Greater New York Taxi Association, et al., Appellants,v.New York City Taxi and Limousine Commission,, et al., Respondents, Nissan Taxi Marketing, N.A., LLC., et al., Intervenors-Respondents.

Brief

N.Y.June 3, 2015

APL-2014-00275 New York County Clerk’s Index No. 101083/13 Court of Appeals STATE OF NEW YORK GREATER NEW YORK TAXI ASSOCIATION and EVGENY “GENE” FREIDMAN, Petitioners-Appellants, against THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION, a charter- mandated agency, and DAVID YASSKY, in his official capacity as the Chairman of the New York City Taxi and Limousine Commission, Respondents-Respondents, and NISSAN TAXI MARKETING, N.A., LLC and NISSAN NORTH AMERICA, INC., Respondents-in-Intervention-Respondents. >> >> BRIEF FOR RESPONDENTS-IN- INTERVENTION-RESPONDENTS Peter J. Brennan JENNER & BLOCK, LLP 353 North Clark Street Chicago, Illinois 60654 312-222-9350 –and– Justin O. Spiegel JENNER & BLOCK, LLP 919 Third Avenue, 37th Floor New York, New York 10022 212-891-1600 Attorneys for Respondents-in- Intervention-RespondentsDate Completed: March 6, 2015 To Be Argued By: Peter J. Brennan Time Requested: 30 Minutes i DISCLOSURE STATEMENT Defendant Nissan Taxi Marketing, N.A., LLC is a wholly-owned subsidiary of Nissan North America, Inc. Defendant Nissan North America, Inc., is a wholly-owned subsidiary of Nissan Motor Co., Ltd. (“NML”). Renault S.A. owns 43.4% of the outstanding capital stock of NML. Daimler AG owns 3.1% of the outstanding capital stock of NML. ii TABLE OF CONTENTS Pages PRELIMINARY STATEMENT ............................................................................... 1 QUESTIONS PRESENTED ...................................................................................... 3 COMBINED STATEMENT OF THE NATURE OF THE CASE, FACTS, AND PROCEDURAL HISTORY .................................................................. 3 I. Taxi of Tomorrow Program ............................................................................. 5 A. The Vehicle Supply Agreement and The Original ToT Rules.............. 8 B. Revised ToT Rules .............................................................................. 10 II. The Nissan NV200 Taxi of Tomorrow ......................................................... 11 A. Taxi of Tomorrow Features ................................................................. 12 B. Taxi of Tomorrow Design, Development, and Road Testing ............. 15 C. Taxi of Tomorrow Accessibility ......................................................... 17 D. Service and Parts ................................................................................. 19 III. Challenge to the Revised ToT Rules ............................................................. 20 A. The Supreme Court’s Decision ........................................................... 20 B. The First Department’s Reversal ......................................................... 22 ARGUMENT ........................................................................................................... 25 I. The Taxi and Limousine Commission Has Statutory Authority to Select a Single World-Class Vehicle as the Exclusive New York City Taxi. ............................................................................................................... 25 A. The TLC Has Statutory Authority to Exclude Vehicles from Taxi Service on the Basis of Inferior Features. ................................... 26 iii B. The TLC’s Development of the ToT Vehicle Standards and Selection of the ToT Was Consistent with Its Authority Under the Charter. .......................................................................................... 29 C. The TLC Did Not Exceed Its Authority by Entering Into the VSA. .................................................................................................... 33 II. The Selection of a Single Non-Hybrid Taxi Vehicle Is Consistent with the Separation of Powers Doctrine. ............................................................... 36 A. The TLC’s Selection of the ToT as the Exclusive Taxi Is Consistent with the Court of Appeals’ Separation of Power Jurisprudence. ...................................................................................... 37 B. The Revised ToT Rule Is Consistent with the Legislative Policy of Only Approving the Safest, Most Convenient, Comfortable, and Efficient Vehicles. ........................................................................ 43 C. The City Council Has Never Tried—Much Less Failed—to Pass Legislation Designating a Single Taxi Vehicle. ......................... 46 D. The TLC’s Expertise Was Essential to the Development of Taxi of Tomorrow Standards and the Selection of the Nissan NV200 Taxi. ..................................................................................................... 48 E. The Court of Appeals’ Recent Decision in Coalition of Hispanic Chambers of Commerce Supports the Appellate Division’s Determination that the TLC Did Not Violate the Separation of Powers Doctrine. ........................................................... 51 CONCLUSION ........................................................................................................ 56 iv TABLE OF AUTHORITIES Page(s) CASES Alexandre v. N.Y.C. Taxi and Limousine Comm’n, No. 07 Civ. 8175(RMB), 2007 WL 2826952 (S.D.N.Y. Sept. 28, 2007) ............34 Boreali v. Axelrod, 517 N.E.2d 1350, 71 N.Y.2d 1 (N.Y. 1987) ........................................................ passim Bourquin v. Cuomo, 652 N.E.2d 171, 85 N.Y.2d 781 (N.Y. 1995) ............................................37, 43, 44, 47 Campagna v. Shaffer, 536 N.E.2d 368, 73 N.Y.2d. 237 (N.Y. 1989) .............................................................40 Citizens for an Orderly Energy Policy, Inc. v. Cuomo, 582 N.E.2d 568, 78 N.Y.2d 398 (N.Y. 1991) ..............................................................37 City of N.Y. v. State of N.Y. Comm’n on Cable Television, 390 N.E.2d 293, 47 N.Y.2d 89 (N.Y. 1979) ....................................................26, 28, 31 Clark v. Cuomo, 486 N.E.2d 794, 66 N.Y.2d 185 (N.Y. 1985) ..............................................................48 Concerned Home Care Providers, Inc. v. N.Y. State Dep’t of Health, 969 N.Y.S.2d 743 (N.Y. Sup. Ct. 2013) .......................................................................46 Consol. Edison Co. of N.Y., Inc. v. Dep’t of Envtl. Conservation, 519 N.E.2d 320, 71 N.Y.2d 186 (N.Y. 1988) ........................................................40, 49 Matter of N.Y. Statewide Coalition of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene, 16 N.E.3d 538, 23 N.Y.3d 681 (2014) ................................................................... passim Matter of N.Y. City Comm. for Taxi Safety v. N.Y. City Taxi and Limousine Comm’n, 256 A.D.2d 136, 681 N.Y.S.2d 509 (1st Dep’t 1998) ...............................................27 Med. Soc’y of State v. Serio, 800 N.E.2d 728, 100 N.Y.2d 854 (N.Y. 2003) .................................................... passim v Mercy Hosp. of Watertown v. N.Y. State Dep’t of Soc. Servs., 590 N.E.2d 213, 79 N.Y.2d 197 (N.Y. 1992) ........................................................26, 45 Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. Jorling, 152 Misc.2d 405, 577 N.Y.S.2d 346 ..............................................................................49 New York State Health Facilities Association, Inc. v. Axelrod, 569 N.E.2d 860, 77 N.Y.2d 340 (N.Y. 1991) ............................................40, 41, 44, 53 Rent Stabilization Association of New York City, Inc. v. Higgins, 630 N.E.2d 626, 83 N.Y.2d 156 (N.Y. 1993) ........................................................41, 44 Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519 (1978) ...........................................................................................................32 STATUTES New York General City Law § 20(1) ...................................................................................33 N.Y.C. Charter §§ 318–20 ......................................................................................................33 N.Y.C. Charter § 823(d) ..........................................................................................................33 N.Y.C. Charter § 2300 .....................................................................................22, 25, 26, 29, 34 N.Y.C. Charter § 2303 .......................................................................................................10, 22 N.Y.C. Charter § 2303(b)(4) ..................................................................................................27 N.Y.C. Charter § 2303(b)(6) .......................................................................................... passim N.Y.C. Charter § 2303(b)(9) ............................................................................................26, 29 OTHER AUTHORITIES New York City Administrative Code § 19-533 ......................................................... passim 1 PRELIMINARY STATEMENT The issue in this case is straight-forward and simple: Whether the New York City Taxi and Limousine Commission (“TLC”) acted