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CNG Cabs Can Cut Line at Love Field: 5th Cir

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By Brett Snider, Esq. on June 17, 2013 3:57 PM

The Fifth Circuit gave the O.K. to a Dallas ordinance which allows CNG-fueled cabs to move to the head of the line when picking up passenger’s from the city’s Love Field Airport.

The Court’s decision on Thursday in Association of Taxicab Operators USA v. City of Dallas comes as a big win for cities incentivizing compressed natural gas (CNG) vehicles, which operate with lower emissions than gasoline powered vehicles.

The Fifth Circuit opined that this law is not preempted by the federal law, particularly the Clean Air Act.

Dallas' CNG Cab Ordinance

Dallas passed Ordinance 27831 in March 2010, and the municipal law allows "head-of-the-line" privileges for CNG taxis that are operating at Love Field Airport, one of Southwest Airline's major hubs.

CNG cabs are issued a sticker which denotes their special status, and the ordinance creates a criminal penalty of $500 for violating any of its provision. The Association of Taxicab Operators USA (ATO) sued almost immediately after the law came into effect, claiming that Ordinance 27831 was preempted by the Clean Air Act.

Federal Pre-emption

The lynchpin of ATO's argument is that the Dallas ordinance is a "standard relating to the control of emissions" pursuant to the Clean Air Act, and the Court should give full deference to Congress' intent in the express pre-emption clause.

However, the court acknowledges that when preemption clauses are ambiguous, courts can accept a "reading that disfavors pre-emption."

Despite giving a sizeable advantage for cleaner CNG cabs to pick up airport passengers, the Fifth Circuit acknowledged that this is by no means an environmental standard requiring cabs to convert to CNG or to regulate their emissions, it is merely a "compelling offer."

Incentives Are Not Standards Per Se

ATO v. City of Dallas illuminates a decent point; a city can offer economic incentives to push policy goals without enacting de facto regulation.

Despite ATO's claims that Dallas' ordinance is an economic hardship forcing everyone to drive a CNG cab, cities like Chicago have experienced cab drivers still moving away from CNG vehicles despite similar city programs supporting their use, reports Chicago Dispatcher.

So why not allow an incentive program? Those distrustful of its merits can let the invisible hand of the market sort out whether taxi drivers are truly crippled by offering cleaner cabs a small shortcut.

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