R. Mayer of Atlanta, Inc. v. City of Atlanta , 158 F.3d 538 ( 1998 )

United States Court of Appeals,
Eleventh Circuit.
No. 97-9174.
R. MAYER OF ATLANTA, INC., Tony N. Upchurch, d.b.a. Chuck's Truck, et al., Plaintiffs-
Appellants,
v.
CITY OF ATLANTA, Georgia, Eldrin Bell, Individually and in his official capacity as Director
of Public Safety for the City of Atlanta, et al., Defendants-Appellees.
Oct. 23, 1998.
Appeal from the United States District Court for the Northern District of Georgia. (No. 1:92-CV-
658-ODE), Orinda D. Evans, Judge.
Before EDMONDSON and BIRCH, Circuit Judges, and STAFFORD*, District Judge.
BIRCH, Circuit Judge:
In this appeal, we determine, as a matter of first impression, whether the Interstate
Commerce Act ("ICA") preempts a municipal ordinance regulating the provision of consensual
towing services. On summary judgment, the district court ruled that, because consensual towing
services do not fall within the scope of the ICA's preemption provision, the municipal ordinance is
valid. For the reasons set forth below, we conclude that the ICA expressly preempts municipal
ordinances that regulate consensual towing, and that the ICA does not exempt municipal ordinances
that address safety and insurance requirements. We therefore vacate the district court's order and
remand for further proceedings.
I. BACKGROUND
*
Honorable William Stafford, Senior U.S. District Judge for the Northern District of Florida,
sitting by designation.
Appellants (collectively, the "Towing Companies") are the owners and operators of five
towing and recovery companies located outside the municipal boundaries of the City of Atlanta.
The Towing Companies provide towing services within the Atlanta municipal limits.
In 1977, the Atlanta City Council adopted several ordinances governing the provision of
towing services within city limits. One ordinance in particular makes it unlawful for "any person
... to use or operate upon any of the streets of the city a wrecker ... without having obtained a license
granted by the mayor as provided in this section." City of Atlanta Code of Ordinances § 162-
223(a).1 In order to obtain a license from the mayor, an applicant must provide: (a) his name and
address; (b) his place of business; (c) the nature and character of his business; (d) the names of his
partners, if any; (e) the names of all officers, if the applicant is a corporation; (f) a list of the
charges to be imposed for the towing services to be provided by the applicant; (g) a description of
the type and amount of insurance held by the applicant; and (h) such other information as required
by the police or the license review board. Id. § 162-223(b). The same ordinance also makes it
unlawful for "any person ... to use or to operate upon any of the streets of the city any wrecker
without having first filed a registration of all these vehicles with the department of police." Id. §
162-223(c). In order to be registered with the police, an applicant must provide: (a) the make,
model and manufacturer's number of the towing vehicle; (b) the date the vehicle was put into use
as a wrecker; (c) the driver's license numbers of those who will operate the vehicle; (d) the names
of insurance companies providing liability coverage for the vehicle; (e) the permit number of each
1
In 1995, the City Council made minor stylistic alterations to, and renumbered the code
section of, the ordinance at issue in this case. R3-54 Exs. A & B. Although the conduct
underlying the Towing Companies' claims occurred prior to the renumbering of the code
sections, we will refer to the current section of the code in order to minimize confusion.
2
person who will operate the vehicle; and (f) such other information that may be required by the
mayor or the mayor's designee. Id.
Between October 26, 1990, and May 18, 1992, Atlanta law enforcement officers issued
citations to the Towing Companies because they operated tow trucks within the city limits without
obtaining the permits required by § 126-223(a) and without registering with the police as required
by § 126-223(c). R3-54 Exs. C, D, E, & F. All of the citations involved "consensual tows," which
occur when the owner of a vehicle expressly requests towing services to be provided by a specific
towing company and enters a private contract with the towing company for the services.2 All but
one of the citations resulted in convictions, requiring the Towing Companies to pay $276 each in
fines.
In March 1992, the Towing Companies initiated this action in federal court, seeking
declaratory and injunctive relief to bar further enforcement of Atlanta's towing ordinances. The
Towing Companies also claimed compensatory damages related to their convictions.