within the scope of its delegated authority when it chose the single best vehicle in terms of safety, design, comfort, convenience, and efficiency as the exclusive taxicab vehicle for New York City. To improve New York City taxi vehicles, the City of New York (the “City”) and the TLC developed goals for a purpose-built “Taxi of Tomorrow” that would have unprecedented, world-class safety and other features. After reviewing seven competing proposals, the City and TLC concluded that the Nissan NV200 taxi (hereinafter the “Taxi of Tomorrow” or “ToT”) best met the extensive set of vehicle requirements the City and TLC developed. The TLC then adopted rules making the NV200 taxi the exclusive taxi vehicle for the City of New York but permitting taxi owners to purchase any qualifying hybrid taxi in lieu of the ToT . Petitioners-Appellants Evgeny “Gene” Freidman and Greater New York Taxi Association (“GNYTA”) (together “Appellants”), the owner of a large taxi fleet and a taxi-owner-advocacy group, brought an Article 78 proceeding against the TLC and TLC Chairman David Yassky, claiming, inter alia, that the TLC lacked the power to exclude inferior vehicles from taxi service. Nissan Taxi Marketing, N.A., LLC (“Nissan Taxi Marketing”) and Nissan North America, Inc. (“Nissan North America”) (together “Nissan”) intervened as respondents. In an 2 October 8, 2013 Decision/Order and judgment, the New York Supreme Court, New York County, invalidated the TLC rule making the ToT the exclusive non- hybrid taxi vehicle on grounds that the TLC (1) lacked authority to exclude vehicles that did not come close to the standards set by the superior ToT, and (2) violated the separation of powers doctrine by excluding vehicles that were vastly inferior to the ToT. The TLC and Nissan appealed, and on June 10, 2014, the First Department reversed the Supreme Court’s decision, holding that the TLC’s rulemaking neither exceeded its statutory authority nor violated the separation of powers doctrine. In this appeal, Appellants again assert that the TLC’s decision not to settle for a fleet of inferior taxi vehicles exceeded its statutory authority and constituted a violation of the separation of powers doctrine. But, as the First Department found, the TLC has authority under the New York City Charter to approve for taxi use the only vehicle that meets the highest standards of safety, design, comfort, convenience, and efficiency and to exclude all other vehicles based on their corresponding inferiority. Concluding otherwise means that the City Charter requires the TLC to approve taxi vehicles with inferior features. Further, the TLC’s designation of the ToT as the exclusive taxi vehicle did not violate the separation of powers doctrine because the TLC acted pursuant to its statutory 3 authority and none of the factors identified in the Court of Appeals’ decision in Boreali v. Axelrod, 517 N.E.2d 1350, 71 N.Y.2d 1 (N.Y. 1987), is present here. QUESTIONS PRESENTED 1. Did the Taxi and Limousine Commission (“TLC”) exceed its statutory authority by developing demanding standards for a purpose-built taxi vehicle and selecting the only vehicle that exceeded those demanding standards as the exclusive, non-hybrid taxi vehicle, while excluding those vehicles that did not meet the TLC’s standards? New York Appellate Division Answer: No. 2. Did the TLC violate the separation of powers doctrine by developing demanding standards for a purpose-built taxi vehicle and selecting the only vehicle that met those standards as the exclusive, non-hybrid taxi vehicle? New York Appellate Division Answer: No. COMBINED STATEMENT OF THE NATURE OF THE CASE, FACTS, AND PROCEDURAL HISTORY There are 13,237 yellow taxis in New York City. (2030). 1 Due to the relatively small size of the taxi vehicle market, most manufacturers do not design and build vehicles with taxi-specific requirements. Rather, taxi owners purchase retail vehicles from dealerships and “hack-up” those vehicles with the aftermarket addition of a partition, yellow paint, and other taxi equipment required by the TLC. 1 Numbers in parentheses refer to pages in the Record on Appeal. 4 Hacked-up retail vehicles are not designed to be taxis. Retail vehicles lack critical, taxi-specific safety features, including airbags designed to deploy around the partition and partition-installed crash-testing to verify compliance with Federal Motor Vehicle Safety Standards in the vehicles’ taxi configurations. Hacked-up retail vehicles also lack comforts and conveniences important to passengers, such as (a) grab handles for easy ingress and egress, (b) a dedicated, passenger- controlled heating, ventilation, and air conditioning (“HVAC”) system, (c) a sophisticated hearing loop system that electronically transfers a sound source directly to a person’s hearing aid without background noise, (d) cavernous legroom with 14 inches of space between a six footer’s knees and the back of the front seat, and (e) very large luggage capacity. Hacked-up retail vehicles also impair driver comfort; the aftermarket installation of the partition makes the adjustment of the driver’s seat impossible. To address these shortcomings, the City and the TLC envisioned a new, comprehensive set of vehicle standards that would end New York City taxis’ reliance on the retail vehicle market and ensure that New York City would have a state-of-the-art, purpose-built “Taxi of Tomorrow” with unprecedented safety features and passenger and driver conveniences. The TLC and Nissan spent five years developing a taxi vehicle that became available for delivery in October 2013. That vehicle, the Nissan NV200/Taxi of 5 Tomorrow, is vastly superior to any taxi that has ever operated in New York City. This case is about the TLC’s enactment of a rule that excluded all of the vastly inferior vehicles from taxi service, unless those vehicles were hybrids. The Appellate Division upheld that rule, recognizing that the TLC’s broad mandate to develop and improve taxi and limousine service necessarily encompassed the ability to set detailed specifications for taxi vehicles designed to exclude all inferior vehicles from taxi service. I. Taxi of Tomorrow Program In 2007, the City and the TLC convened an Advisory Committee of taxi passengers, drivers, taxi owners, taxi owner organizations, disability advocates, and others. (815–17; 2035.) With the help of Ricardo, Inc., the world-renowned authority on automobile manufacture and design (818), and input from the Advisory Committee, the TLC developed standards for a vastly superior taxi vehicle. In February 2008, the TLC issued a Request for Information to determine which of those standards would be feasible. (820–33.) In December 2009, after consulting with groups representing drivers and owners, passengers, and transportation policy experts (2037), the City issued a Request for Proposals for a “Taxi of Tomorrow” (the “RFP”). (834–959.) The RFP sought “a highly qualified Original Equipment Manufacturer (‘OEM’), or a 6 team that includes an OEM, to provide an innovative vehicle developed or modified for use” in New York City. (837.) The RFP identified the following “minimum requirements”: • Compliance with Federal Motor Vehicle Safety Standards “with taxi content fitted” • Compliance with other applicable federal and industry safety standards • Integration “into the O[riginal] E[quipment] manufacturing quality process” of “all taxi content defined based on feedback from stakeholder groups” • The ability “to transfer a reduced-mobility rider from the curb to the taxi” • Compliance with federal and state emissions and fuel economy requirements • Yellow paint • A 150,000 mile powertrain warranty. (841; 856.) The RFP also included a lengthy list of desirable technical features, including a small vehicle footprint, non-permeable seat and floor coverings, a driver work area, and a rear passenger-controlled HVAC system. (855–75.) The RFP further asked manufacturers to address how their proposed vehicle would “alter or improve” TLC-mandated taxi equipment, including the driver emergency light and the partition. (842.) The RFP’s detailed vehicle requirements reflected typical taxi duty cycles and their vehicle performance demands, including 7 “increased use of throttle pedal operations, gear shifts and launch/brake events” (839), vehicle noise and harshness standards (865), fuel economy and safety requirements (871–72), and vehicle ergonomic requirements (863). Over the course of one year, a Taxi of Tomorrow Scoring Committee consisting of five City employees advised by Ricardo, Inc., evaluated the seven responses to the RFP. (2036.) 2 Using a sophisticated scoring system, the Scoring Committee evaluated each responsive proposal and determined that Nissan, Ford Motor Corp., and Karsan USA, LLC, scored the highest. 3 In February 2011, the TLC solicited public feedback on the features offered in these proposals via a survey on the City’s website. (1118–30.) 4 The Scoring Committee then conducted a thorough evaluation of these three finalists’ proposals by scoring these companies’ responses to interviews and evaluating the companies’ Best and Final Offers. (1132; 2038–39.) 