     Case: 12-10470   Document: 00512273521     Page: 1   Date Filed: 06/13/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                                 June 13, 2013

                                 No. 12-10470                    Lyle W. Cayce
                                                                      Clerk



ASSOCIATION OF TAXICAB OPERATORS USA,

                                           Plaintiff–Appellant

v.

CITY OF DALLAS,

                                           Defendant–Appellee



                Appeal from the United States District Court
                     for the Northern District of Texas



Before JONES, DENNIS, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      The City of Dallas, Texas (“Dallas” or the “City”) enacted an ordinance
offering taxicabs certified to run on compressed natural gas (“CNG”) a “head-of-
the-line” privilege at a municipally-owned airport, Love Field. The measure
permits certified CNG-fueled taxicabs to “cut” ahead of gasoline-powered taxis
in the queue for soliciting passengers at Love Field. The Association of Taxicab
Operators, USA (“ATO”), which represents cab operators in the Dallas and Fort
Worth area, sued, claiming the ordinance is preempted by the Clean Air Act, 42
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                                     No. 12-10470

U.S.C. § 7543(a). Finding the ordinance is not preempted, we AFFIRM the
district court’s summary judgment for the City.
                          FACTS AND PROCEEDINGS
      In March 2010, Dallas passed Ordinance 27831, establishing “an incentive
program that promotes the use of [CNG] in taxicabs authorized to operate at
Dallas Love Field.” Ordinance 27831’s preamble states that Dallas and Tarrant
Counties are nonattainment areas for ozone.1 It further specifies that vehicles
powered by CNG emit fewer air pollutants than traditional vehicles.2 By its
operative provisions, Ordinance 27831 amended Dallas’s City Code to grant a
“head-of-the-line” privilege to CNG-powered taxicabs that collect passengers at
Love Field, an airport owned by the City. A “taxicab verified as a dedicated
[CNG] vehicle” is entitled “to advance to the front of a taxicab holding or
dispatch area, ahead of all ineligible taxicabs . . . .” As implemented, the head-
of-the-line privilege only applies to cabs making unscheduled pick ups of
passengers at Love Field. Taxicabs may deposit passengers at Love Field or
arrive for a prearranged pick up without priority based on CNG status. The City
grants no head-of-the-line privilege to taxis, CNG-fueled or otherwise, anywhere
else within its limits.
      The law defines a “dedicated [CNG] vehicle” as “a vehicle that operates
exclusively on [CNG].” The owner or operator of a dedicated CNG vehicle
wishing to exercise the head-of-the-line privilege first must apply to Dallas’s
Director of Aviation, submitting: (1) a name, address, and telephone number; (2)
a description of the cab; (3) proof either that the vehicle was “equipped by the


      1
        Ozone nonattainment areas are “areas whose ozone levels currently exceed the
maximum level permitted by” the National Ambient Air Quality Standards promulgated under
the Clean Air Act. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 476 (2001); see 42 U.S.C.
§ 7407(d)(1).
      2
        According to a Dallas Environmental Coordinator, a CNG vehicle emits approximately
seventy percent fewer ozone-generating pollutants than a gasoline vehicle.

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                                    No. 12-10470

original manufacturer with an engine exclusively powered by [CNG] and has
remained unaltered,” or that the cab was “converted to be equipped with an
engine exclusively powered by [CNG], and the conversion was in compliance
with” federal regulations; and (4) “[a]ny other information . . . reasonably
necessary to determine whether” the cab runs exclusively on CNG. The Director
of Aviation issues all successful applicants—hereinafter called “CNG cabs”—a
nontransferable emblem or sticker identifying the cab as a CNG cab. Ordinance
27831 also authorizes a criminal penalty of up to $500 for a conviction for
“violating a provision of this ordinance.”
      Ordinance 27831 took effect on April 10, 2010. Five days later, ATO filed
suit in the United States District Court for the Northern District of Texas,
seeking a declaratory judgment that Ordinance 27831 is preempted by § 209(a)
of the Clean Air Act, 42 U.S.C. § 7543(a), which in relevant part preempts “any
standard relating to the control of emissions from new motor vehicles or new
motor vehicle engines subject to this part,” § 7543(a).3 ATO also requested a
permanent injunction barring enforcement of the head-of-the-line privilege for
CNG cabs. ATO moved immediately for a temporary restraining order (“TRO”)
and a preliminary injunction against the law. The district court granted a TRO,
halting enforcement of Ordinance 27831 initially. However, the district court
denied the request for a preliminary injunction several months later, after
conducting an evidentiary hearing. In its preliminary injunction order, the
district court determined ATO had not demonstrated a likelihood of successfully
showing that § 209(a) preempts Ordinance 27831. The court cited the long
history of state and local taxicab regulation, as well as Congress’s determination
to exempt from preemption local air pollution control measures focused on the


      3
        Dallas taxicab companies relying on Ordinance 27831 to invest substantial sums in
developing a CNG fleet to operate at Love Field—namely, Irving Holdings, Inc. and Yellow
Checker Cab Companies—later intervened as defendants in support of Dallas.

