Argued: February 1, 2019
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:18-cv-10751-Laurie J.
Michelson, District Judge.
M. Palumbos, DUANE MORRIS LLP, Philadelphia, Pennsylvania,
Elizabeth Morrisseau, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellee.
M. Palumbos, J. Manly Parks, Leah A. Mintz, DUANE MORRIS LLP,
Philadelphia, Pennsylvania, Amy E. McCracken, DUANE MORRIS
LLP, Chicago, Illinois, for Appellant.
Elizabeth Morrisseau, Danielle Allison-Yokom, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
Before: GRIFFIN, WHITE, and BUSH, Circuit Judges.
J., delivered the opinion of the court in which GRIFFIN, J.,
joined. BUSH, J. (pp. 12-24), delivered a separate opinion
concurring in the judgment.
N. WHITE, CIRCUIT JUDGE.
Ammex, Inc. (Ammex) appeals the district court's denial
of its motion seeking to preliminarily enjoin the Michigan
Department of Agriculture and Rural Development (MDARD) from
enforcing a gasoline-volatility standard on the basis that
the standard violates the Supremacy Clause and dormant
Foreign Commerce Clause of the United States Constitution.
Because we conclude that the MDARD's enforcement of the
standard is enforcement of federal law, we affirm the
district court's denial of Ammex's motion for
Ozone Air Quality Standards Under the Clean Air Act
1970, Congress amended the Clean Air Act (CAA) to direct the
Environmental Protection Agency (EPA) to establish National
Ambient Air Quality Standards (NAAQS) for certain air
pollutants. See 42 U.S.C. § 7409.
"Although the [NAAQS] are set federally, the
'primary responsibility for assuring' they are met
lies with the States." Sierra Club v. Korleski,
681 F.3d 342, 343 (6th Cir. 2012) (quoting 42 U.S.C. §
7407(a)). The CAA thus directs each state to propose a state
implementation plan (SIP) that "specif[ies] the manner
in which national . . . ambient air quality standards will be
achieved and maintained" in that state. 42 U.S.C. §
7407(a). After providing "reasonable notice and public
hearings," the state is required to submit the SIP to
the EPA. Id. § 7410(a)(1). The EPA must then
determine whether the proposed SIP meets certain minimum
criteria, and, if so, approve the SIP. Id. §
7410(k)(1)(B), (3). The EPA must also "assemble and
publish a comprehensive document for each State" listing
the requirements of the SIP, and "publish notice in the
Federal Register of the availability of such documents."
Id. § 7410(h)(1). The CAA provides that the EPA
and citizens can enforce violations of an EPA-approved SIP in
federal court. See id. §§ 7413(a), 7604.
1990, Congress again amended the CAA to, among other things,
set a national Reid Vapor Pressure (RVP) standard for
gasoline. See id. § 7545(h). Congress required
the EPA to "promulgate regulations making it unlawful
for any person during the high ozone season (as defined by
the Administrator) to sell, offer for sale, dispense, supply,
offer for supply, transport, or introduce into commerce
gasoline with a Reid Vapor Pressure in excess of 9.0 pounds
per square inch (psi)." Id. § 7545(h)(1).
Congress prohibited states from setting a different RVP
standard, see id. § 7545(c)(4)(A)(ii), unless
the EPA finds the deviation "necessary" to achieve
a NAAQS and approves the modified standard in the state's
SIP. See id. § 7545(c)(4)(C)(i); 71 Fed. Reg.
at 46880 (explaining that "a State may prescribe and
enforce a . . . low-RVP requirement only if the EPA
approves the control into the State's SIP" and the
EPA "find[s] that the state control is necessary to
achieve a NAAQS"); see also 42 U.S.C. §
7545(h)(1) (enabling the EPA to "establish more
stringent Reid Vapor Pressure standards in a nonattainment
area as the [EPA] finds necessary").
Michigan's Efforts to Meet Ozone Air Quality
has had an EPA-approved SIP since 1972. 37 Fed. Reg. 10, 842,
10, 873 (May 31, 1972). In 2004, the EPA informed Michigan
that eight counties in southeast Michigan, including Wayne
County, were "nonattainment" areas for the ozone
NAAQS. 71 Fed. Reg. at 46880. In response, Michigan enacted
House Bill 5508, which amended Mich. Comp. Laws §
290.650d (hereinafter the "Summer Fuel Law") to
limit the RVP for gasoline sold during the summer months
within those eight counties. The Summer Fuel Law provides
that gasoline stations in those counties must sell gasoline
with a vapor pressure that does not exceed 7.0 psi during the
summer months: "Beginning June 1 through September 15 of
2007 and for that period of time each subsequent year, the
vapor pressure standard shall be 7.0 psi for dispensing
facilities in Wayne" and seven other counties in
southeast Michigan. Mich. Comp. Laws § 290.650d. The
term "dispensing facility" is defined as "a
site used for gasoline refueling." Id. §
290.642(m). The MDARD is responsible for enforcing the RVP
standard. Id. § 290.647.
thereafter sought the EPA's approval to revise its SIP to
incorporate House Bill 5508. 71 Fed. Reg. at 46879. After
concluding that the revised RVP standards were
"necessary" for attainment of the applicable ozone
NAAQS, the EPA approved the incorporation of House Bill 5508
into Michigan's SIP. Approval and Promulgation of Air
Quality Implementation Plans; Michigan; Control of Gasoline
Volatility, 72 Fed. Reg. 4432, 4434-35 (Jan. 31, 2007). The
EPA has since "incorporat[ed] by reference" House
Bill 5508 into the federal regulation setting forth
Michigan's SIP. 40 C.F.R. § 52.1170.