2 A detailed summary of the Scoring Committee’s evaluation of responses to the RFP is available at pages 2036 to 2040 in the Record on Appeal. 3 A summary of the scoring methodology the Scoring Committee used is available at pages 970 to 971 in the Record on Appeal. A detailed description of the scoring methodology is available at pages 972 to 976. Detailed instructions developed by Ricardo, Inc., on scoring the RFP responses that were distributed to Scoring Committee members is available at pages 977 to 1050. 4 Without citation to anything in the record whatsoever, Appellants declare that the Nissan ToT “received the support of only 2% of those who voted in an online poll.” (Brief for Petitioners-Appellants at 5.) It is not clear what “online poll” Appellants refer to. In the official survey on the City’s website, 42.4% of participants asked what they thought of the Nissan ToT’s design answered “Like It” or “Love It.” (1129.) 8 In May 2011, the City selected Nissan’s NV200 taxi proposal as the winner of the Taxi of Tomorrow competition. The Scoring Committee determined that Nissan’s Best and Final Offer scored higher than the Ford and Karsan proposals, and Nissan’s proposal had the lowest base price and total cost of vehicle ownership. (1132; 2040.) In its Final Responder Review and Conclusions, Ricardo, Inc., recommended selecting the Nissan NV200 taxi based on its assessment of the finalist companies’ relative risk. (1196.) A. The Vehicle Supply Agreement and The Original ToT Rules After Nissan’s selection, Nissan Taxi Marketing, a wholly owned subsidiary of Nissan North America, negotiated a Vehicle Supply Agreement (“VSA”) with the City. (1258–1362.) On June 1, 2012, the City published a notice in the City Record of a public hearing on the VSA to take place on June 15, 2012. No one testified in person at that hearing. (1610.) Nissan Taxi Marketing and the City executed the VSA on October 9, 2012. (1258.) The VSA includes the following key terms: • Nissan has the exclusive right to make the ToT available for sale to unrestricted taxi medallion holders until October 31, 2023 (1274), subject to the caveat that if the City identifies a vehicle superior to the ToT, then the City may approve that vehicle for taxi use after October 2018 (1278). • The ToT must have dual sliding doors, rear passenger HVAC controls, charging ports, floor lighting, and an adjustable driver’s seat. (1334– 40.) 9 • Nissan may have no monopoly on ToT service for the life of ToT vehicles. (1292.) The VSA itself does not require taxi owners to purchase vehicles from Nissan or to contract with Nissan in any fashion. The VSA merely requires Nissan to make ToTs available for purchase. (1273). Moreover, despite Appellants’ assertion to the contrary (see Brief for Petitioners-Appellants (“Appellants’ Brief”) at 1), the VSA does not fix the price that a taxi owner must pay Nissan for a ToT. Instead, the VSA establishes the Manufacturer’s Suggested Retail Price (“MSRP”) for the ToT in each model year (1332), and, consistent with New York State law, renders the actual price paid by a taxi owner for the ToT subject to negotiation between taxi owners and Nissan dealers (1277). For model year 2014, the MSRP was $29,700. (1332.) On August 6, 2012, the TLC published proposed rules implementing the Taxi of Tomorrow program (the “Original ToT Rules”) in the City Record with a notice that the TLC would seek written comments and testimony at a hearing. (1493–1521.) The Original ToT Rules reflected the terms of the VSA and required taxi owners, with some limited exceptions, to replace taxi vehicles, upon those vehicles’ scheduled retirements, with the ToT or an accessible version of the ToT, beginning on October 31, 2013. (1907–38.) The TLC approved the Original ToT Rules by a vote of 5 to 2. (1802.) 10 B. Revised ToT Rules In November 2012, the Committee for Taxi Safety, a trade association of taxi leasing agents, challenged the Original ToT Rules in the New York Supreme Court pursuant Article 78. 5 The Committee for Taxi Safety alleged, inter alia, that the Original ToT Rules, by requiring taxi owners to purchase the ToT—which is not a hybrid vehicle—violated New York City Administrative Code Section 19- 533, which requires the TLC to approve “one or more” hybrid vehicle “model or models” for taxi use. (585–86.) On May 15, 2013, the Supreme Court invalidated the Original ToT Rules on these grounds. (583–93.) On May 20, 2013, the TLC published proposed revised ToT rules and a notice of a hearing on the proposed revised rules in the City Record. (1962–66.) Both the proposed rules and the notice cited New York City Charter Section 2303 as a basis of the TLC’s authority to promulgate the proposed rules. (1962; 1963.) The proposed rules modified the Original ToT Rules to comply with New York City Administrative Code Section 19-533 and consisted of two separate rules. The first rule designated the ToT as the exclusive non-hybrid taxi vehicle (the “ToT Rule”). (1963.) The second rule established standards for hybrid vehicles to be approved as taxicabs and permitted taxi owners to purchase approved hybrid vehicles in lieu of purchasing the ToT or accessible ToT (the “Hybrid Rule”). 5 The Committee for Taxi Safety is not a party to this proceeding and has not sued to invalidate the rules that Appellants have challenged in this proceeding. 11 (1963.) The Hybrid Rule, as eventually passed, required any approved hybrid vehicles to have an interior volume of 130 cubic feet—a standard met by four hybrids approved at that time as taxicab vehicles, including the Toyota Prius v, one of the more popular hybrid vehicles used as a taxi in New York. (294, 2070–72.) On June 20, 2013, the TLC approved the Revised ToT Rules in two separate votes, each by a margin of seven to one. (415; 418.) By their terms, the Revised ToT Rules took effect on October 28, 2013. That same day, Nissan Taxi Marketing executed a written waiver of its exclusivity rights under the VSA, exempting hybrids covered by the Hybrid Rule from the exclusivity provision. (2366–67.) II. The Nissan NV200 Taxi of Tomorrow The ToT is the first ever New York City taxi vehicle designed and engineered specifically for the unique demands of New York City taxi service and reflects substantial improvements in safety, ergonomics, passenger and luggage room, comfort, and convenience over all other vehicles in the taxi fleet. That the ToT is vastly superior to any other available vehicle is not surprising as it is the product of more than $50 million of vehicle research and development, testing, and validation and unprecedented application of engineering know-how to the specific challenges of New York City taxis. (2184.) No other manufacturer of New York City taxi vehicles has applied any, much less comparable, resources to this task, 12 including the design of a full-featured taxi that can be made wheelchair accessible at a fair cost. As any passenger realizes when he or she steps into a ToT and experiences its cavernous legroom, the features of this innovative, customized vehicle render the ToT the safest, most comfortable, and most outstanding taxi in America. A. Taxi of Tomorrow Features The Nissan ToT is a customized taxi vehicle equipped with critical safety features, passenger and driver conveniences, and iconic content unprecedented in New York City’s taxi fleet. The ToT’s unique features, which meet or exceed the TLC RFP’s “minimum requirements,” include: • Crash-testing of the vehicle with the partition installed • Compliance with all applicable Federal Motor Vehicle Safety Standards with all taxi equipment installed • Rear-passenger leg room that is cavernous, with approximately 14- inches of space between a 6-foot-tall person’s knee and the back of the partition • 150,000 mile powertrain warranty • Dedicated, passenger-controlled HVAC system • Transparent, panoramic SkyRoof • Low-annoyance horn and “horn light” to promote enforcement of anti- noise laws • Integrated, exterior passenger exit warning lighting • Backup camera for drivers 13 • Highlighted seatbelt buckles to promote seatbelt use • Built-in GPS navigation system • Six-way adjustable driver’s seat covered in breathable fabric • Automatically deploying side steps and grab handles for easy entry and exit from the vehicle • Hearing loop system that electronically transfers a sound source directly to a person’s hearing aid without background noise • Driver-passenger intercom system • Floor lighting to help passengers locate dropped objects • Passenger-controlled reading lights • USB and 12-volt charging stations for passenger electronics • Odor-absorbing, active carbon-lined headliner (107–08; 1334–40; 2184.) At least 10 of those features do not exist on any retail vehicle currently serving as a taxi in New York City. In addition, Nissan integrated much of the aftermarket taxi hack-up equipment into the ToT design, thereby saving purchasers approximately $4,500 in aftermarket costs. (2051–52; 2186.) As a result, much of the taxi equipment that today must be installed to convert retail vehicles for taxi service will be installed in ToT production models at Nissan’s factory. This equipment, which TLC rules require all taxis to have, includes the partition, the amber driver