On August 23, 1994, Congress enacted the Federal Aviation Administration Authorization
Act of 1994 ("FAAA Act"), which became codified as part of the ICA effective January 1, 1995.
P.L. No. 103-305, 108 Stat. 1569, 1607 (1994). Section 601 of the FAAA Act amended the ICA to
preempt a wide range of state and local statutes and regulations governing intrastate motor carriage.
Section 601 created a "general rule" that:
2
"Nonconsensual" towing services occur when law enforcement or other local authorities
determine that a vehicle must be towed and the owner of the vehicle is not afforded the
opportunity to request towing services from a specific company. An example of a
nonconsensual tow arises when an abandoned car is impounded by police.
3
a State, [or] a political subdivision of a State ... may not enact or enforce a law, regulation,
or other provision having the force and effect of law related to a price, route, or service of
any motor carrier ... with respect to the transportation of property.
49 U.S.C.A. § 11501(h) (1995).3 The FAAA Act also created exceptions to the general preemption
rule to authorize state regulations that, among other things, regulate safety, impose highway route
controls, limit the size and weight of a motor vehicle or the hazardous nature of its cargo, and
require mandatory levels of insurance. 49 U.S.C.A. § 11501(h)(2) & (3) (1995). None of the
exceptions, however, concerned towing services.
On December 29, 1995, Congress passed the Interstate Commerce Commission Termination
Act ("ICCTA") of 1995, which took effect on January 1, 1996. P.L. No. 104-88, 109 Stat. 803, 804.
Section 103 of the ICCTA recodified former § 11501(h) as 49 U.S.C. § 14501(c)(1) without altering
the provision's "general rule" preempting the state and local regulation of prices, routes, and services
provided by motor carriers that transport property. Id., 109 Stat. at 899. The ICCTA, however,
added a new exception to the general rule created by § 14501(c)(1):
[Section 14501(c)(1) ] does not apply to the authority of a State or a political subdivision of
a State to enact or enforce a law, regulation, or other provision relating to the price of
for-hire motor vehicle transportation by a tow truck, if such transportation is performed
without the prior consent or authorization of the owner or operator of the motor vehicle.
49 U.S.C. § 14501(c)(2)(C).
Relying upon these additions to the ICA's preemption provision, the Towing Companies
argued that, although municipalities validly may regulate the prices charged for "nonconsensual"
towing services, the regulation of consensual towing services is expressly preempted by §
3
As described below, this provision now is codified at 49 U.S.C. § 14501(c)(1).
4
14501(c)(2)(C). The district court rejected this argument, concluding that Atlanta's towing
ordinance passes muster under the Supremacy Clause. The Towing Companies appeal this ruling.4
II. DISCUSSION
When reviewing a district court's analysis of a claim that federal law preempts state law, we
apply the same legal standards that the district court applied in its order awarding summary
judgment. Lewis v. Brunswick Corp., 107 F.3d 1494, 1498 (11th Cir.1997), cert. granted, --- U.S.
----, 118 S.Ct. 439, 139 L.Ed.2d 337 (1997), cert. dismissed, --- U.S. ----, 118 S.Ct. 1793, 140
L.Ed.2d 933 (1998). We therefore review the district court's decision de novo. Id.A. PREEMPTION PRINCIPLES
The Supremacy Clause of the United States Constitution provides that the laws of the United
States "shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Thus, state law that conflicts with
federal law is "without effect." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608,
2617, 120 L.Ed.2d 407 (1992). Although at issue here is the validity of a municipal ordinance,
rather than a state statute, "for the purposes of the Supremacy Clause, the constitutionality of local
ordinances is analyzed in the same way as that of statewide laws." Wisconsin Pub. Intervenor v.
Mortier, 501 U.S. 597, 605, 111 S.Ct. 2476, 2482, 115 L.Ed.2d 532 (1991) (quoting Hillsborough
4
In their Complaint, the Towing Companies claimed that the towing ordinance (a) violates the
Commerce and Due Process Clauses of the United States Constitution, (b) is preempted by state
law, and (c) tortiously interfered with the Towing Companies' contracts. The Towing
Companies raised their federal preemption claim in the context of the parties' cross-motions for
summary judgment. In addition to the dismissal of their federal preemption claim, the Towing
Companies also appeal the dismissal of their Commerce Clause and due process claims.