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                                       No. 12-10470

use of vehicles. It further found that Ordinance 27831, an incentive program
that changes only the order of operations in Love Field taxi dispatching, was not
an enforceable “standard relating to the control of emissions” implicated by §
209(a)’s express preemption provision.             After the district court’s denial of
preliminary injunctive relief, Dallas resumed implementation of Ordinance
27831.4
       In August 2011, the City filed a motion for summary judgment on all of
ATO’s claims. In its response, ATO relied in part on affidavits from drivers of
gasoline-powered cabs who solicited fares primarily at Love Field to illustrate
the negative consequences of Ordinance 27831. The statements were taken in
November 2010. The driver-affiants reported the head-of-the-line privilege had
led to a rise in the number of CNG cabs servicing Love Field and had slashed
business by as much as fifty percent for traditional cabs. By one ATO-member
driver’s count, forty-six CNG cabs operated at Love Field.5 As a result, they
reported, some drivers of gasoline-powered taxicabs worked longer hours to
make ends meet and were forced to weigh the expense of purchasing a CNG
vehicle against the prospect of giving up their work altogether.
       Still, the parties do not dispute, Love Field is hardly the only route open
to cab drivers in Dallas. ATO’s Chairman of the Board stated that as of May
2010 there were approximately 2800 taxicabs in Dallas, and only between 150
and 200 of them regularly operated at Love Field.                      Similarly, Dallas’s


       4
         ATO appealed the denial of preliminary injunctive relief to this court. ATO did not
timely file its brief and record excerpts, and the clerk entered an order dismissing the appeal
under Fifth Circuit Rule 42.3 for want of prosecution. During the pendency of that appeal,
ATO filed a second motion for a TRO and preliminary injunction. The district court denied the
motion without prejudice, citing its lack of jurisdiction over the case during ATO’s appeal.
       5
        Dallas’s Transportation Regulation Manager specified that forty-three CNG cabs were
authorized to operate in Dallas as of April 2010. ATO maintains, but without citation to
record evidence, that the number of CNG cabs at Love Field grew subsequently to almost
ninety.

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Transportation Regulation Manager reported that in February 2010 there were
2022 cabs authorized to operate in Dallas and 1805 drivers with taxicab licenses.
      The district court found no genuine issue of material fact appropriate for
trial, granted Dallas’s motion, and rendered final judgment on nearly identical
grounds as in its preliminary injunction order. ATO appealed.
                           STANDARD OF REVIEW
      We review the district court’s summary judgment de novo and apply the
same standard as the district court. Dameware Dev., L.L.C. v. Am. Gen. Life Ins.
Co., 688 F.3d 203, 206 (5th Cir. 2012). We may grant summary judgment if the
record, viewed in the light most favorable to the nonmovant, “demonstrates that
there is no genuine issue of material fact and that the moving party is entitled
to judgment as a matter of law.” United States v. Renda, 709 F.3d 472, 478 (5th
Cir. 2013); see FED. R. CIV. P. 56(a). A dispute gives rise to a genuine issue of
material fact if the evidence permits a reasonable jury to rule in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“[C]onclusory statements, speculation, and unsubstantiated assertions cannot
defeat a motion for summary judgment.” RSR Corp. v. Int’l Ins. Co., 612 F.3d
851, 857 (5th Cir. 2010). We require “the party opposing the summary judgment
. . . to identify specific evidence in the record and to articulate precisely how this
evidence supports his claim.” Id.
                                  DISCUSSION
      ATO argues the Clean Air Act, in § 209(a), preempts Dallas from imposing
the head-of-the-line privilege in Ordinance 27831. The wellspring of preemption
doctrine is the Constitution’s Supremacy Clause, which states:
      This Constitution, and the Laws of the United States which shall be
      made in Pursuance thereof; and all Treaties made, or which shall be
      made, under the Authority of the United States, shall be the
      supreme Law of the Land; and the Judges in every State shall be