emergency light, the roof-mounted taxi availability light, vinyl seating upholstery, yellow exterior paint, and vinyl flooring in the passenger 14 compartment. (2184.) The only aftermarket modification needed to ready the ToT for service is the installation of the driver information unit and taxi meter in the front of the vehicle, the passenger information monitor and credit card reader in the partition, and the vehicle’s GPS tracking device. (2051–52; 2184.) The integration of taxi equipment into the ToT design—and the integration of the partition into the ToT vehicle structure—represents a substantial improvement in taxi safety relative to the current fleet. Unlike all other taxis currently in service in New York City, the ToT has been crash-tested and certified compliant with applicable Federal Motor Vehicle Safety Standards with the partition installed, ensuring that the partition will not interfere with the proper deployment of side curtain airbags—a claim that no vehicle in which the partition is installed aftermarket can make. (2185.) Nissan conducted 16 different certification crash tests with taxi equipment installed in the crashed vehicle. (2185.) Some of the crash tests were conducted at speeds significantly higher than the federal requirement. The ToT passed all the tests and meets all the applicable Federal Motor Vehicle Safety Standards. (2185.) In addition to the federal safety standards, Nissan conducted six additional crash tests to validate that the vehicle met Nissan’s own stringent internal standards. Again, the vehicle passed these internal requirements. (2185.) 15 B. Taxi of Tomorrow Design, Development, and Road Testing Like every Nissan vehicle, the ToT was engineered according to exacting protocols. These protocols reflect Nissan’s long history of auto-making experience and know-how, more than $50 million of research and development, and thousands of engineer-hours. (2186.) With the unique challenge of serving as a taxi in New York City in mind, Nissan selected the commercial-grade NV200 platform for the ToT and incorporated the NV200’s engine and basic body architecture into the ToT. (2186.) The commercial-grade NV200 platform is engineered to achieve more demanding durability and reliability targets than a retail passenger vehicle. (2186– 87.) As a commercial-grade vehicle, the NV200 is equipped with a more durable body structure and suspension system than passenger vehicles. (2186–87.) Moreover, Nissan did not merely adapt the NV200 to the ToT using anecdotal evidence about the requirements of New York City taxicabs. In the spring of 2011, Nissan engineers came to New York City to gather objective data from actual New York City taxis to model the real-world conditions the ToT will encounter each day. (2187.) Nissan equipped the suspension and powertrain systems of two Nissan Altima taxis with electronic sensors and collected two weeks of data regarding taxi accelerations, braking, idle time, engine and transmission temperatures, and New York City road conditions to develop the ToT design 16 concept. (2187.) Nissan also purchased two vehicles currently used as New York City taxis—a Ford Transit Connect and a Ford Crown Victoria—and measured their ride comfort, braking, noise, vibration and harshness, and powertrain characteristics. (2188.) Nissan engineers used this data to set performance targets for the ToT and its systems. Data collected from the Nissan Altima taxis, the Transit Connect, and Crown Victoria informed standards for the ToT’s acceleration, braking, suspension systems, chassis durability, ergonomics, noise, vibration, and harshness. (2188.) Based on data collected in New York City, Nissan selected a third-generation, continuously variable transmission to improve the ToT’s fuel efficiency and to improve engine durability. (2188.) The ToT will achieve 23 miles-per-gallon (“MPG”) in the city and 26 MPG on the highway, for a combined fuel economy of 24 MPG. (2192.) To meet ToT durability targets, Nissan added spot welds, additional metal reinforcements, and industrial-grade adhesives to the engine room compartment, vehicle upper body, and floor. (2188.) To improve the ToT’s collision performance with the addition of taxi contents, Nissan added structural reinforcements to the front and sides of the vehicle. (2188–89.) Nissan also reinforced the mounting points for the ToT’s suspension system and modified the rear and front ToT suspension design to give the ToT greater ground clearance and improve ride quality. (2189.) 17 C. Taxi of Tomorrow Accessibility6 Unlike the vast majority of New York’s current taxi fleet, the ToT is modifiable to be fully wheelchair accessible; and an accessible version of the ToT is currently available from third-party vendor Braun Corporation. 7 (2196.) Per the VSA, the cost to taxi owners of the modification may not exceed $14,000. 8 (1332– 33.) This figure is comparable to the cost of converting other vehicles for accessible taxi service. 9 Though comparable in price to other modified, accessible vehicles used as taxis today, the accessible ToT offers more features and passenger conveniences. First, the wheelchair “tie-down” system in modified Toyota Sienna minivans is removable. As a result, the tie-downs may be taken out of the vehicle or lost. In contrast, the tie-down feature in the modified ToT is integrated into the vehicle and 6 Because the accessible version of the ToT was under development during the time of proceedings before the Supreme Court and the Appellate Division, current information regarding the development and costs of that vehicle does not appear in the record. In order to keep the Court of Appeals fully informed of developments since this case was last heard, Nissan provides some information in footnotes below regarding the current status of the accessible ToT. Nissan acknowledges, however, that this material does not appear in the Record on Appeal. 7 For various reasons, OEMs typically do not manufacture accessible vehicles. Third-parties generally modify vehicles to be accessible after purchasing vehicles from OEMs. As of August 2013, only one single vehicle used as a New York taxi, the VPG MV1, was a factory- built accessible model. (2196.) That vehicle had a 2011 MSRP of $41,950—not including the cost of hacking it up—which is comparable to the total cost of a ToT with the accessible modification. (1461.) 8 The contract agreed to by Braun and Nissan set the cost of the conversion at $11,500 for dealer vehicles. 9 For example, the cost to taxi owners of a rear-entry conversion for the Toyota Sienna minivan is approximately $10,000 to $11,000. (2197.) 18 is not removable. (2198.) Accordingly, the risk that a mobility-impaired passenger who hails a ToT will not be properly secured due to lack of a tie-down system is minimized. (2198.) Second, the tie-down system in the ToT is based on new technology that reduces the risk of improper use. The Toyota Sienna tie-down system is more complex and requires additional driver training to operate properly. (2198.) The ToT’s tie-down system is intuitive and reduces the risk of user error. Braun developed this innovative system specifically for the ToT. (2198.) Third, accessibility modifications to the ToT do not interfere with luggage storage or loading when the vehicle is not serving a mobility-impaired passenger. When not in use, the Toyota Sienna’s ramp is stored vertically and blocks access to the trunk through the rear door, which requires the driver to deploy the ramp or work around it to load the vehicle. (2198.) By contrast, the ToT’s wheelchair ramp folds flat and does not block the loading or unloading of luggage. (2198.) Fourth, mobility-impaired ToT passengers have access to the same taxi features and amenities as non-mobility-impaired passengers. The modified ToT permits the mobility-impaired passenger to ride in approximately the same location as the second row of seats, which permits the passenger to access the rear HVAC system. (2199.) In the modified Sienna, mobility-impaired passengers must ride in the rear of the vehicle, where they cannot access any taxi equipment. (2199.) 19 The advantages of the modified ToT do not compromise passenger safety. Nissan has required Braun to meet the same Nissan internal vehicle durability requirements used for all ToT models, which is a standard three times more rigorous than Braun normally adheres to. (2199.) After Braun modified the ToT, Braun was required to recertify the vehicle to meet all applicable federal safety requirements, and to crash test the accessible ToT with all Nissan and Braun- supplied taxi equipment, including the partition, installed. (2199.) 10 D. Service and Parts Nissan has invested extraordinary resources to service and support the ToT. Retail vehicles serving as taxis get the typical 5-year, 60,000 mile powertrain warranty. In contrast, the ToT boasts a 150,000 mile powertrain warranty included in its base price. (2192.) To conduct warranty repairs, Nissan has engaged its network of New York City-area dealers. As of August 29, 2013, Nissan had authorized seven dealers within a 25-mile radius of Times Square as ToT warranty repair facilities. (2192.) ToT owners are able to order parts locally from the “will call” at Nissan’s Somerset, New Jersey, Parts Distribution Center (“PDC”). (2193.) Moreover, warranty repairs are not limited to Nissan dealers. Any qualified taxi fleet may have Nissan certify its garage as a “Fleet Service Station,” which will authorize the 10 The accessible ToT was crash tested with all taxi equipment installed in April 2014. 