ASSOCIATION OF TAXICAB OPERATORS, USA V. CITY OF DALLAS: A POSSIBLE GREEN LIGHT AHEAD FOR “HEAD- OF-THE-LINE” POLICIES FAVORING NATURAL GAS VEHICLES Christian H. Pedersen* INTRODUCTION In a move that almost seems borrowed from a board game, municipalities across the country are enacting rules that allow taxicabs equipped to run on natural gas to cut in line at airport queues ahead of their gasoline- and diesel-powered counterparts.1 The justification is mainly grounded in environmental policy—natural gas vehicles (NGVs) are a lot cleaner than gasoline and diesel vehicles and thus improve air quality.2 Others, however, also tout the national security and job-creation benefits to be gained from policies encouraging use of a domestic-fuel source like natural gas.3 In theory, it is a “win-win”: Citizens receive cleaner air, the country reduces its dependence on foreign oil, and the private sector (in this case, taxi companies) is incentivized to invest in cleaner vehicles. Not everyone sees it that way. In fact, these programs have some folks fuming mad.4 * The author is a graduate of Vermont Law School (J.D., 1999) and presently serves as an executive and legal counsel with The Kirk Family of Companies in Findlay, Ohio. His corporate affiliation includes Kirk Energy Group, LLC, a company co-founded by the author that promotes the use of natural gas as a vehicle fuel. 1. See, e.g., Dallas, Tex., Ordinance 27831 (Mar. 10, 2010) [hereinafter Ordinance], available at www.ci.dallas.tx.us/cso/resolutions/2010/03-10-10/10-0729.PDF (establishing head-of-line privilege for taxis at Dallas Love Field Airport); Chicago Launches CNG Airport Taxicab Fast Lane, MEMBER NEWSL. (Nat. Gas Vehicles for Am., Washington, DC), Aug. 26, 2011 (discussing head-of-line privilege for taxis at Chicago-area airports); S.F. INT’L AIRPORT, FACT SHEET: SFO’S CLEAN VEHICLE POLICY: 10TH ANNIVERSARY 2000–2010, at 1 (2010), available at ttp://www.flysfo.com/web/export/sites/ default/ download/about/news/pressres/fact-sheet/pdf/CleanVehiclePolicy.pdf (discussing head-of-line privilege for taxis at San Francisco Airport); Roger Yu, Airport Check-in: Dallas/Fort Worth and Green Taxis, USA TODAY, Jan. 25, 2010, http://www.usatoday.com/travel/flights/2010-01-24-dallas-airport- green-taxis_N.htm (discussing head-of-line privilege for taxis at Dallas/Fort Worth International Airport); Press Release, Massachusetts Port Authority Along with the City of Boston Announce First Cab Incentive Program to Encourage the Use of Hybrid and Alternative Fuel Vehicles (Apr. 23, 2007), available at http://www.massport.com/news-room/News/MassachusettsPortAuthorityAnnounceFirstCabIncentiveProg ram.aspx (discussing head-of-line privilege for taxis at Boston’s Logan Airport). 2. Ordinance, supra note 1, at 2. 3. See, e.g., The Plan, PICKENSPLAN, http://www.pickensplan.com/theplan2/ (last visited Apr. 20, 2012) (advocating for energy independence from foreign oil sources). 4. See Wade Goodwyn, Dallas Policy May Drive Some Taxis off the Road, VT. PUB. RADIO (Feb. 3, 2011), http://www.vpr.net/npr/133462224/ (describing the protest of 200 Dallas taxicab drivers due to the new front-of-line policy for cabs running on natural gas); Richard Abshire, Cabbies Arrested After Protests over Rule Letting Natural-Gas Cabs to Cut in Line at Love Field, DALLAS MORNING 996 Vermont Law Review [Vol. 36:995 For example, shortly after a so-called “head-of-the-line” ordinance was instituted at Dallas’s Love Field Airport, an association of taxicab drivers filed suit to enjoin its enforcement by asserting (somewhat ironically) that it was preempted by the Clean Air Act (CAA).5 More specifically, the plaintiff argues that the ordinance amounts to a “standard relating to the control of emissions” and is, therefore, subject to preemption under section 209(a) of the CAA.6 Plaintiff sought relief in the form of a declaratory judgment and an injunction.7 The case remains pending in the U.S. District Court for the Northern District of Texas, but preliminary rulings by the court, namely the denial of plaintiff’s request for preliminary injunction, suggest that state and local policies incentivizing the use of NGVs will survive a preemption challenge.8 As discussed infra, however, municipalities must still be wary of going too far and risk having the incentive construed as a mandate. This Comment takes the position that at the state and local level, incentive-based programs favoring NGVs play an important role in tackling mobile-source air pollution as well as overall national energy policy. This is particularly true now, as the federal government seems hampered from taking a leadership role on the environment given concerns over the economy.9 NEWS, Jan. 31, 2011, http://www.dallasnews.com/news/local-news/20110131-cabbies-arrested-after- protests-over-rule-letting-natural-gas-cabs-to-cut-in-line-at-love-field-.ece (reporting eight cab drivers arrested in Dallas after protesting a local city ordinance giving order preference to natural-gas-powered cabs); Kassi Schmitt, Dallas Cab Drivers Again Protest Rule Favoring Natural Gas Fueled Taxis, DALLAS MORNING NEWS, Oct. 4, 2010, http://www.dallasnews.com/news/community-news/dallas/head lines/20101004-Dallas-cab-drivers-again-protest-Love-3246.ece (discussing Dallas-area cab drivers’ negative reaction to giving preference to taxis powered by natural gas); Patrick Michels, Fare Is Fare: Cab Drivers Cry Foul Over Special Privileges for Natural Gas Taxis at Love Field, DALLAS OBSERVER BLOGS (Sept. 15, 2010, 11:32 AM), http://blogs.dallasobserver.com/unfairpark/2010/09/fare_is_ fare_cab_drivers_cry_f.php (describing independent cab drivers’ distaste for the new front-of-line policy at Love Field Airport). 5. Verified Complaint at 1–2, Ass’n of Taxicab Operators, USA v. City of Dallas, 760 F. Supp. 2d 693 (N.D. Tex. 2010) (No. 3:10-cv-769-K). 6. Id. at 7–8 (quoting 42 U.S.C. § 7543(a) (2006)). 7. Id. at 9. 8. See Ass’n of Taxicab Operators, 760 F. Supp. 2d at 694–701 (denying a preliminary injunction due to a failure to demonstrate that the Ordinance was preempted by federal law). Since submitting this Comment for publication, the court took up a motion for final summary judgment filed by the defendant, City of Dallas. Noting how no knew arguments were raised since the denial of plaintiff’s injunction, the court granted the defendant’s motion and separately entered judgment in defendant’s favor. See Ass’n of Taxicab Operators, USA v. City of Dallas, No. 3:10-cv-769-K, 2012 WL 1033511, at *1, *3 (N.D. Tex. Mar. 28, 2012) (“Because no genuine issue of material fact exists as to the lack of preemption of the Ordinance by the Clean Air Act, the City’s Motion for Final Summary Judgment is hereby GRANTED.”) 9. See Steve Hargreaves, Obama Backs Off Tough Clean Air Regulation, CNN MONEY (Sept. 2, 2011, 3:49 PM), http://money.cnn.com/2011/09/02/news/economy/regulations/ (discussing Obama’s decision to cut back on environmental regulations for the economy’s benefit); Albert Hunt, Saying 2012] A Possible Green Light 997 I. A BRIEF OVERVIEW OF NGVs A. The Technology A bi-fueled Ford Transit Connect converted to run on CNG and gasoline. Photo courtesy of Kirk Energy Group, LLC. Goodbye to the Dysfunctional Senate, N.Y. TIMES, Mar. 18, 2012, http://www.nytimes.com/2012/ 03/19/us/19ihtletter19.html?_r=1&scp=1&sq=dysfunctional%20congress&st=cse (discussing a retiring senator’s view of the Senate as “dysfunctional” with no consensus on fiscal issues); Michael Shear, Is Bipartisanship Back? Don’t Count on It, N.Y. TIMES: THE CAUCUS (Mar. 1, 2012, 7:38 AM), http://thecaucus.blogs.nytimes.com/2012/03/01/is-bipartisanship-back-dont-count-on-it/ (discussing the frosty relationship between the White House and Republicans on Capitol Hill); Bryan Walsh, Battle Brews Over EPA’s Emissions Regulations, TIME (Jan. 3, 2011), www.time.com/time/health/ article/0,8599,2040485,00.html (discussing political reactions to new EPA regulations of greenhouse- gas emissions); Jonathan Weisman, Candidates Run Against Regulation, WALL ST. J., June 14, 2011, http://online.wsj.com/article/SB10001424052702303848104576384391491555226.html (highlighting the elimination of federal environmental regulations as a campaign issue in the 2012 Republican presidential debates). 998 Vermont Law Review [Vol. 36:995 Natural gas has been used as a transportation fuel for vehicles since the 1930s.10 While more prevalent in Europe and the Middle East, there are about 112,000 NGVs presently operating on U.S. highways.11 Worldwide, the total approaches thirteen million.12 To be considered an NGV, a vehicle must be equipped to run on either compressed natural gas (CNG) or liquefied natural gas (LNG).13 CNG is a gaseous fuel stored typically in a tank at a pressure of 3,000 to 3,600 pounds per square inch.14 LNG is cryogenic fuel stored in special insulated tanks at a temperature of -260°F.15 When used as a vehicle fuel, natural gas is sold in units of gasoline- or diesel-gallon equivalents based on the energy content of a gallon of gasoline or diesel fuel.16 Both CNG and LNG are considered alternative fuels under the Energy Policy Act of 1992.17 In the case of light-duty vehicles, which are the scope of this Comment, the NGVs involve either a bi-fuel or dedicated system.18 A bi- fueled NGV can operate on either natural gas or gasoline.19 A dedicated NGV is one that operates solely on natural gas.20 Nearly all light-duty NGVs rely upon the use of aftermarket- conversion systems.21 Aftermarket-conversion systems that are sold in the United States and are intended for use in on-road vehicles must be certified or approved by the Environmental Protection Agency (EPA) and the 10.