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      bound thereby, any Thing in the Constitution or Laws of any State
      to the Contrary notwithstanding.
U.S. CONST. art. VI, cl. 2; see Kurns v. R.R. Friction Prods. Corp., 132 S. Ct.
1261, 1265 (2012). In all preemption cases, “the purpose of Congress is the
ultimate touchstone.”      Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). Principles of federalism
inform our search for congressional intent. Courts must assume “that the
historic police powers of the States [a]re not to be superseded by the Federal Act
unless that was the clear and manifest purpose of Congress.” Altria Grp., Inc.
v. Good, 555 U.S. 70, 77 (2008) (quoting Rice v. Santa Fe Elevator Corp., 331
U.S. 218, 230 (1947)).
      A federal law may preempt state law expressly, when Congress explicitly
provides. See Kurns, 132 S. Ct. at 1265–66. A federal law may also preempt
state law impliedly, when state law either conflicts with federal law or when a
federal statute exclusively occupies the field in which the state has legislated.
See id. ATO rests its case wholly on the text of § 209(a) of the Clean Air Act, an
express preemption provision. Determining whether Congress has expressly
preempted state law begins with the federal statutory language itself, “which
necessarily contains the best evidence of Congress’ pre-emptive intent.” CSX
Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). “[W]hen the text of a
pre-emption clause is susceptible of more than one plausible reading, courts
ordinarily ‘accept the reading that disfavors pre-emption.’” Altria Grp., 555 U.S.
at 77 (quoting Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005)).
      Section 209(a) provides:
      No State or any political subdivision thereof shall adopt or attempt
      to enforce any standard relating to the control of emissions from
      new motor vehicles or new motor vehicle engines subject to this
      part. No State shall require certification, inspection, or any other
      approval relating to the control of emissions from any new motor
      vehicle or new motor vehicle engine as condition precedent to the

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       initial retail sale, titling (if any), or registration of such motor
       vehicle, motor vehicle engine, or equipment.
42 U.S.C. § 7543(a). Clarifying the limits of § 209(a)’s preemptive reach is §
209(d), which states:
       Nothing in this part shall preclude or deny to any State or political
       subdivision thereof the right otherwise to control, regulate, or
       restrict the use, operation, or movement of registered or licensed
       motor vehicles.
42 U.S.C. § 7543(d).
       ATO argues that Ordinance 27831 fails as preempted by § 209(a)’s first
sentence, because in enacting the head-of-the-line privilege, Dallas “adopt[ed]
or attempt[ed] to enforce [a] standard relating to the control of emissions from
new motor vehicles or new motor vehicle engines subject to this part,” 42 U.S.C.
§ 7543(a). We address whether Ordinance 27831 imposes any such “standard,”
either on its face, or as ATO also urges, by the inexorable, coercive effects
flowing from its enforcement.6
A.     Whether Ordinance 27831 Imposes a Preempted “Standard” on its
       Face
       ATO’s first contention is the head-of-the-line privilege directly imposes a
“standard for taxicabs [of] dedicated CNG.” Applying the definition of a § 209(a)
“standard” the Supreme Court discerned in Engine Manufacturers Association
v. South Coast Air Quality Management District (EMA), 541 U.S. 246 (2004), we


       6
         Finding the law does not impose a “standard,” we need not address whether the
statute “relat[es] to the control of emissions” or concerns “new motor vehicles or new motor
vehicle engines subject to this part.” 42 U.S.C. § 7543(a). Of course, we could not conclude
that § 209(a) preempts a state law unless the state law meets those latter requirements, in
addition to serving as a “standard.” See § 7543(a). Likewise, neither do we reach whether
Ordinance 27831 is exempted from preemption under § 209(d) as a permissible effort by Dallas
“to control, regulate, or restrict the use, operation, or movement of registered or licensed motor
vehicles.” § 7543(d); see Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1094 (D.C. Cir. 1996)
(describing that § 209(d) safeguards the historic power of “states to adopt in-use
regulations—such as carpool lanes, restrictions on car use in downtown areas, and programs
to control extended idling of vehicles—that are expressly intended to control emissions”).

