The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
Plaintiffs, fifteen corporations owning and operating licensed taxicabs in New York City, move under Rule 65, Fed. R. Civ. P., for a preliminary injunction against enforcement of a New York City ordinance requiring exhaust emission controls for licensed taxicabs. Defendants cross-move under Rule 12(b)(c), Fed. R. Civ. P., for dismissal of the action for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted, or, in the alternative, for judgment on the pleadings.
The action seeks a declaratory judgment that the challenged ordinance
is null and void insofar as it sets exhaust emission controls for licensed taxicabs.
The ordinance requires licensed taxicabs to use gasoline containing no more than specified low levels of lead and to use only non-leaded gasoline after January 1, 1974. The ordinance also requires pre-1970 taxicabs to be equipped with emission control devices which comply with 1970 federal standards and later models to be equipped with such emission control devices as may be specified by the New York City Taxi and Limousine Commission.
A preliminary injunction is an extraordinary remedy and should be granted only where the applicant shows a strong likelihood of ultimate success on the merits and irreparable injury unless such relief is granted, or where the applicant makes a limited showing of probable success but raises substantial issues requiring further inquiry and shows that the harm to him outweighs the injury to others if the relief is denied.
Plaintiffs' claim of ultimate success on the merits depends on the validity of their contention that the ordinance is null and void because the field of motor vehicle emission control has been preempted by the federal Clean Air Act
and on the soundness of their argument that the ordinance is unconstitutional because it denies plaintiffs equal protection of the law.
A local ordinance will be upheld against a claim of preemption unless there is such an actual conflict between the local and federal regulatory schemes that both cannot stand in the same area or unless there is clear evidence of congressional intent to preempt the field. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963).
Plaintiffs rely upon two sections of the Clean Air Act, which, they claim, show a clear congressional intent to preempt the regulation of automobile exhaust emissions.
The first preemption section, urged by plaintiffs, prohibits states or their subdivisions from regulating fuel and fuel additives if the federal administrator has found that no control is necessary or has already prescribed standards. 42 U.S.C. § 1857f-6c(c)(4). Since plaintiffs neither show nor contend that either condition has been fulfilled here, we see no conflict at present between the City's regulation of the lead content of gasoline and this preemption section.
The second preemption section, upon which plaintiffs rely, prohibits states or their subdivisions from creating standards for exhaust emission control devices for new motor vehicles and new motor vehicle engines. It also prohibits states from setting standards of approval as conditions precedent to the initial sale or registration of new motor vehicles. 42 U.S.C. § 1857f-6a.
Where exercise of the local police power serves the purpose of a federal Act, the preemptive effect of that Act should be narrowly construed. Chrysler Corp. v. Tofany, 419 F.2d 499 (2d Cir. 1969). We think the purpose of the federal Act is served by the challenged ordinance. Surely, New York City has the power at least to try to clean the very air that people breathe. Plainly, that is the purpose of the ordinance, and it is clearly compatible with the goal of the federal Clean Air Act. Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960). Moreover, both the history and text of the Act show that the second preemption section was made not to hamstring localities in their fight against air pollution but to prevent the burden on interstate commerce which would result if, instead of uniform standards, every state and locality were left free to impose different standards for exhaust emission control devices for the manufacture and sale of new cars.
Thus, the second preemption section restricts states and localities from setting their own standards for new motor vehicles, which are defined as motor vehicles "the equitable or legal title to which . . . [have] never been transferred to an ultimate purchaser."
The statutory definition reveals a clear congressional intent to preclude states and localities from setting their own exhaust emission control standards only with respect to the manufacture and distribution of new automobiles. That narrow purpose is further suggested by the remainder of the section, which prohibits states and localities from setting standards governing emission control devices before the initial sale or registration of an automobile. Finally, congress specifically refused to interfere with local regulation of the use or movement of motor vehicles after they have reached their ultimate purchasers.
We do not say that a state or locality is free to impose its own emission control standards the moment after a new car is bought and registered. That would be an obvious circumvention of the Clean Air Act and would defeat the congressional purpose of preventing obstruction to interstate commerce. The preemption sections, however, do not preclude a state or locality from imposing its own exhaust emission control standards upon the resale or reregistration of the automobile. Nor do they preclude a locality from setting its own standards for the licensing of vehicles for commercial use within that locality. Such regulations would cause only minimal interference with interstate commerce, since they would be directed primarily to intrastate activities and the burden of compliance would be on individual owners and not on manufacturers and distributors.
The challenged ordinance would, at most, require taxicab owners, seeking a license to operate in the City, to meet at their own expense emission control standards established by the Taxi and Limousine Commission.
Such a requirement is fully supported by the congressional call for local cooperation toward the prevention and control of air pollution.