Ophir v. City of Boston, Civil Action No. 09-10467-WGY.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtWilliam G. Young
Citation647 F.Supp.2d 86
PartiesRaphael OPHIR, and Boston Taxi Owners Association, Inc., Plaintiffs, v. CITY OF BOSTON, and Edward Davis, as Commissioner of the Boston Police Department, Defendants.
Decision Date14 August 2009
Docket NumberCivil Action No. 09-10467-WGY.
647 F.Supp.2d 86
Raphael OPHIR, and Boston Taxi Owners Association, Inc., Plaintiffs,
v.
CITY OF BOSTON, and Edward Davis, as Commissioner of the Boston Police Department, Defendants.
Civil Action No. 09-10467-WGY.
United States District Court, D. Massachusetts.
August 14, 2009.

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Paul H. Merry, Boston, MA, for Plaintiffs.

Helen G. Litsas, Kristina Racek Pechulis, Melissa A. Potvin, Suchita B. Desai, City of Boston Law Department, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

WILLIAM G. YOUNG, District Judge.


My ten year old grandson came to watch the motion session where this matter was argued. When it was over, he said, "Why can't Boston do what it wants with its taxis? It's for the environment."

Why indeed?

The answer, Cam, is that the Congress of the United States, pursuing national goals it considers important, has forbidden Boston from taking this initiative on behalf of its citizens.1

I. INTRODUCTION

"A hallmark of environmental federalism is that neither federal nor state governments limit themselves to what many legal scholars have deemed to be their appropriate domains." David Adelman & Kirsten Engel, Adaptive Federalism: The Case Against Reallocating Environmental Regulatory Authority, 92 Minn. L.Rev. 1796, 1796 (2008). "The federal government continues to regulate local issues . . . which have few direct interstate connections and few benefits from federal uniformity" while state and local governments "are developing policies on environmental issues of national or even international scale, such as global climate change." Id. While this Court never hesitates to point out criticism of the Supreme Court's sweeping federal preemption jurisprudence, see, e.g., Alshrafi v. American Airlines, Inc., 321 F.Supp.2d 150, 156 n. 7 (D.Mass.2004), in this case it is a local government that has overstepped its bounds.

In August 2008, the City of Boston ("the city") implemented Boston Police Department Rule 403 ("Rule 403"), which in effect mandates an all hybrid taxi fleet by 2015.2 Rule 403 provides, in relevant part: "Every

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vehicle put into service as a taxi as of August 29, 2008 shall be a new Clean Taxi vehicle or must have been purchased before August 29, 2008."3 Rule 403 [Doc. No. 37 Attach. 1, Exhibit A], Section 3, II(a). The rule defines "Clean Taxi" as "one that meets efficiency and cleanliness standards as set forth by the Inspector of Carriages and the Commissioner of the City of Boston Environment Department" and is included in a list of "acceptable vehicles" maintained by the Hackney Carriage Unit of the Boston Police Department.4 Id. Section 3, I(d). The list currently in effect includes only new hybrid-powered vehicles from the current model year, as did the list in effect last year. See Boston Police Department, Inspector of Carriages Notice 09-02 (Feb. 9, 2009) [Doc. No. 37 Attach. 1, Exhibit B]; Inspector of Carriages Notice 08-05 (Sept. 11, 2008) [Doc. No. 48 Attach. 1]. Because the city requires all taxis owned by multiple-taxi companies to be replaced every six years and those owned by single-medallion5 holders every seven years, see Rule 403, Section 3, III(c)(xvii), enforcement of Rule 403 would result in an entirely hybrid fleet by 2015. See Press Release, Mayor's Office, Mayor Menino Announces Taxi Fleet to be Fully Hybrid by 2015 (August 29, 2008) [Doc. No. 40 Attach. 9].

