing more than draw a distinction between vehicles with 12 greater or lesser fuel-efficiency. The equivalency of the term 13 “hybrid” with “greater fuel efficiency” for purposes of the new 14 rules is self-evident. First, the EPCA specifically requires the 15 separate consideration of “dual fueled” vehicles, including 16hybrids, in the determination of national fuel economy standards. 17 See 49 U.S.C. § 32901(a)(1)(J) (defining “electricity” as one 18 form of “alternative fuel”); see also id. § 32905(b) (requiring 19 the Administrator of the Environmental Protection Agency to 20measure the fuel economy of certain “dual fueled” automobile 21models in part with reference to the fuel economy of that model 22 when operating on “alternative fuel”). Second, imposing reduced 23 lease caps solely on the basis of whether or not a vehicle has a 24 hybrid engine has no relation to an end other than an improvement-12- 1 in fuel economy across the taxi fleets operating in New York 2 City. 3 Indeed, the City is unable to identify any plausible 4 alternative reason for the imposition of such an engine-based 5 rule. The City argues that the new rules “correct[] a structural 6problem with the standard vehicle lease arrangement that 7 artificially insulates fleet owners from fuel costs.” Appellants 8 Br. at 1. This proffered reason, however, still aims at the 9 improvement of fuel economy, which underlies the “structural 10 problem” relied upon by the City. This argument, moreover, 11 ignores the City’s mechanism for its structural correction, which 12 is to shift costs solely on the basis of a vehicle’s level of 13 fuel efficiency, i.e., whether the vehicle is a hybrid. Indeed, 14 the City’s current list of approved vehicles includes every car 15 approved for use under the now-repealed 25/30 MPG rule. The 16 City’s list of approved vehicles under the new rules, with the 17 exception of wheelchair accessible vehicles (which are exempt 18 from the lease cap adjustments) and the Crown Victoria, are 19 either hybrids or achieve at least 25 miles per gallon. See New 20 York City Taxi & Limousine Commission, Taxicab Vehicles in Use, 21 available at http://www.nyc.gov/html/tlc (follow “Safety & 22 Emissions” hyperlink; then follow “Taxicab Vehicles In Use” 23 hyperlink) (last visited June 1, 2010). The virtually complete 24 overlap of the approved vehicles under the 25/30 MPG rule and the-13- 1 new rules underlines further that, in furtherance of the City’s 2 regulatory purpose, “hybrid” is simply a proxy for “greater fuel 3 efficiency.” In sum, the new rules are not applicable to 4 gasoline costs in general, nor are they neutral to the fuel 5 economy of the vehicles to which they apply. Rather, they are 6 directly related to fuel economy standards because they rely on 7 fuel economy, and on nothing else, as the criterion for 8 determining the applicable lease cap. 9 Because the parties appear to have assumed before the 10 district court that the new rules did not directly reference fuel 11 economy standards or incorporate those standards into the new 12 rules’ operation, they and the district court focused on whether 13 the new rules effectively mandate the use of fuel efficient 14 vehicles through their economic impact. In that context, the 15 district court rejected the City’s argument that the new rules 16 are permissible because they only provide an incentive, rather 17 than create a de facto mandate, for the purchase of hybrid 18 vehicles. Appellants Br. at 7, 28. This attention to economic 19 impact was misguided, however, because the rules in question 20 directly regulate the relevant preempted subject matter. 21 22 II.The Plaintiffs’ Preliminary Injunction 23 Although we find the district court’s conclusion that the 24 rules effected a mandate irrelevant to our analysis, the district-14- 1 court’s preliminary injunction was appropriate. The City does 2 not challenge the district court’s determination that the 3plaintiffs face irreparable harm absent injunctive relief, nor 4 does it challenge the preliminary injunction on either the 5balance of hardships or public interest prongs of the preliminary 6 injunction standard. The sole issue before us is whether the 7 plaintiffs have established a likelihood of success on the 8merits. Leavitt, 524 F.3d at 414. 9 The City’s new rules, based expressly on the fuel economy of 10 a leased vehicle, plainly fall within the scope of the EPCA 11 preemption provision. The plaintiffs, therefore, have 12 demonstrated a likelihood, indeed a certainty, of success on the 13merits, and we affirm the district court’s preliminary injunction 14 on this ground. Because preemption under the EPCA is sufficient 15 to affirm the preliminary injunction, there is no need to reach 16 the question of whether the preemption provision of the CAA would 17 invalidate the City’s new rules. 18 19 CONCLUSION 20 We AFFIRM the district court’s order granting the 21 preliminary injunction.