Ass'n of Taxicab Operators United States v. City of Dall.

• Decision Date: 13 June 2013
• Docket Number: No. 12–10470.,12–10470.
• Citation: 720 F.3d 534
• Parties: ASSOCIATION OF TAXICAB OPERATORS USA, Plaintiff–Appellant v. CITY OF DALLAS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

720 F.3d 534

ASSOCIATION OF TAXICAB OPERATORS USA, Plaintiff–Appellant

v.CITY OF DALLAS, Defendant–Appellee.

No. 12–10470.

United States Court of Appeals, Fifth Circuit.

June 13, 2013.

Kelly Dean Hollingsworth, Attorney, Travis, Calhoun & Conlon, P.C., Dallas, TX, for Plaintiff–Appellant.

Barbara Elaine Rosenberg, Esq., Christopher John Caso, Esq., Assistant City Attorney, City Attorney's Office, Michael Forest Nelson, Esq., Burt Barr & Associates, L.L.P., Dallas, TX, for 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 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 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 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 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); seeFed.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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 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., ––– U.S. ––––, 132 S.Ct. 1261, 1265, ––– L.Ed.2d –––– (2012). In all preemption cases, “the purpose of Congress is the ultimate touchstone.” Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (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, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (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, 113 S.Ct. 1732, 123 L.Ed.2d 387 (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.’ ”...