Because we find the federal preemption claim to be dispositive, we need not consider the
Commerce Clause and due process claims raised on appeal.
5
County v. Automated Medical Labs., Inc., 471 U.S. 707, 712-14, 105 S.Ct. 2371, 2375, 85 L.Ed.2d
714 (1985)).
Statutes and regulations established under the historic police powers of the states are not
superseded by federal law unless preemption is the clear and manifest purpose of Congress. Lewis,
107 F.3d at 1500. Whether a federal statute preempts state law is "a question of congressional
intent." Irving v. Mazda Motor Corp., 136 F.3d 764, 767 (11th Cir.1998) (internal quotation marks
omitted).
Federal law preempts state and local laws in three distinct ways: (1) "express preemption,"
in which Congress defines explicitly the extent to which a federal statute preempts state law; (2)
"field preemption," in which state law is preempted because "Congress has regulated a field so
pervasively, or federal law touches on a field implicating such a dominant federal interest, that an
intent for federal law to occupy the field exclusively may be inferred;" and (3) "conflict
preemption," in which state law "is preempted by implication because state and federal law actually
conflict, so that it is impossible to comply with both, or state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress." Lewis, 107 F.3d
at 1500 (internal quotation and citation omitted).
Here, the Towing Companies limit their arguments to express preemption, which is a wise
choice. No comprehensive federal regulatory scheme purports to regulate vehicle towing, and
Atlanta's towing ordinance does not conflict with, or stand as an obstacle to the accomplishment and
execution of, the full purposes and objectives of Congress. We therefore need consider only whether
federal law expressly preempts the City's towing ordinance.
B. EXPRESS PREEMPTION UNDER 49 U.S.C. § 14501(c)(1)
6
Express preemptive language may be found within the statute itself, in its legislative history,
or in regulations promulgated pursuant to the statute. Scurlock v. City of Lynn Haven, 858 F.2d
1521, 1523 (11th Cir.1988). Because the fundamental question is one of statutory intent, we begin
our analysis with the language employed by Congress and the assumption that the ordinary meaning
of the language accurately expresses the legislative purpose. Morales v. Trans World Airlines, 504
U.S. 374, 383, 112 S.Ct. 2031, 2036, 119 L.Ed.2d 157 (1992).
The preemption clause enacted in the ICCTA states:
General Rule.—Except as provided in paragraphs (2) and (3), a State, [or a] political
subdivision of a State, ... may not enact or enforce a law, regulation, or other provision
having the force and effect of law related to a price, route, or service of any motor carrier ...
with respect to the transportation of property.
49 U.S.C. § 14501(c)(1). A "motor carrier" is defined as "a person providing motor ve- hicle
transportation for compensation." 49 U.S.C.A. § 13102(12). Motor vehicle transportation by a tow
truck for the compensation of the tow truck company, which is at issue in this case, places the
towing companies within the definition of a "motor carrier." Consequently, under the plain, ordinary
meaning of the terms used in § 14501(c)(1), the federal statute expressly preempts state and
municipal ordinances that regulate the prices, routes, or services provided by towing companies.
This conclusion is strengthened by Congress' addition of a limited exemption to §
14501(c)(1)'s preemptive scope for nonconsensual towing services. Section 14501(c)(2)(C) states
that section 14501(c)(1) does not apply to the authority of a state or a political subdivision to enact
or enforce an ordinance relating to the price of towing services "if such transportation is performed
without the prior consent or authorization of the owner or operator of the motor vehicle." §
14501(c)(2)(C). If Congress had not intended for § 14501(c)(1) to preempt state and local regulation
of towing services generally, Congress would not have included an express exemption that applies
7
solely to the prices charged for nonconsensual towing services. Cf. United States v. Smith, 499 U.S.