20 garage to perform ToT warranty repairs. (2192.) The Fleet Service Station program ensures that large fleets will not need to rely on Nissan dealers to perform even major ToT repairs. (2192–93.) Importantly, a substantial amount of service work on the ToT will not require service by a Nissan dealer or Fleet Service Station because that work involves routine maintenance, such as oil and tire changes, or other work that is not covered by warranty. That service work may be performed at any garage. (2194.) III. Challenge to the Revised ToT Rules On July 31, 2013, Appellants filed a Verified Article 78 and Declaratory Judgment Petition in the New York Supreme Court, New York County, challenging the Revised ToT Rules. The Committee for Taxi Safety, which successfully sued to enjoin the Original ToT Rules, did not join this challenge. A. The Supreme Court’s Decision On October 8, 2013, the New York Supreme Court issued a Decision/Order and judgment invalidating the ToT Rule but leaving the Hybrid Rule in effect (the “Supreme Court Order”). In its 13-page order, the New York Supreme Court concluded that the ToT Rule was invalid because “there is no prior precedent for the TLC to contract with a particular vendor to bind medallion owners to purchase a single, complete vehicle at a predetermined price,” citing cases from 1944 and 1939 holding that the New York City Commissioner of Licenses had no authority 21 to prescribe the form that existing contracts between employment agencies and employment applicants must take. (21.) “By analogy” to these cases, the Supreme Court Order explained that the TLC had no authority under the City Charter to contract with Nissan to provide vehicles to taxi owners. (21–22.) The New York Supreme Court did not discuss, cite, or examine New York City Charter Section 2303(b)(6)’s express grant of statutory authority to the TLC to set “standards of safety, and design, comfort, convenience, noise and air pollution control and efficiency in the operation of vehicles and auxiliary equipment.” In an alternative holding, the New York Supreme Court held that the ToT Rule violated the separation of powers doctrine. Relying almost entirely on the second factor from Boreali v. Axelrod, 517 N.E.2d 1350, 71 N.Y.2d 1, the court concluded that because the City Charter granted the TLC no express authority to select the best taxi vehicle, that policy decision was reserved for the City Council. (22–26.) In support of this point, the Supreme Court’s Order cited the 2005 enactment of New York City Administrative Code Section 19-533—which requires the TLC to approve “one or more” hybrid vehicle “model or models”— and the fact that the City Council debated a law that would have required taxicabs to be accessible. (25–26.) The Supreme Court’s Order concluded that by selecting the ToT, the TLC balanced concerns of “consumer comfort, cost and the need to increase the number of hybrid, clean-air and accessible taxicabs” and thereby 22 “acted solely on its own ideas of sound policy.” (26.) The Supreme Court’s Order did not discuss or invalidate the Hybrid Rule. B. The First Department’s Reversal The City and Nissan appealed the Supreme Court’s Order, and on June 10, 2014, the Supreme Court, Appellate Division, First Department, issued an Order reversing the Supreme Court (the “First Department Order”), declaring that the ToT program was “a legally appropriate response to the agency’s statutory obligation to produce a twenty-first century taxicab consistent with the broad interests and perspectives that the agency is charged with protecting.” (2480.) The First Department initially examined the source and scope of the TLC’s statutory authority, finding that the grant of authority to the TLC encompassed in New York City Charter Section 2300 “could hardly be stronger or more expansive[: T]he TLC's assigned mission is to establish public transportation policy to develop and improve New York City taxi service.” (2480–81 (emphasis in original).) The First Department found that the provisions of Section 2303 directing the setting of standards and specifications were “merely a part of the overall directives of the Charter,” and did not limit the TLC’s broad authority in any manner. (2481.) The First Department concluded that the “far-reaching control” granted to the TLC “gave the agency full authority for its actions,” as it reflected “an 23 expansive mandate to develop and improve taxi and limousine service, expressly including a direction to adopt and establish an overall public transportation policy governing taxi [] service[].” (2488 (internal quotation marks omitted).) Adopting the position taken by the City and Nissan, the court concluded that the TLC’s undisputed authority to set standards and to exclude vehicles that did not meet those standards unquestionably encompassed the ability to set standards excluding all but one vehicle from taxicab service. Moreover, the court noted that the method chosen by the TLC to reach that result—“selection of a specific, specially designed vehicle as the sole model”—did not change that result and, in fact, “benefited all concerned” by allowing the TLC to “wield negotiating power unavailable to individual medallion owners” and to “arrange for the creation of a taxi possessing all the qualities it sought.” (2490–91.) The First Department also rejected the Supreme Court’s notion that the TLC somehow exceeded its authority by entering into the VSA. The court noted that it was the New York City Department of Citywide Administrative Services that actually entered into the VSA, and found that that agency did so consistent with its own statutory authority. It went on to conclude that, in any event, the two cases relied upon by the Supreme Court in finding that the TLC exceeded its authority in entering into the VSA were completely distinguishable due to “the type of broad, policy-making mandate that the Charter gave to the TLC.” (2492–93.) 24 The First Department went on also to reject the Supreme Court’s alternative ruling that the ToT Rule violated the separation of powers doctrine. Examining all four Boreali factors, the court concluded that the ToT Rule was completely unlike the rules at issue either in Boreali or in the First Department’s then-recent decision in Matter of N.Y. Statewide Coalition of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene, 110 A.D.3d 1, 970 N.Y.S.2d 200 (1st Dep’t 2013). Most notably, the First Department found that unlike in those cases, “the Legislature had clearly articulated its policy regarding the TLC’s assigned task,” and that, even if the Revised ToT Rules “may be characterized as involving policy-making, here, the parameters of that policy-making were set by the City Council in the City Charter.” (2497–98.) It also rejected the notion that the New York City Council had attempted to itself regulate what vehicles could serve as taxis, noting that only once in history had the City Council ever spoken to such an issue—when it passed Section 19-533, requiring the availability of at least one hybrid vehicle. (2498.) One justice dissented from the opinion, arguing primarily that the Charter’s specification of certain powers—specifically, Section 2303(b)(6)’s standard-setting authority—limited the TLC’s authority to act in manners beyond those precise enumerated ways. (2503–05.) As the majority noted, “[t]hat position simply ignores the broad language of the Charter that makes clear that the directive that 25 the TLC establish rates and standards . . . merely specifies one aspect of the agency’s broad mission.” (2489.) The First Department therefore reversed the grant of Appellants’ petition. Appellants then sought leave to appeal to this Court, which was granted by the First Department in October 2014. (2476–77.) ARGUMENT I. The Taxi and Limousine Commission Has Statutory Authority to Select a Single World-Class Vehicle as the Exclusive New York City Taxi. The TLC sought a world-class vehicle for a world-class city. It got one. In furtherance of its statutory responsibility for promulgating “an overall public transportation policy,” N.Y.C. Charter § 2300, the TLC enacted rules that required taxi owners to purchase a world-class vehicle rather than vastly inferior retail vehicles that would need to be “hacked up” for use as a taxi. The TLC achieved its objective of a world-class vehicle by using the powers granted it pursuant to New York City Charter Sections 2300 and 2303(b)(6) to develop forward-looking “standards of safety, and design, and comfort, convenience, noise and air pollution control and efficiency in the operation of vehicles.” With the help of Ricardo, Inc., the TLC evaluated proposed taxi vehicles against those standards and chose the NV200 taxi, a vehicle that is vastly superior to any and all retail vehicles used as taxis, a fact