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                                       No. 12-10470

disagree. The Court in EMA began its analysis saying that “standard” most
generally means “that which ‘is established by authority, custom, or general
consent, as a model or example; criterion; test.’” 541 U.S. at 252–53 (quoting
WEBSTER’S SECOND NEW INTERNATIONAL DICTIONARY 2455 (1945)). The Court
then explicitly narrowed the meaning of “standard” in § 209(a)’s statutory
context, highlighting that it refers to a mandatory, pollution-related obligation:
       The criteria referred to in § 209(a) relate to the emission
       characteristics of a vehicle or engine. To meet them the vehicle or
       engine must not emit more than a certain amount of a given
       pollutant, must be equipped with a certain type of pollution-control
       device, or must have some other design feature related to the control
       of emissions.
541 U.S. at 253 (emphasis added); see also id. (adding that “[t]his interpretation
is consistent with the use of ‘standard’ throughout Title II of the [Clean Air Act]
(which governs emissions from moving sources) to denote requirements such as
numerical emission levels with which vehicles or engines must comply . . . or
emission-control technology with which they must be equipped”) (emphasis
added) (internal citations omitted).7 The Court in EMA, accordingly, found that
directives by a California air pollution control body to certain municipal and
private vehicle fleets to purchase reduced-emission vehicles were an “attempt to
enforce” a “standard.” 541 U.S. at 255 (internal quotation marks omitted). It
was, the Court twice elaborated, “[a] command, accompanied by sanctions, that




       7
          As the Oxford English Dictionary defines, “standard,” in its oldest sense, is “[a]
military or naval ensign,” such as “the distinctive ensign of a king, great noble, or commander,
or of a nation or city.” 2 OXFORD ENGLISH DICTIONARY 814 (compact ed. 1979). “Standard,” as
in “standard of measure,” appeared to develop figuratively from the word’s connotation of
hierarchical, martial uniformity: “the king’s standard being the point of reunion of the army,
and the centre from which commands are issued.” Id.

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certain purchasers may buy only vehicles with particular emission
characteristics.” Id. (emphasis added).8
       As ATO does not dispute, Ordinance 27831 is not phrased as a “command,
accompanied by sanctions,” EMA, 541 U.S. at 255, to adopt CNG technology.
Nowhere does the Dallas law require cab drivers to acquire or operate CNG cabs.
By its terms, Ordinance 27831 demands no more of traditional cabs than that,
if they wish to make unscheduled pick ups at Love Field, they honor the
head-of-the-line privilege that CNG cabs may invoke. It provides an incentive
to encourage cab drivers to transition to CNG technology, and we take
instruction from the Court in EMA’s clarification that it was not reaching
whether an incentive to adopt pollution-control measures would be a “standard”
preempted by § 209(a). 541 U.S. at 254–55, 258. In considered discussion,
Justice Scalia, writing for the Court, noted such incentive programs “are
significantly different from command-and-control regulation,” and that:
       Suffice it to say that nothing in the present opinion necessarily
       entails pre-emption of voluntary programs. It is at least arguable
       that the phrase ‘adopt or attempt to enforce any standard’ refers
       only to standards that are enforceable—a possibility reinforced by
       the fact that the prohibition is imposed only on entities (States and
       political subdivisions) that have power to enforce.




       8
         The ruling in EMA is consistent with our sister circuits’ pre-EMA precedent that state
laws requiring that specific and certain percentages of auto sales be of low-emission motor
vehicles are also preempted by § 209(a). See Ass’n of Int’l Auto. Mfrs., Inc. v. Comm’r, Mass.
Dep’t of Envtl. Prot., 208 F.3d 1, 6–7 (1st Cir. 2000); Am. Auto. Mfrs. Ass’n v. Cahill, 152 F.3d
196, 200 (2d Cir. 1998). The Ninth Circuit has subsequently applied EMA to other preemption
provisions, to uphold or bar state emissions regulations. Compare Jensen Family Farms, Inc.
v. Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934, 938–40 (9th Cir. 2011)
(finding California rules related to registration and fees for diesel engines used in agriculture
were not preempted by § 209(e) of the Clean Air Act), with Pac. Merch. Shipping Ass’n v.
Goldstene, 517 F.3d 1108, 1114 (9th Cir. 2008) (holding California prohibitions on emissions
from diesel engines used by ships in California coastal waters were a preempted “standard”
under § 209(e) of the Clean Air Act).

