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Case 1:08-cv-07837-PAC Document 51 Filed 10/31/2008 Page 12 of 26 circumstances, Plaintiffs’ delay in bringing this action for injunction does not suggest a lack of urgency or bar them from relief. Plaintiffs have shown that they are likely to suffer irreparable harm from enforcement of the 25/30 Rules because they will incur costs to comply with the regulations which they cannot recover in an action pursuant to 42 U.S.C. § 1983. The Court now turns to whether Plaintiffs have shown a likelihood of success on the merits. IV. Likelihood of Success on the Merits Plaintiffs argue that they are likely to succeed on the merits because the 25/30 Rules are preempted by federal law. Before conducting a preemption analysis, the Court notes that it does not consider the question of whether hybrid vehicles are safe for operation as taxicabs. It does not consider the affidavits or reports from Plaintiffs’ engineer C. Bruce Gambardella or Defendants’ rebuttal report from Ricardo Inc. (See Saylor Decl. Ex. B; Declaration of Ramin Pejan (“Pejan Decl.”) Ex. 1.) Those matters are better suited to the Article 78 claim, which, as previously indicated, the Court does not consider. While Plaintiffs seem to place emphasis on the TLC’s motivation for its actions up to and including the adoption of the fuel economy standards in December 2007, the Court does not rely upon or give any weight to those arguments. Instead, the Court focuses on the words of the TLC’s regulation and analyzes whether the regulation, as written, is preempted by federal law. The Supremacy Clause, U.S. Const. art. VI, cl. 2, “invalidates state laws that interfere with, or are contrary to, federal law.” Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985) (internal quotation omitted). “State action may be foreclosed by express language in a congressional enactment, by implication from the depth and breadth of a congressional scheme that occupies the legislative field, or by implication because of a conflict 12
Case 1:08-cv-07837-PAC Document 51 Filed 10/31/2008 Page 13 of 26 with a congressional enactment.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001) (internal citations omitted). Conflict preemption exists either when “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). There is a general presumption against preemption; thus, “a state’s police powers are not displaced by federal law unless there is compelling evidence that this was the manifest aim of Congress.” Environmental Encapsulating Corp. v. City of New York, 855 F.2d 48, 58 (2d Cir. 1988). In every preemption case, “the purpose of Congress is the ultimate touch-stone” in determining the scope of a preemption statute. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485-86 (1996). Actions taken by a state or political subdivision may not be preempted in some circumstances where the state acts as a market participant, rather than as a market regulator. See Bldg. & Constr. Trades Council v. Associated Builders and Contractors, Inc., 507 U.S. 210, 227 (1993) (“Boston Harbor”) (“Our decisions in this area support the distinction between government as regulator and government as proprietor.”) The Court in Boston Harbor described the distinction between when the state acts as a regulator and when the state acts as a participant. Id. at 229 (“When the State acts as a regulator, it performs a role that is characteristically a governmental rather than a private role . . . These distinctions are far less significant when the State acts as a market participant with no interest in setting policy.”). The market participant doctrine is an extension of a principle from the Commerce Clause, under which a state may favor its own citizens over others when the state is an active participant in the relevant market. See e.g., Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 810 (1976). The market participant 13
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