160, 167, 111 S.Ct. 1180, 1185, 113 L.Ed.2d 134 (1991) ("Where Congress explicitly enumerates
certain exceptions to a general prohibition, additional exceptions are not to be implied, in the
absence of evidence of a contrary legislative intent.") (internal quotation and citation omitted). By
including an express exemption for the regulation of prices for nonconsensual towing services,
Congress has evinced its intent that all aspects of consensual towing services remain subject to the
general rule set forth in the preemption clause.
Defendants-Appellees (the "City Defendants") argue that this interpretation of Congress'
preemptive intent is inconsistent with 49 U.S.C. § 13506(b), which lists several narrowly defined
exceptions to the ICA's general grant of jurisdiction to the Secretary of Transportation and the
Surface Transportation Board. Section 13506(b) provides that:
[e]xcept to the extent the Secretary or Board, as applicable, finds it necessary to exercise
jurisdiction to carry out the transportation policy of section 13101, neither the Secretary nor
the Board has jurisdiction under this part over-
(1) transportation provided entirely in a municipality ... [or]
(3) the emergency towing of an accidentally wrecked or disabled motor vehicle.
§ 13506(b)(1) & (3). According to the City Defendants, the sections quoted above limit the
preemptive effect of § 14501(c)(1) to the extent that Atlanta's towing ordinance regulates
transportation that is (a) provided entirely within city limits or (b) related to the emergency towing
of disabled vehicles.
Although several courts have adopted the City Defendants' argument, these courts rendered
their decisions prior to the effective date of the ICCTA in 1996. See Interstate Towing Ass'n, Inc.
v. City of Cincinnati, 6 F.3d 1154, 1158 n. 4 (6th Cir.1993) (interpreting § 13506(b) and § 11501(h),
8
which did not contain the exemption for nonconsensual towing, to reflect an intent not to preempt
local towing ordinances); Giddens v. City of Shreveport, 901 F.Supp. 1170, 1183 (W.D.La.1995)
(same); 426 Bloomfield Ave. Corp. v. City of Newark, 904 F.Supp. 364, 369-70 (D.N.J.1995)
(same). Cases published after the effective date of the ICCTA have rejected this argument by
focusing attention upon the express reference to nonconsensual towing services contained in the
amended form of § 14501(c)(2)(C). See, e.g., Harris County Wrecker Owners for Equal
Opportunity v. City of Houston, 943 F.Supp. 711, 722 (S.D.Tex.1996) ("The addition of §
14501(c)(2)(C) confirms congressional intent in § 14501(c)(1) to preempt state and local towing
regulations."); Ace Auto Body & Towing, Ltd. v. City of New York, No. 96-Civ.-6547(DLC)
(S.D.N.Y. Oct. 28, 1997) ("There is little doubt that Congress has expressly preempted the intrastate
towing industry from local regulation through Section 14501(c) of Title VI."). We agree with the
reasoning of the Harris County and Ace Auto Body courts in that the express reference to towing
services in § 14501(c)(2)(C) provides conclusive evidence that Congress intended to extend the
general rule of preemption to those aspects of the towing industry that are not listed within the
exception.
Furthermore, we note that, although § 13506(b) restricts the Secretary's and the Board's
jurisdiction in several narrowly defined contexts, § 13506(b) also permits the Secretary and the
Board to exercise jurisdiction when "necessary ... to carry out the transportation policy of [49 U.S.C.
§ ] 13101." § 13506(b). The transportation policy of § 13101 is defined broadly to include the
regulation of transportation by motor carriers and the promotion of "competitive and efficient
transportation services." § 13101(a)(2). More specifically, the policy calls upon the federal
government to, among other things:
9
(a) encourage fair competition, and reasonable rates for transportation by motor carriers of
property;
(b) promote efficiency in the motor carrier transportation system ...;
(c) meet the needs of shippers, receivers, passengers, and consumers; [and]
(d) allow a variety of quality and price options to meet changing market demands and the
diverse requirements of the shipping and traveling public.
§ 13101(a)(2)(A)-(D). One of the ways in which Congress has undertaken to accomplish the policies
and goals set forth in § 13101 is by deregulating certain components of the transportation industry,
as revealed by express preemption provisions such as § 14501(c)(1). In other words, §§ 14501(c)(1)
& (2) reflect Congress' determination that state and local regulation of the towing industry-with the
narrow exception of regulations for the price of nonconsensual towing services-disturbs the
development of competitive and efficient transportation services. We therefore conclude that
enforcement of § 14501(c)(1) in the context of this case does not contravene § 13506(b), because
the exercise of jurisdiction is necessary to accomplish the policy objectives set forth in § 13101.