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Id. at 258. We agree with the district court in concluding that there is no
language in Ordinance 27831 creating a standard that is enforceable to convert
cabs from gasoline to CNG power. See EMA, 541 U.S. at 258. It is a compelling
offer, not a compelled restraint. All Dallas may “enforce” under the law is
compliance with the head-of-the-line privilege and the procedure for verifying
dedicated CNG vehicles. We conclude that Ordinance 27831, enacted using
traditional police powers, is not “superseded by . . . [any] clear and manifest
purpose of Congress,” above all where Congress’s term “standard” has been
identified as one “susceptible” to a mandate/incentive distinction. See Altria
Grp., 555 U.S. at 77 (internal quotation marks omitted).
B.     Whether Ordinance 27831 is a “Standard” because of its Indirect
       Effects
       ATO additionally argues that even if Ordinance 27831 is not drafted
unambiguously as a § 209(a) “standard,” the head-of-the-line privilege’s indirect
effects render it one in application. It appears only one published district court
decision, Metropolitan Taxicab Board of Trade v. City of New York (Metro. II),
633 F. Supp. 2d 83, 103–05 (S.D.N.Y. 2009), aff’d on other grounds by 615 F.3d
152 (2d Cir. 2010), addresses whether an incentive may be preempted by §
209(a) because its application would achieve, effectively, a mandatory
“standard.”
       In Metro. II, New York City adopted a measure to raise the rate at which
cab owners could lease hybrid vehicles to cab drivers for a twelve-hour shift by
three dollars, but to reduce the same rate owners could charge for non-hybrid
and non-wheelchair-accessible cabs by as much as twelve dollars. Id. at 85.9 In

       9
        In a prior case, Metropolitan Taxicab Board of Trade v. City of New York (Metro. I),
No. 08-cv-7837(PAC), 2008 WL 4866021 (S.D.N.Y. Oct. 31, 2008), the same district court
preliminarily enjoined an earlier New York City law, which mandated that all new taxis meet
a miles per gallon minimum. The court found the plaintiffs “demonstrated a likelihood of
success of showing” that the New York City measure was preempted by the federal Energy
Policy and Conservation Act of 1975 (“EPCA”), 49 U.S.C. § 32919, which sets national fuel

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determining whether the scheme was preempted under the EPCA and,
alternatively, under § 209(a), the district court asked whether the “new rules are
a mandate to taxicab owners to purchase only hybrid or clean-diesel vehicles,”
and if so, “whether such a mandate is preempted by federal law.” Metro. II, 633
F. Supp. 2d at 85. The court was careful to note that “a local law is not
preempted when it only indirectly regulates parties within a preempted field and
presents regulated parties with viable, non-preempted options.” Id. at 95–96.
       In distilling those principles, the Metro. II court relied on Supreme Court
precedent interpreting the preemption provision in the Employee Retirement
Income Security Act of 1974 (“ERISA”), which “supercede[s] any and all State
laws insofar as they may now or hereafter relate to any employee benefit plan.”
29 U.S.C. § 1144(a); see Metro. II, 633 F. Supp. 2d at 93–96; N.Y. State
Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645
(1995); Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A.,
519 U.S. 316 (1997). In Travelers Insurance, 514 U.S. 645, the Supreme Court
analyzed surcharges imposed by New York to encourage health insurance
customers, including ERISA plans, to choose Blue Cross & Blue Shield. The
Court found the surcharges altered ERISA plans’ “shopping decisions,” but did
“not affect the fact that any plan will shop for the best deal it can get, surcharges
or no surcharges.” Id. at 660; see Dillingham Constr., 519 U.S. at 332–33. The
Court concluded that the scheme was meaningfully distinct from state laws that
“mandated employee benefit structures or their administration,” or “provid[ed]
alternative enforcement mechanisms.” Travelers Ins., 514 U.S. at 658. It



economy requirements. Metro. I, 2008 WL 4866021, at *15. It was in reaction to the Metro.
I ruling that New York City adopted the alternative approach at issue in Metro. II. Metro. II,
633 F. Supp. 2d at 85. Notably, the Metro. I court found the plaintiffs did not make a likely
showing the law was preempted by the Clean Air Act, because the miles per gallon minimum
was “silent as to emissions” and was not “a de facto regulation of emissions.” Metro. I, 2008
WL 4866021, at *14.

