     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
 8   METROPOLITAN 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
30             Defendants-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



                                          -1-
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 Defendants-
21                                           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,

                                    -2-
 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 fuel-

21   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

25   Air 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, 2008


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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

3    miles 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.1         The district court granted a

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).2         The City did

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” – the


             1
            The EPCA states, in relevant part: “[A] State or a
     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).
             2
            The district court, having “limited its review to the
     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    maximum 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.3      35 RCNY § 1-78(a)(3)(i).   At

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

16   hybrids 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


          3
            A hybrid vehicle for purposes of the new rules is a
     “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-
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

15   Victoria 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.


                                      -6-
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

5    plaintiffs’ 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


                                      -7-
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

5    balance 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

9    party 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).


                                      -8-
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

13   preempted subject matter "essential to the law's operation."

14   Cal. Div. of Labor Standards Enforcement v. Dillingham Constr.,

15   N.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


          4
            Even if there is no reference to or essential
     incorporation of the preempted subject matter, courts must still
     ask whether the law nevertheless contains requirements that

                                     -9-
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



     “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    relate to “fuel economy standards,” 49 U.S.C. § 32919(a), is

2    whether they contain a reference to fuel economy standards or

3    make 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 non-

9    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

16   hybrids, 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

20   measure the fuel economy of certain “dual fueled” automobile

21   models 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


                                    -11-
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

6    problem 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


                                    -12-
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


                                    -13-
1    court’s preliminary injunction was appropriate.    The City does

2    not challenge the district court’s determination that the

3    plaintiffs face irreparable harm absent injunctive relief, nor

4    does it challenge the preliminary injunction on either the

5    balance 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

8    merits.   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

13   merits, 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.




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