perhaps best demonstrated by its having at least 10 important taxi features that are not available on a single retail vehicle. The result is hardly surprising, of course, given the $50+ 26 million investment by Nissan in engineering resources to make a purpose-built taxi vehicle. Once the TLC identified the vehicle that met its world-class standards, it excluded from taxi service all other retail vehicles, as none even came close to the NV200 taxi. Indeed, for the TLC to have done otherwise likely would have been a dereliction of its duty under the Charter to provide for “safety,” “design,” “comfort,” and “convenience.” N.Y.C. Charter § 2303(b)(6). A. The TLC Has Statutory Authority to Exclude Vehicles from Taxi Service on the Basis of Inferior Features. “An administrative agency . . . is clothed with those powers expressly conferred by its authorizing statute, as well as those required by necessary implication.” City of N.Y. v. State of N.Y. Comm’n on Cable Television, 390 N.E.2d 293, 295, 47 N.Y.2d 89, 92 (N.Y. 1979) (“State of N.Y. Comm’n on Cable Television”). “This is especially true where . . . the Legislature has delegated administrative duties in broad terms, leaving the agency to determine what specific standards and procedures are most suitable to accomplish the legislative goals.” Mercy Hosp. of Watertown v. N.Y. State Dep’t of Soc. Servs., 590 N.E.2d 213, 217, 79 N.Y.2d 197, 203–04 (N.Y. 1992). New York City Charter Section 2300 sets forth the purposes of the TLC to ensure “the continuance, further development and improvement of taxi and limousine service in the city of New York,” and broadly grants the TLC the authority “to adopt and establish an overall public transportation policy governing 27 taxi . . . services.” See also N.Y.C. Charter § 2303(b)(9) (granting TLC responsibility for “[t]he development and effectuation of a broad public policy of transportation affected by this chapter as it relates to forms of public transportation in the city”). The only restriction on the TLC’s ability to further these goals is the restriction that “[a]dditional taxicab licenses may be issued from time to time only upon the enactment of a local law providing therefor.” N.Y.C. Charter § 2303(b)(4). Nothing else in the TLC’s authorizing legislation purports to limit the TLC’s broad ability to develop, improve, and regulate taxi service. See Matter of N.Y. City Comm. for Taxi Safety v. N.Y. City Taxi and Limousine Comm’n, 256 A.D.2d 136, 137, 681 N.Y.S.2d 509, 510 (1st Dep’t 1998) (describing TLC’s “broad grant of authority . . . to promulgate and implement a pervasive regulatory program for the taxicab industry”). Moreover, as the First Department Order noted (see 2481–82), since its inception the TLC has performed its broad duties with almost no further legislative guidance from the City Council. The only time that the City Council has ever directed how the TLC regulates taxi service was with the enactment of N.Y.C Administrative Code Section 19-533, which required the TLC to approve one or more hybrid electric vehicles. At no other point in the TLC’s nearly 45-year history has the City Council directed or limited the TLC in the implementation of its broad statutory mandate. Given the broad authority granted the TLC by the 28 Charter and the lack of any narrowing guidance from the City Council, it is clear that the TLC has been delegated “far-reaching control” to “implement[] a pervasive regulatory program.” State of N.Y. Comm’n on Cable Television, 390 N.E.2d at 295, 47 N.Y.2d at 93. In order to discharge this broad mandate, the New York City Charter specifies that the TLC has authority to set: Requirements of standards of safety, and design, comfort, convenience, noise and air pollution control and efficiency in the operation of vehicles and auxiliary equipment. N.Y.C. Charter § 2303(b)(6). This standard-setting power authorizes the TLC to develop requirements for taxi vehicles and to exclude vehicles that, in the TLC’s judgment, are inferior for taxi service. Section 2303(b)(6) does not require the TLC to approve any number of vehicles and does not limit the number of vehicles the TLC may exclude. Indeed, for decades, the TLC has excluded many, many vehicles from taxi service through minimum interior volume, legroom and seat depth, and maximum horsepower requirements. See Rules of the City of New York, Title 35, Ch. 67, § 67-05.1A(a)–(j). Given the TLC’s uncontestable authority to exclude any number of vehicles from taxi service if they do not meet the TLC’s standards, the TLC necessarily has the authority to exclude all vastly inferior vehicles from taxi service, even if that results in the approval of the one and only world-class taxi vehicle that is available. 29 B. The TLC’s Development of the ToT Vehicle Standards and Selection of the ToT Was Consistent with Its Authority Under the Charter. As Appellants acknowledge, the TLC unquestionably has the authority to set the standards that vehicles must meet to be approved as taxicab vehicles and, concomitant with that authority, has the ability to exclude vehicles not meeting those standards from taxi service. (See Appellants’ Brief at 16 (“This matter is not, and it never has been, about a challenge to the TLC’s authority to set appropriate standards for vehicles to be employed in the City’s taxi fleet.”).) The long and detailed process that went into the development of the Taxi of Tomorrow standards and led to the creation of the ToT vehicle unequivocally demonstrates that these actions were a normal exercise of the TLC’s standard-setting powers. Over seven years ago, the City and the TLC concluded that New York City deserved better than a fleet of repurposed “hacked-up” retail vehicles. Indeed, the City and TLC concluded that New York City deserved no worse than the best taxi ever produced—a vehicle purpose-built for taxi service with first-rate, taxi-specific safety features and custom-designed passenger and driver conveniences. Thus, the TLC deployed its regulatory authority set forth in Section 2300, 2303(b)(6), and 2303(b)(9) to develop standards for a “Taxi of Tomorrow” based on safety, design, comfort, convenience, and efficiency and evaluated proposed vehicles against 30 those standards. At the conclusion of that lengthy process, the City identified Nissan’s NV200 taxi proposal as superior to every other proposed taxi vehicle. The fact that, by adopting the ToT standards, the TLC excluded all but the single highest-performing vehicle from taxi service does not render this otherwise unobjectionable process outside the scope of the TLC’s regularly-exercised standard-setting powers. As Appellants admit, the TLC unquestionably may exclude any vehicle that does not meet its standards. It necessarily follows, therefore, that the TLC may exclude all vehicles that do not meet its standards, even if only one vehicle is left. Concluding otherwise would require the TLC— after deciding that only a single vehicle meets its exacting standards—to nonetheless approve vehicles that do not even come close. This conclusion would read all TLC standard-setting authority out of Section 2303(b)(6) and would interpret that statute to require that the TLC approve inferior taxis—in this case, to require the TLC to approve as taxis vehicles that lack most or all of the unique safety features and conveniences incorporated into the Taxi of Tomorrow. 11 This cannot be what was intended by the statutory scheme. Moreover, the use of rulemaking to select a single vehicle best meeting the TLC’s standards is not only consistent with the TLC’s statutory authority, but it also has in the past been the objective of TLC rulemaking. The TLC’s 2001 11 See supra Combined Statement of the Nature of the Case, Facts, and Procedural History, Part II.A. 31 passenger legroom and interior volume rules were tailored to the Ford Crown Victoria, the dimensions of which matched the minimum standards in the TLC’s rule. That rule resulted in the stretch Crown Victoria comprising 90 percent of the taxi fleet by 2005. (2067.) The appropriateness of standards excluding all but one vehicle from taxi service is not changed solely because the TLC developed its standards by issuing RFP requirements and evaluating RFP responses rather than by prescriptive rulemaking. “Where an agency has been endowed with broad power to regulate in the public interest,” the Court of Appeals has “not hesitated to uphold reasonable acts on its part designed to further the regulatory scheme.” State of N.Y. Comm’n on Cable Television, 390 N.E.2d at 295, 47 N.Y.2d at 92. Soliciting RFP responses and setting standards based on what the best available vehicles could meet was plainly a reasonable means to fulfill the TLC’s broad purpose of ensuring that the New York City taxi fleet satisfies the highest standards. Rather than guessing what standards could be met, the TLC and the City developed an extensive list of goals, solicited manufacturer proposals, and chose the one that, after $50+ million in development costs, best met those criteria. As a practical matter, had the TLC proceeded in any other manner, it almost certainly would have prevented the best vehicles from entering taxi service. The TLC’s