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further distinguished the hypothetical “state law [that] might produce such
acute, albeit indirect, economic effects, by intent or otherwise, as to force an
ERISA plan to adopt a certain scheme of substantive coverage or effectively
restrict its choice of insurers,” such that it would qualify for preemption. Id. at
668; see also Dillingham Constr., 519 U.S. at 333 (“It cannot be gainsaid that
[the California law at issue] has the effect of encouraging apprenticeship
programs—including ERISA plans—to meet the standards set out by California,
but it has not been demonstrated here that the added inducement created by the
wage break available on state public works projects is tantamount to a
compulsion upon apprenticeship programs.”).
      The Metro. II district court found the New York City measure was so
coercive as to indirectly mandate that cab owners purchase hybrids,
“constitut[ing] an offer which can not, in practical effect, be refused.” 633 F.
Supp. 2d at 99. It concluded the plaintiffs established a likelihood of showing
the lease rates imposed a preempted standard under § 209(a), as they
“effectively force Fleet Owners to purchase hybrid taxicabs, and the purpose and
effect of the rules is to reduce emissions.” Id. at 105. The district court similarly
found the plaintiffs established a likelihood of success in proving the rule was
preempted under the EPCA. Id. at 103. It granted the plaintiffs’ motion to
preliminarily enjoin the rule. Id. at 106. The Second Circuit affirmed, but
without determining whether the law was preempted by § 209(a). Metro. II, 615
F.3d at 158.
      ATO argues, echoing the Metro. II district court, that the economic
hardship wrought on traditional cabs at Love Field by Ordinance 27831 is “an
effective mandate” to convert to CNG vehicles or to abandon “their chosen field
of work.” It specifies that “drivers had one, basic option if they wish to remain
in business at Love Field: drive a CNG taxicab.” The summary judgment
evidence, particularly the taxi driver affidavits, does support the inference that

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                                       No. 12-10470

Ordinance 27831’s head-of-the-line privilege has decreased business for
traditional cabs servicing Love Field and increased the ranks of CNG cab
drivers. We may further infer that the law alters the “shopping decisions” for
traditional cab drivers in determining where in the City to operate.                     See
Travelers Ins., 514 U.S. at 660. But we agree with the district court that ATO
does not offer record evidence to show that the law effectively compels a
particular course of action. See RSR Corp., 612 F.3d at 857. ATO does not point
to evidence, for instance, that CNG cabs may displace traditional cabs servicing
other parts of the City, or that traditional cab drivers could not compensate for
losses at Love Field by soliciting passengers elsewhere. Rather, the undisputed
facts show that of the nearly 2800 cabs in Dallas, at most 200 operate regularly
at Love Field. By those numbers, even if CNG cabs were to gain exclusive
command of the Love Field route by virtue of Ordinance 27831, they would
comprise, at most, seven percent of the Dallas fleet.                  As Dallas further
highlights, gasoline cab drivers enjoy some competitive advantages over CNG
cab counterparts, such as the right to collect a surcharge from customers when
gasoline rises above $3.01 per gallon. That Ordinance 27831 may have its
intended effect and substitute CNG cabs for traditional cabs at Love Field does
not show that Dallas cab drivers face “such acute, albeit indirect, economic
effects . . . as to force” them to switch vehicles. See Travelers Ins., 514 U.S. at
668; Metro. II, 633 F. Supp. 2d at 105.10


       10
          ATO also relies on the Second Circuit decision in Metro. II, arguing that this court
need not determine that Dallas’s scheme amounts to an economic mandate to find it is
preempted, since it “relates to” emissions control. The Second Circuit in Metro. II construed
the EPCA’s preemption provision, which broadly preempts state “law[s] or regulation[s]
related to fuel economy standards,” 49 U.S.C. § 32919(a); see Metro. II, 615 F.3d at 157–58,
and not state “standard[s] relating to the control of emissions,” as in § 209(a), 42 U.S.C. §
7543(a) (emphasis added). Even if Ordinance 27831 “relat[es] to the control of emissions,” §
7543(a), that would not answer whether it is a preempted “standard,” as defined in EMA. As
described above, especially informed by the Supreme Court’s considered discussion in EMA,
we hold that in granting a head-of-the-line privilege to CNG cabs, Ordinance 27831 does not

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                                    No. 12-10470

      Reaching that conclusion does not require us to parse precisely when an
incentive program might turn sufficiently coercive to qualify as a de facto
“standard.” That question, factually and legally, remains for future cases. The
record here, which ATO had the opportunity to develop in discovery, simply does
not support ATO’s theory of preemption by acute economic coercion.              We
conclude that the indirect consequences of Ordinance 27831 do not render it
preempted by § 209(a).
                                    CONCLUSION
      In light of the foregoing, we AFFIRM summary judgment in favor of
Dallas.




by its terms impose a “standard.”

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