Even if we assume that the simultaneous application of §§ 14501(c)(1) and 13506(b) creates
an apparent inconsistency, any ambiguity regarding Congress' intent is readily resolved by
examining the ICCTA's legislative history. The House Report accompanying the proposed version
of § 14501(c)(2)(C) states that the purpose behind the amendment is to:
provide[ ] a new exemption from the preemption of State regulation of intrastate
transportation relating to the price of non-consensual tow truck services. This is only
intended to permit States or political subdivisions thereof to set maximum prices for
non-consensual tows, and is not intended to permit reregulation of any other aspect of tow
truck operations.
H.R.Rep. No. 104-311, at 119-20 (1995) (emphasis added), reprinted in 1996 U.S.C.C.A.N. 793,
831-32. Congress thus limited the exception to include only those regulations that address the prices
10
of nonconsensual towing, while leaving undisturbed the preemptive effect of the statute as it pertains
to all other aspects of the towing industry. As noted prior to the amendment's passage, "[t]he
pending legislation would restore the local authority to engage in regulating the prices charged by
tow trucks in non-consensual towing situations. Regulation of routes and services, as well as
regulation of consensual towing, would still be preempted." 141 Cong. Rec. H15602 (1995)
(statement of Rep. Rahall) (emphasis added). The legislative history thus reveals Congress' intent
to preempt any State or local ordinance that regulates the provision of consensual towing services.
For these reasons, we conclude that § 14501(c)(1) expressly preempts municipal ordinances
that are "related to" the price, route, or provision of consensual towing services. Section 162-223(a)-
(c) of Atlanta's Municipal Code is "related to"5 the provision of consensual towing services because
the ordinance limits who is permitted to provide the services and requires that individuals and
companies satisfy various criteria before they provide the services. Section 162-223(a)-(c) therefore
is preempted under § 14501(c)(1).
C. EXCEPTIONS TO 49 U.S.C. § 14501(c)(1)
The City Defendants argue that, even if §§ 162-223(a)-(c) are preempted under §
14501(c)(1), the ordinances nonetheless are valid under an exception designed to allow states to
5
Congress used identical language in a similar provision found in the Airline Deregulation
Act of 1978, now codified at 49 U.S.C. § 41713(b), and expressed an intent that § 14501(c)(1)
and § 41713(b) "function in the exact same manner with respect to [their] preemptive effects."
H.R. Conf. Rep. No. 103-677, at 85 (1994), reprinted in 1994 U.S.C.C.A.N. 1715, 1757. In
Morales v. Trans World Airlines, Incorporated, 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157(1992), the Supreme Court held that the "related to" language contained in § 41713(b) results in
preemption of any state or local law that has a "connection with or reference to" airline rates,
routes, or services. 504 U.S. at 384, 112 S.Ct. at 2037 (applying 49 U.S.C. § 1305(a), the
precursor to § 41713(b)). Consequently, § 14501(c)(1) preempts the state or municipal
ordinance to the extent that the ordinance has a "connection with or reference to" the price,
routes, or provision of consensual towing services.
11
regulate motor vehicle safety and to enact minimum insurance requirements. Section
14501(c)(2)(A) excepts from the preemptive scope of § 14501(c)(1) "the safety regulatory authority
of a State with respect to motor vehicles" and "the authority of a State to regulate motor carriers with
regard to minimum amounts of financial responsibility relating to insurance requirements and
self-insurance authorization." § 14501(c)(2)(A). The exception thus authorizes a "State" to enact
safety and insurance-related regulations, but is conspicuously silent regarding the authority of a
municipality or any other political subdivision of a state to enact such regulations. The Act itself
defines the term "State" to "mean[ ] the 50 States of the United States and the District of Columbia,"
and therefore provides no justification for reading the term "State" to include its political
subdivisions. 49 U.S.C. § 13102(18). To support their argument, the City Defendants rely on
Harris County, in which the court construed § 14501(c)(2)(A) to permit a municipality to enact
safety regulations if the state expressly has delegated its regulatory authority to its political
subdivisions. Harris County, 943 F.Supp. at 726-27; see also AJ's Wrecker Serv., Inc. v. City of
Dallas, Nos. Civ. A. 3:97-CV1311D, Civ. A. 3:97-CV-2398D (N.D.Tex. April 15, 1998) (construing
§ 14501(c)(2)(A) in the same manner as Harris County ).