On March 27, 2009, Raphael Ophir, owner of several hackney carriage medallions in the city, and the Boston Taxi Owners Association, Inc. ("the Association"), a nonprofit corporation comprised of medallion owners,6 (collectively, "the taxi operators"), asked this Court for a declaratory judgment that the hybrid requirement of Rule 403 is preempted by the Energy Policy and Conservation Act of 1975 ("EPCA"), 49 U.S.C. §§ 32901 et seq., and the Federal Clean Air Act ("CAA"), 42 U.S.C. §§ 7401 et seq.7 See Complaint [Doc. No. 1 Attach. 4]. They sought preliminary and permanent injunctive relief from its enforcement, and formally moved for a preliminary injunction on June 2, 2009. At a hearing on June 5, 2009, this Court, in accordance with its practice pursuant to Federal Rule of Civil Procedure 65(a)(2), combined further hearing on the motion with a trial on the merits and placed the case on its running trial list to commence no earlier than July 6, 2009, without affording the taxi operators any preliminary relief.

On June 15, 2009, the city8 moved to dismiss the section 1983 claims, the Massachusetts Administrative Procedure Act claim, all claims by the Boston Taxicab Operator's Association, and all claims

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against Davis. See City's Motions to Dismiss [Doc. No. 18, 20]. The motions were scheduled to be heard on July 23, 2009. On July 8, 2009, the city moved for partial summary judgment, asking the Court to rule that as matter of law the hybrid requirement was not preempted by federal law.9 See City Memorandum in Support of Partial Summary Judgment ("City Mem.") [Doc. No. 36].

At a hearing on July 23, 2009, the Court preliminarily enjoined the city's enforcement of the hybrid requirement of Rule 403, concluding that the taxi operators had shown they were likely to suffer irreparable harm without such relief and had shown a likelihood of success on the merits.10

The city insists that, in promulgating Rule 403, it "gave no consideration to whatever environmental or societal benefits might accompany the use of hybrid vehicles," City Statement of Facts [Doc. No. 37] ¶ 27, and that the rule's "predominating purpose was to modernize and improve the quality and appearance of the Boston taxi fleet." City Mem. In Support [Doc. No. 36] at 9. In this Circuit, however, the focus of the Court's preemption analysis must be on the effects of the challenged regulation rather than its purpose. See Associated Industries of Massachusetts v. Snow, 898 F.2d 274, 279 (1st Cir.1990) ("Rather than attempt to divine the Massachusetts Legislature's intent in enacting its . . . legislation, we look instead to the effect of the regulatory scheme."). The Court now turns to that analysis.

II. ANALYSIS

In response to the energy crisis of 1973, Congress "established a major program to bring about improved motor vehicle fuel efficiency"—the EPCA. General Motors Corp. v. National Highway Traffic Safety Admin., 898 F.2d 165, 167 (D.C.Cir.1990). Pursuant to the EPCA, the Department of Transportation is charged with establishing a system of standards specifying a minimum level of average fuel economy applicable to a manufacturer in a model year. 49 U.S.C. §§ 32901(a)(6); 32902(a), 32902(c). That responsibility has been delegated to the National Highway Traffic Safety Administration ("NHTSA"), 49 C.F.R. § 1.50(f), which must weigh four factors when setting standards: "technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the United States to conserve energy." 49 U.S.C. § 32902(f). Currently, a manufacturer's fleet must average at least 27.5 miles per gallon, 49 U.S.C. § 32902(b). In 2007, Congress increased that standard to 35 miles per gallon beginning with model year 2020. See The Energy Independence and Security Act of 2007, Pub.L. No. 110-140, Title I, § 102, 121 Stat. 1492, 1499 (2007). Earlier this year, President Obama announced a new national policy "aimed at both increasing fuel economy and reducing greenhouse gas pollution for all new cars and trucks sold in the United States," which would require an average fuel economy standard of 35.5 mpg even earlier, in 2016. Press Release, The White House, President Obama Announces National Fuel Efficiency Policy (May 19, 2009). While its tool may be blunt rather than fine-tuned, there can be no doubt but that the federal government's

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concern regarding fuel efficiency is ongoing.

