PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED _______________ U.S. COURT OF APPEALS No. 97-9174 ELEVENTH CIRCUIT _______________ 10/23/98 D. C. Docket No. 1:92-CV-658-ODETHOMAS K. KAHN CLERK R. MAYER OF ATLANTA, INC., TONY N. UPCHURCH, d.b.a. Chuck’s Truck, et al., Plaintiffs-Appellants,
versus
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.
______________________________
Appeal from the United States District Court for the Northern District of Georgia ______________________________ (October 23, 1998)
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
* Honorable William Stafford, Senior U.S. District Judge for the Northern District of Florida, sitting by designation. 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.
2 I. BACKGROUND
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)
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.
3 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 person who will operate the vehicle; and (f) such
other information that may be required by the mayor or the mayor's
designee. Id.
4 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
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.
5 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:
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
3 As described below, this provision now is codified at 49 U.S.C. § 14501(c)(1).
6 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).
7 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 § 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
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.
8 v. Brunswick Corp., 107 F.3d 1494, 1498 (11th Cir.), 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 (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,
9 2482, 115 L. Ed. 2d 532 (1991) (quoting Hillsborough County v.
Automated Medical Lab., 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
10 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)
Express preemptive language may be found within the statute
itself, in its legislative history, or in regulations promulgated pursuant
11 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
(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 vehicle 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
12 "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 solely to the prices charged for
nonconsensual towing services. Cf. United States v. Smith, 499
U.S. 160, 167, 111 S. Ct. 1180, 1185 (1991) (“Where Congress
13 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–
14 (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), 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).
15 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. Texas
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.
16 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:
(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.
17 § 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
18 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 re-regulation 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 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
19 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).
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 (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.
20 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 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
21 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-CV-1311D, Civ. A. 3:97-CV-2398D, 1998 (N.D. Texas 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
22 omits it in another.”) (internal quotation marks omitted). The statute
at issue here presents a particularly appropriate opportunity to apply
this 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’
23 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,
24 Congress ensured that counties and municipalities would not enact
differing (and perhaps 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),
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.
25 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 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
26 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
27 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 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
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 W. R.R. Co. v. City of Fenton, 482 N.W.2d 706, 709-10 (Mich. 1992).
28 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. §
29 5125 of 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
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.
30 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.
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
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.
31 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.