RFP method encouraged vehicle manufacturers to design and propose high- 32 standard vehicles which otherwise would not have existed, enabling the TLC to realistically assess what standards could possibly be included in the TLC’s rules. Had the TLC set standards without first seeking proposals, it would have been limited to one of two choices: To set lower standards that would have allowed preexisting vehicles to serve as taxicabs, despite their inferior quality; or to set higher standards with the likelihood that no vehicle would be developed that could meet those high standards, given the extremely high cost of developing a vehicle meeting those standards and the extremely small market for such vehicles—at most, 13,000 taxicabs, and almost certainly less without a guarantee of exclusivity. By first issuing an RFP, the TLC used its leverage to encourage manufacturers to innovate and create a higher-performing vehicle than had ever been brought to market. In sum, the TLC’s decision to adopt standards approving for taxicab use only the best internal combustible engine vehicle—which the TLC itself helped to create—plus certain hybrids was well within its statutory authority to set standards for vehicle safety, comfort, and efficiency. To hold that such rulemaking was improper would require the TLC to approve vastly inferior vehicles as taxicabs, improperly reading non-textual procedural requirements into the TLC’s governing statutes. See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 524–25 (1978) (explaining that the United States Supreme Court has 33 “for more than four decades emphasized that the formulation of procedures was basically to be left within the discretion of the agencies”). C. The TLC Did Not Exceed Its Authority by Entering Into the VSA. In addition to arguing that the TLC exceeded its authority by setting standards excluding all inferior vehicles from taxi service, Appellants suggest that the TLC also exceeded its statutory authority by entering into the VSA with Nissan. But as the First Department Order noted, the TLC itself did not enter into the VSA with Nissan; rather, the VSA was agreed to by the New York City Department of Citywide Administrative Services pursuant to that agency’s authority to “procure, supply and manage contractual services . . . for the use of city agencies.” N.Y.C. Charter § 823(d). Appellants’ argument regarding the TLC’s authority to enter into the VSA is therefore completely irrelevant. Moreover, it is clear that the City itself acted well within its power in contracting with Nissan to provide ToTs to taxi owners that choose to purchase them. The City’s power to enter into contracts and to award contracts according to various modes of procurement cannot seriously be questioned. New York General City Law Section 20(1) permits the City “[t]o contract and be contracted with.” Chapter 13 of the New York City Charter governs the types of contract award procedures available to the City, such as competitive sealed bidding, N.Y.C. Charter §§ 318–20, sole source, id. § 321, and emergency procurement, id. § 315. 34 The City and TLC even have the power to compel taxi owners to enter into contracts with private parties to purchase and install taxi equipment and software required by TLC rules, including a credit card reader and GPS equipment. Alexandre v. N.Y.C. Taxi and Limousine Comm’n, No. 07 Civ. 8175(RMB), 2007 WL 2826952 (S.D.N.Y. Sept. 28, 2007). Most importantly, whether the VSA was a proper exercise of the City’s contracting power—or even of the TLC’s delegated powers—is completely irrelevant to the underlying question of whether the Revised ToT Rules were a proper exercise of the TLC’s delegated authority pursuant to Sections 2300 and 2303(b)(6). Nothing in the VSA is essential to the validity of the ToT Rule, and nothing in the VSA changes (a) the fact that the NV200 taxi is vastly superior to any vehicle the TLC has ever considered for taxi service, or (b) the fact that the NV200 taxi is the only vehicle meeting the standards set by the TLC for taxicab vehicles. Indeed, it is ironic that Appellants point to the VSA as evidence of the Taxi of Tomorrow program’s illegality because the City entered into that agreement to ensure that Nissan’s exclusivity does not reduce the reliability of taxi vehicles or quality of service. For example, the VSA ensures the availability of ToT service and parts (1292–93), penalizes Nissan for service and parts delays (1292–93), and guarantees that the ToT will have the vehicle features Nissan 35 agreed to provide, including an unprecedented 150,000 mile powertrain warranty (1345). It also is worth noting that in attacking the TLC’s ability to enter into the VSA, Appellants entirely mischaracterize the effect of that contract. First, nothing in the VSA “bind[s] medallion owners” to purchase the ToT. (Appellants’ Brief at 22 (internal quotation marks omitted).) Rather, the actual provisions of the VSA itself only require that the City make the Nissan NV200 taxi the exclusive non- hybrid taxi vehicle and require Nissan to “make available” those vehicles to taxi owners. (1273.) The VSA does not impose any obligations upon taxi owners; taxi owners are not parties to the agreement and cannot be held liable under it. And, of course, the VSA clearly does not “bind” medallion owners to purchase the ToT: They are free to instead purchase a hybrid meeting the TLC’s standards for such vehicles, including the Prius v, one of the most popular hybrids available for use as a taxicab even before the Hybrid Rule was adopted. (294, 2072.) Second, despite Appellants’ misleading contention to the contrary, the VSA does not “establish the non-negotiable price at which medallion owners must purchase” the ToT. (Appellants’ Brief at 1.) To the contrary, the VSA explicitly provides that Nissan may not “set the price for which Vehicles will be sold,” instead providing that “Authorized Dealers [will] negotiate the sales price with Qualified Purchasers.” (1277 (emphasis added).) Although the VSA sets the cap 36 on the MSRP in each year, the actual purchase price is negotiable, and the capped price protects taxicab owners by preventing dealers from setting excessively high prices. Nor do Appellants have any evidence that the capped price is in any way unfair. That is not surprising, as any trip to the Internet or to the New York Auto Show would show that the ToT has a stunning array of features for a vehicle anywhere near it price point. Furthermore, if a medallion owner is unhappy with the price offered by a Nissan dealer, he does not lack for bargaining power in the price negotiations: He always has the ability to purchase, instead of the ToT, a qualifying hybrid. II. The Selection of a Single Non-Hybrid Taxi Vehicle Is Consistent with the Separation of Powers Doctrine. The First Department correctly applied the four factor test set forth in Boreali v. Axelrod, 517 N.E.2d 1350, 71 N.Y.2d 1 (N.Y. 1987), in concluding that the ToT Rule does not violate the separation of powers doctrine. As the First Department found, the ToT Rule is consistent with the Legislature’s “clearly articulated . . . policy regarding the TLC’s assigned task, namely, the goal of ensuring and optimizing the comfort of riders, while protecting the public, the environment, the drivers, and the rights of medallion owners,” and therefore survives separation of powers scrutiny. (2497.) “The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow 37 administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation.” Med. Soc’y of State v. Serio, 800 N.E.2d 728, 734–35, 100 N.Y.2d 854, 865 (N.Y. 2003) (internal quotation marks omitted). “[T]here need not be a specific and detailed legislative expression authorizing a particular executive act as long as the basic policy decisions underlying the regulations have been made and articulated by the Legislature.” Bourquin v. Cuomo, 652 N.E.2d 171, 173, 85 N.Y.2d 781, 785 (N.Y. 1995) (internal quotation marks omitted); accord Citizens for an Orderly Energy Policy, Inc. v. Cuomo, 582 N.E.2d 568, 572, 78 N.Y.2d 398, 410 (N.Y. 1991) (“The Legislature is not required in its enactments to supply agencies with rigid marching orders . . . .”). “In other words, it is only when the Executive acts inconsistently with the Legislature, or usurps its prerogatives, that the doctrine of separation [of powers] is violated.” Bourquin, 652 N.E.2d at 173, 85 N.Y.2d at 785 (internal quotation marks and alteration omitted); see Citizens for an Orderly Energy Policy, 582 N.E.2d at 572, 78 N.Y.2d at 410. A. The TLC’s Selection of the ToT as the Exclusive Taxi Is Consistent with the Court of Appeals’ Separation of Power Jurisprudence. In Boreali, the Court of Appeals invalidated the New York State Public Health Council’s (“PHC”) indoor smoking ban on separation of powers grounds. Rather than defining a specific doctrinal test for separation of powers claims, Boreali articulated four “coalescing circumstances” indicating when “the difficult- 38 to-define line between administrative rule-making and legislative policy-making has been transgressed.” Boreali, 517 N.E.2d at 1355, 71 N.Y.2d at 11. First, Boreali explained that, in developing its indoor