The EPCA expressly preempts local regulations "related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel standard under this chapter." 49 U.S.C. § 32919. The breadth of regulatory activities embodied in the term "related to" recently was addressed by the Southern District of New York in a case with facts strikingly similar to this one, Metropolitan Taxicab Board of Trade v. City of New York, No. 08 Civ. 7837(PAC), 2009 WL 1748871 (S.D.N.Y. June 22, 2009) (Crotty, J.). There, in an admitted effort to reduce greenhouse gases and improve air quality, New York City promulgated two sets of regulations pertaining to taxicabs, both of which eventually were preliminarily enjoined by the court. The first set of regulations required all new taxicabs to satisfy a minimum mile-per-gallon rating by a certain date. Metropolitan Taxicab Bd. Of Trade v. City of New York, No. 08 Civ. 7838(PAC), 2008 WL 4866021, at *1 (S.D.N.Y. Oct. 31, 2008) (Crotty, J.). As the court explained, while the regulations did not require that new taxis have hybrid engines, "the effect of the minimum mpg standard [was] that only cars with hybrid engines or clean diesel engines [could] meet the mileage standard requirement." Id. at *2. The court concluded that the plaintiffs were likely to show that the regulations were preempted by the EPCA because "the rules set standards that relate to an average number of miles that New York City taxicabs must travel per gallon of gasoline." Id. at *9.

The court, relying on the Supreme Court's decision in Engine Manufacturers Association v. South Coast Air Quality Management District, 541 U.S. 246, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004), concluded that in order for a state law to be "related to" federal fuel economy standards, it need not "actually interfere" with them. Allowing one municipality to affect fuel economy standards, the court observed, could have an unwanted aggregate affect if other states or municipalities followed suit. 2008 WL 4866021, at *10. The Harvard Law Review recently opined that the decision was "probably...

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2 practice notes
  • Legal Tools for Achieving Low Traffic Zones
    • United States
    • Environmental Law Reporter Nbr. 50-4, April 2020
    • April 1, 2020
    ...Bd. of Trade v. City of New York, No. 08 Civ. 7837 (PAC), 2008 WL 4866021 (S.D.N.Y. Oct. 31, 2008) ( Metropolitan Taxicab I ). 43. 647 F. Supp. 2d 86, 88 (D. Mass. 2009). 44. Id . 50 ELR 10332 ENVIRONMENTAL LAW REPORTER 4-2020 Copyright © 2020 Environmental Law Institute®, Washington, DC. R......
  • Minimizing Constitutional Risk in State Energy Policy: A Survey of the State of the Law
    • United States
    • Environmental Law Reporter Nbr. 45-5, May 2015
    • May 1, 2015
    ...2008). 176. Metropolitan Taxicab Bd. of Trade v. City of New York, 2008 WL 4866021 (S.D.N.Y. 2008); see also Ophir v. City of Boston, 647 F. Supp. 2d 86 (D. Mass. 2009), Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist., Copyright © 2015 Environmental Law Institute®, Washington, DC.......
2 books & journal articles
  • Legal Tools for Achieving Low Traffic Zones
    • United States
    • Environmental Law Reporter Nbr. 50-4, April 2020
    • April 1, 2020
    ...Bd. of Trade v. City of New York, No. 08 Civ. 7837 (PAC), 2008 WL 4866021 (S.D.N.Y. Oct. 31, 2008) ( Metropolitan Taxicab I ). 43. 647 F. Supp. 2d 86, 88 (D. Mass. 2009). 44. Id . 50 ELR 10332 ENVIRONMENTAL LAW REPORTER 4-2020 Copyright © 2020 Environmental Law Institute®, Washington, DC. R......
  • Minimizing Constitutional Risk in State Energy Policy: A Survey of the State of the Law
    • United States
    • Environmental Law Reporter Nbr. 45-5, May 2015
    • May 1, 2015
    ...2008). 176. Metropolitan Taxicab Bd. of Trade v. City of New York, 2008 WL 4866021 (S.D.N.Y. 2008); see also Ophir v. City of Boston, 647 F. Supp. 2d 86 (D. Mass. 2009), Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt. Dist., Copyright © 2015 Environmental Law Institute®, Washington, DC.......

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