We are unpersuaded by this argument for four reasons. First, the argument ignores the
presumption that, when Congress omits certain language in a particular subsection of a statute and
includes the language in other subsections, the omission is intentional rather than accidental. See
BFP v. Resolution Trust Corp., 511 U.S. 531, 537, 114 S.Ct. 1757, 1761, 128 L.Ed.2d 556 (1994)
("[I]t is generally presumed that Congress acts intentionally and purposely when it includes
particular language in one section of a statute but omits it in another.") (internal quotation marks
omitted). The statute at issue here presents a particularly appropriate opportunity to apply this
12
interpretive rule, as § 14501 contains no fewer than seven express references to the regulatory
authority of the political subdivisions of the states in its other subsections, §§ 14501(a), 14501(b),
14501(c)(1), 14501(c)(2)(C), 14501(c)(3)(A), 14501(c)(3)(B), and 14501(c)(3)(C), but omits any
references to political subdivisions in § 14501(c)(2)(A). In fact, § 14501(c)(2)(A) is the only
subsection of the statute that mentions the regulatory authority of a state without also mentioning
the regulatory authority of the state's political subdivisions. We find it unlikely that this omission
reflects a drafting error, because a similar preemption provision contained in the Airline
Deregulation Act, 49 U.S.C. § 41713(b)(4)(B)(I), contains the same omission. For these reasons,
we view Congress' omission of a reference to a state's political subdivisions from § 14501(c)(2)(A)
as a manifestation of Congress' intent that municipal safety and insurance regulations are not
exempted from the preemptive scope of § 14501(c)(1).
Second, this interpretation is consistent with the policy objectives underlying the ICCTA.
As stated above, the ICCTA is the product of Congress' desire to foster increased competition in the
motor transportation industry. To achieve this end, Congress identified a need to eliminate a tangled
web of state and local ordinances that regulated the transportation of property, as evidenced in the
conference report accompanying the ICCTA:
[T]he conferees believe preemption legislation is in the public interest as well as necessary
to facilitate interstate commerce. State economic regulation of motor carrier operations
causes significant inefficiencies, increased costs, reduction of competition, inhibition of
innovation and technology and curtails the expansion of markets.... The sheer diversity of
these regulatory schemes is a huge problem for national and regional carriers attempting to
conduct a standard way of doing business.
H.R. Conf. Rep. 103-677, at 87 (1994), reprinted in 1994 U.S.C.C.A.N. 1715, 1759. By
withholding the authority to enact safety and insurance regulations from political subdivisions,
Congress ensured that counties and municipalities would not enact differing (and perhaps
13
inconsistent) sets of safety and insurance ordinances. Stated differently, it is reasonable to assume
that Congress decided that safety and insurance ordinances must be enacted on a statewide level, in
order to minimize the disturbance to the motor transportation industry that a patchwork of local
ordinances inevitably would create.6
Third, we are not persuaded by the City Defendants' arguments that the Supreme Court's
decision in Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532(1991), compels a contrary conclusion. The respondent in Mortier argued that, because the Federal
Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), codified at 7 U.S.C. § 136 et seq., contains
a provision that expressly authorizes a "State" to regulate pesticides under certain conditions but
does not mention political subdivisions, the provision preempts local regulation of pesticides. 501
U.S. at 606-07, 111 S.Ct. at 2482-83; see also 7 U.S.C. § 136v (FIFRA's preemption provision).
The Mortier Court observed that, under FIFRA, the term "State" is not "self-limiting" because
"political subdivisions are merely subordinate components" of the state itself. 501 U.S. at 612, 111
6
For example, a tow truck providing consensual towing services from a location in downtown
Atlanta to a location in Northwest Georgia may pass through nearly a dozen political
subdivisions of the State of Georgia that, under the City Defendants' reading of the statute,
would possess the authority to enact safety and insurance regulations for tow truck companies.