Michigan's Enforcement Against Ammex
operates a duty-free store near the Ambassador Bridge, which
connects Detroit, Michigan, to Windsor, Canada. Ammex's
facility is located in Wayne County, Michigan, beyond the
exit point established by United States Customs and Border
Protection, i.e., the point at which a person approaching the
United States' border with Canada has "no practical
alternative" but to exit the United States. 19 C.F.R.
§ 19.35(d). Ammex sells a variety of goods, including
duty-free gasoline. Ammex began selling gasoline in the late
1990s, and sells about 400, 000 gallons each month. Ammex has
historically purchased gasoline from a supplier in a
free-trade zone in Toledo, Ohio.
summer of 2012, the MDARD tested Ammex's gasoline and
found that it had an RVP that exceeded the Summer Fuel
Law's 7.0 psi requirement. The MDARD issued a stop-sale
order preventing Ammex from selling the non-compliant
gasoline. The MDARD filed an action against Ammex in state
court, and the parties eventually reached a settlement that
(1) required Ammex to sell gasoline that complied with the
7.0 RVP standard between June 1 and September 15 of each year
and (2) provided that the state court retained jurisdiction
to enforce the settlement agreement for three years. Ammex
sold gasoline that complied with the Summer Fuel Law during
the summers of 2013, 2014, 2015, 2016, and 2017.
months leading up to the summer of 2018, Ammex believed that
it would be unable to secure gasoline that complied with both
federal-customs regulations regarding duty-free
sales and the Summer Fuel Law. Ammex was unable
to purchase gasoline meeting the 7.0 psi requirement because
one of the tanks that Ammex leased from a tank farm to hold
the bonded gasoline was undergoing repairs and maintenance.
Ammex's attempts to find another supplier of gasoline
that met both the duty-free and gasoline-volatility
requirements were unsuccessful.
result, Ammex filed this action for a declaratory judgment
against Gordon Wenk (Wenk), in his official capacity as
Director of the MDARD. The complaint asserts that Wenk's
enforcement of the Summer Fuel Law against Ammex is
unconstitutional under the dormant Foreign Commerce Clause
and that the Summer Fuel Law, as applied to Ammex, is
preempted by federal-customs law.
filed a motion for a preliminary injunction, asking that the
district court enjoin Wenk from enforcing the Summer Fuel Law
against it during the pendency of the litigation. The
district court denied the motion for preliminary injunction.
district court first considered Wenk's argument that
House Bill 5508, or at least the Summer Fuel Law, is federal
law, and therefore did not violate the dormant Foreign
Commerce Clause or the Supremacy Clause. The district
court noted that Wenk appeared to be correct, observing that
the EPA approved the Summer Fuel Law and incorporated it into
the Code of Federal Regulations; the EPA could enforce the
law; and the EPA prompted the revised standard and found it
necessary to meet the ozone NAAQS.
district court opted not to decide the issue, however, and
instead proceeded to analyze whether, if the Summer Fuel Law
is state law, it violates either the Supremacy Clause or the
dormant Foreign Commerce Clause. The district court concluded
that the Summer Fuel Law does not violate either clause, and
therefore Ammex had not shown a likelihood of success on the
merits to warrant a preliminary injunction.
district court must balance four factors when considering a
motion for a preliminary injunction: (1) whether the movant
has a strong likelihood of success on the merits; (2) whether
the movant would suffer irreparable injury absent the
injunction; (3) whether the injunction would cause
substantial harm to others; and (4) whether the public
interest would be served by the issuance of an
injunction." Bays v. City of Fairborn, 668 F.3d
814, 818-19 (6th Cir. 2012).
a party seeks a preliminary injunction on the basis of a
potential constitutional violation, 'the likelihood of
success on the merits often will be the determinative
factor.'" Obama for Am. v. Husted, 697 F.3d
423, 436 (6th Cir. 2012) (quoting Jones v. Caruso,
569 F.3d 258, 265 (6th Cir. 2009)). "Whether the movant
is likely to succeed on the merits is a question of law we
review de novo." City of Pontiac Retired Emps.
Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014)
(en banc) (per curiam). "We review for abuse of
discretion, however, the district court's ultimate
determination as to whether the four preliminary injunction
factors weigh in favor of granting or denying preliminary
injunctive relief." Id. (internal quotation
marks omitted). "This standard is deferential, but ...