The number of political subdivisions rises dramatically in situations where the towing services
originate in Atlanta and end in North Florida, as is the case for at least one of the Towing
Companies that instituted this action. The cost for a towing company to maintain compliance
with all these political subdivisions' ordinances would add up quickly, resulting in the
"inefficiencies, increased costs, reduction of competition, inhibition of innovation and
technology" that Congress sought to eliminate by enacting the ICCTA. H.R. Conf. Rep. 103-
677, at 87 (1994), reprinted in 1994 U.S.C.C.A.N. 1715, 1759 In addition, if each political
subdivision required tow trucks to display some type of registration number or permit,
compliance with all of the ordinances might become a physical impossibility as the number of
permits outpaced the available space on the truck. By requiring that safety and insurance
ordinances must be enacted on a statewide basis, the costs associated with complying with the
ordinances are reduced dramatically, which is an outcome that is consistent with the policy
objectives of the ICCTA.
14
S.Ct. at 2485. Since "the exclusion of political subdivisions cannot be inferred from the express
authorization to the "State[s],' " the Court observed that "the more plausible reading of FIFRA's
authorization to the States leaves the allocation of regulatory authority to the "absolute discretion'
of the States themselves, including the option of leaving local regulation of pesticides in the hands
of local authorities." Id. at 608, 111 S.Ct. at 2483.
Mortier, however, falls short of establishing a rule that the word "state" must be interpreted
to include political subdivisions in all circumstances. Significantly, the provision interpreted in
Mortier includes no references to political subdivisions whatsoever, and FIFRA as a whole contains
only "scattered mention" of political subdivisions in its other parts. See Mortier, 501 U.S. at 612,
111 S.Ct. at 2485; 7 U.S.C. § 136v. Moreover, the Court found FIFRA's legislative history to be
too "complex and ambiguous" to support a contrary result. 501 U.S. at 612, 111 S.Ct. at 2485.
Section 14501, on the other hand, contains no fewer than seven subsections that expressly preclude
or authorize rulemaking by political subdivisions, while the subsection at issue in this case
conspicuously omits any reference to political subdivisions. See United States v. Denver, 100 F.3d
1509, 1513 (10th Cir.1996) (declining to interpret CERCLA's preemption clause to encompass
political subdivisions despite Mortier when surrounding statutory language permits inference that
"[i]f Congress had wished to include local zoning ordinances within the definition of "state law' it
would surely have so stated"); see also Ohio Mfr. Ass'n v. City of Akron, 801 F.2d 824, 829 (6th
Cir.1986) (listing federal preemption statutes that include the term "political subdivisions" and
concluding that Congress "did not simply overlook including political subdivisions" in the
Occupational Safety Act's preemption provision). Furthermore, as we stated above, our conclusion
15
is consistent with the ICCTA's legislative history.7 Cf. Denver, 100 F.3d at 1513 ("[w]e will not
apply Mortier in this context when to do so would produce a result so contrary to the overall
objectives of CERCLA as expressed consistently in the Act itself, as well as its legislative history").
For these reasons, Mortier can be distinguished on its facts, and its construction of the word "State"
need not govern our analysis.
Fourth, we are not persuaded by the Harris County court's observation that interpreting §
14501(c)(2)(A) in a way that preempts municipal safety ordinances would create an irreconcilable
conflict with the preemption provisions contained in the Hazardous Materials Transportation
Authorization Act of 1994 ("HTMA Act"), codified at 49 U.S.C.A. § 5101 et seq. See 943 F.Supp.
at 727. Specifically, the HTMA Act permits a "State, political subdivision of a State, or Indian
tribe" to enact ordinances governing the routes used by hazardous materials carriers so long as the
ordinances are not "inconsistent" with federal standards and laws governing hazardous materials
transportation. See Jersey Cent. Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1113 (3d
Cir.1985) (holding that municipal law is preempted by what is now codified as 49 U.S.C. § 5125 of
7
It is worth observing that the context in which the Mortier Court interpreted the term "State"
may have influenced the Court's conclusion as well. In Mortier, the Court faced a claim that the
use of the word "State" without mentioning political subdivisions revealed Congress' "clear and
manifest purpose" to preempt local regulation. In response, the Court held that Congress' silence
concerning political subdivisions is not sufficient to satisfy this rigorous standard. 501 U.S. at
608-09, 612, 111 S.Ct. at 2483-85. Section 14501(c)(1), on the other hand, expressly preempts
all state and local regulation of certain aspects of the motor transportation industry, and the
question we must answer is whether Congress' silence in an exception to this rule implies that
political subdivisions are to be included within the exception. The Michigan Supreme Court
addressed this distinction when construing an exception to the Federal Railroad Safety Act's
preemption clause and concluded that "[j]ust as the statutory silence in Mortier was insufficient
to establish preemption in the first place, so the statutory silence here is insufficient to overcome
the preemption otherwise expressly mandated by the statute." Grand Trunk Western R.R. Co. v.
City of Fenton, 439 Mich. 240, 482 N.W.2d 706, 709-10 (1992).
16
the HTMA). It is possible, however, to read § 14501(c)(1) and § 5125 in a way that gives effect to
both statutes. Cf. Blanchette v. Connecticut General Ins. Corp., 419 U.S. 102, 133, 95 S.Ct. 335,
353, 42 L.Ed.2d 320 (1974) (two statutes should be read in a manner that gives effect to both unless
there exists a "clearly expressed congressional intention to the contrary") (internal quotation and
citation omitted). Specifically, § 14501(c)(1) states a "general rule" regarding preemption, which
implies that Congress left the door open for any exceptions that are recognized in other parts of the
ICA. The HTMA's preemption provision thus may be read as a narrow exception to the general
preemptive scope of § 14501(c)(1) that applies to the routing of hazardous materials carriers.8 This
reading comports with the interpretive rules set forth in the preceding section, because even though
Congress included the term "political subdivisions" in the relevant portions of § 5125, the term is
conspicuously absent from other provisions that affect preemption under the HTMA. See 49 U.S.C.
§ 5112(b) (authorizing states and Indian tribes, but not political subdivisions, to designate highway
routes over which carriers may transport hazardous materials). Consequently, we do not agree that
our construction of § 14501(c)(1) creates an irreconcilable conflict with the preemptive provisions
of the HTMA.
8
The scope of this exception to § 14501(c)(1)'s general preemption rule is very narrow indeed,
because the HTMA permits a municipality to regulate the routes used by hazardous materials
carriers only if the regulations are not "inconsistent" with existing federal regulations. A
municipal routing regulation is "inconsistent" with federal regulations if it "prohibits or
otherwise affects transportation on routes or at locations" authorized by federal regulations.
Jersey Cent. Power, 772 F.2d at 1113.
17
For all these reasons, we conclude that §§ 162-223(a)-(c) do not fall within the exceptions
for safety and insurance regulations contained in § 14501(c)(2)(A). The ordinances therefore are
expressly preempted by § 14501(c)(1).9
III. CONCLUSION
For the foregoing reasons, we conclude that §§ 162-223(a)-(c) of the Atlanta Code of
Ordinances are preempted by 49 U.S.C. § 14501(c)(1) and are therefore unenforceable. We
therefore VACATE the district judge's entry of summary judgment in favor of the City Defendants
with respect to this issue, and REMAND the case to the district court for further proceedings
consistent with this opinion.
9
The City Defendants argue that, if we conclude that any portion of the towing ordinance is
preempted, we should also conclude that these portions are severable from the remaining
ordinances that affect towing services. The Towing Companies, however, do not challenge the
validity of any ordinances except §§ 162-223(a)-(c), and the Atlanta Code by its terms preserves
those parts of its ordinances that are not expressly declared to be invalid by a court of competent
jurisdiction. City of Atlanta Code of Ordinances § 1-10. Consequently, we need not address the
severability of §§ 162-223(a)-(c) from any other parts of the Atlanta Code, and we need not
address the validity of any ordinances other than those expressly challenged by the Towing
Companies.
18