smoking regulations, the PHC weighed factors that it had no statutory authority to consider. Id. at 1355, 71 N.Y.2d at 11–12. Boreali pointed out that the PHC’s statutory mandate was limited to “matters affecting the . . . public health.” Id. at 1353, 71 N.Y.2d at 9 (internal quotation mark omitted). But the litany of waivers and exemptions in the PHC’s indoor smoking regulations—for bars, convention centers, and small restaurants—showed that the PHC had impermissibly balanced “the goal of promoting health against its social cost” absent “any legislative guidelines at all for determining how the competing concerns of public health and economic cost are to be weighed.” Id. at 1355, 71 N.Y.2d at 12. These exemptions showed that the PHC was not merely promoting “legislatively expressed goals” or implementing “legislative values.” Id. In light of this analysis, Boreali concluded—per its “second, and related, consideration”—that the “PHC did not merely fill in the details of broad legislation describing the over-all policies to be implemented,” but “wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance.” Id. at 1356, 71 N.Y.2d at 13. Accordingly, “the agency’s actions were 39 a far cry from the ‘interstitial’ rule making that typifies administrative regulatory activity.” Id. Third, Boreali observed that the Legislature had “repeatedly tried—and failed—to reach agreement [on banning indoor smoking] in the face of substantial public debate and vigorous lobbying.” Id. Boreali viewed these failures as evidence that “the goals and methods that should govern in resolving a society- wide health problem” were legislative questions. Id. Fourth, Boreali explained that the challenged PHC regulations required no “special expertise or technical competence” to develop. Id. at 1356, 71 N.Y.2d at 14. Rather, “the PHC drafted a simple code describing the locales in which smoking would be prohibited and providing exemptions for various special interest groups.” Id. Boreali concluded that “none of these circumstances, standing alone, is sufficient to warrant the conclusion” that the PHC’s regulations violated the separation of powers doctrine. Id. at 1355, 71 N.Y.2d at 11. But “all of these circumstances, when viewed in combination, paint a portrait of an agency that has improperly assumed for itself the open-ended discretion to choose ends.” Id. (internal quotation marks and alteration omitted). Since Boreali, the Court of Appeals has relied heavily on whether the challenged action is consistent with legislative policy to evaluate separation of 40 powers claims. One year after Boreali, the Court of Appeals explained in Campagna v. Shaffer, 536 N.E.2d 368, 370, 73 N.Y.2d. 237, 243 (N.Y. 1989), that “[a] key feature” of Boreali “was that the Legislature had never articulated a policy regarding the public smoking controversy.” Moreover, “the mere fact that the Legislature has enacted specific legislation in a particular field does not necessarily lead to the conclusion that broader agency regulation of the same field is foreclosed.” Consol. Edison Co. of N.Y., Inc. v. Dep’t of Envtl. Conservation, 519 N.E.2d 320, 323, 71 N.Y.2d 186, 193 (N.Y. 1988). “The key question in all [Boreali] cases is what did the Legislature intend?” Id. For example, in N.Y. State Health Facilities Ass’n, Inc. v. Axelrod, 569 N.E.2d 860, 77 N.Y.2d 340 (N.Y. 1991), the Court of Appeals upheld PHC standards requiring new applicants for nursing home licenses to admit a certain percentage of Medicaid patients based on local need. The Court of Appeals reasoned that the PHC had statutory authority to “establish[] and maintain[] standards” for nursing homes that “take into account the medical needs of all members of the public” regardless of economic status and to prevent discrimination in nursing home patient admissions. N.Y. State Health Facilities Ass’n, 569 N.E.2d at 863, 77 N.Y.2d at 347. The Court of Appeals thus concluded that “the basic policy decisions underlying the regulations”—to prevent discrimination against Medicaid patients—“have been made and articulated by the 41 Legislature,” and that “the appropriate means for achieving these ends . . . is well within the authority delegated to the agency.” Id. at 863, 77 N.Y.2d at 348. The court relegated its analysis of Boreali’s other considerations to a terse footnote. Id. at 864 n.2, 77 N.Y.2d at 348 n.2. Two years later, in Rent Stabilization Ass’n of N.Y.C., Inc. v. Higgins, 630 N.E.2d 626, 83 N.Y.2d 156 (N.Y. 1993), the Court of Appeals held that the New York State Division of Housing and Community Renewal did not violate the separation of powers by enlarging the class of “family members” entitled to succeed to a rent-regulated apartment upon death or departure of the tenant. The Court of Appeals held that the regulatory expansion of rent-regulation protection did not violate the separation of powers because there was a legislative policy of rent-regulation. The Court of Appeals concluded that “[a]djustment of the existing scheme in light of the agency’s technical competence is well within the proper rule-making function of this agency.” Rent Stabilization Ass’n of N.Y. City, Inc., 630 N.E.2d at 631, 83 N.Y.2d at 170. In 2003, in Med. Soc’y of State v. Serio, 800 N.E.2d 728, 731, 100 N.Y.2d 854, 860 (N.Y. 2003), the Court of Appeals held that Superintendent of Insurance regulations reducing time limits for filing no-fault auto insurance claims did not violate the separation of powers because the regulations were consistent with legislative policy. The Court of Appeals interpreted the absence of statutory 42 insurance filing time-limits not as evidence of the Superintendent’s lack of authority, but as evidence of “legislative preference to yield to administrative expertise in filling in an interstice in the statutory scheme.” Med. Soc’y of State, 800 N.E.2d at 735, 100 N.Y.2d at 866. Most recently, in Matter of Coalition of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene, 16 N.E.3d 538, 23 N.Y.3d 681 (2014), the Court of Appeals struck down a rule by the New York City Board of Health prohibiting food service establishments from selling sugary drinks in containers of more than 16 fluid ounces. In contrast to those cases where agency action was found not to violate the separation of powers doctrine, the Court found dispositive the fact that there was no indication of any legislative preference whatsoever. The Court found that because the City Council had not articulated or considered health policy goals associated with the consumption of sugary beverages, the regulation— which involved “complex value judgments concerning personal autonomy and economics”—was an entirely “new policy choice” that “did not simply fill in details guided by independent legislation.” Id. at 548, 23 N.Y.3d at 699-700. As these Court of Appeals cases show, where an agency’s regulations are consistent with the statute’s underlying policy goals and do not involve consideration of issues outside of those delegated to the agency’s authority, there is no separation of powers violation. Because the Revised ToT Rules are consistent 43 with the clearly-articulated legislative policy of only approving vehicles meeting the highest standards, they do not violate this doctrine. B. The Revised ToT Rule Is Consistent with the Legislative Policy of Only Approving the Safest, Most Convenient, Comfortable, and Efficient Vehicles. Section 2303(b)(6) of the New York City Charter is a clear articulation of legislative policy regarding the TLC’s assigned task: to approve safe, convenient, comfortable, and efficient vehicles. As that section’s mandate amply illustrates, “the basic policy decisions underlying the regulations have been made and articulated by the” City Council. Bourquin, 652 N.E.2d at 173, 85 N.Y.2d at 785. Implementing these goals is left entirely to the TLC’s discretion. The Charter “fix[es] a primary standard” and grants the TLC authority to “fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation.” Med. Soc’y of State, 800 N.E.2d at 734–35, 100 N.Y.2d at 865 (internal quotation mark omitted). The objective of the ToT Rule challenged in this proceeding was to find the taxi vehicle that met the highest standards of safety, design, comfort, convenience and efficiency, and to exclude all other taxi vehicles based on their corresponding inferiority. (837–38.) This objective is not even arguably inconsistent with legislative policy. By developing taxicab standards as demanded by Section 2303(b)(6), and by relying only on criteria it has the statutory power to consider— 44 safety, design, comfort, convenience, and efficiency—the TLC acted consistently with legislative policy, and did not “creat[e] its own comprehensive set of rules without benefit of legislative guidance.” Boreali, 517 N.E.2d at 1356, 71 N.Y.2d at 13. In similar circumstances, the Court of Appeals has declined to invalidate agency rules and executive actions under Boreali. See Med. Soc’y of State, 800 N.E.2d at 731, 100 N.Y.2d at 860; N.Y. State Health Facilities Ass’n, 569 N.E.2d at 863, 77 N.Y.2d at 347–48; Rent Stabilization Ass’n of N.Y. City, 630 N.E.2d at 631, 83 N.Y.2d at 170. This analysis is unchanged by the fact that the ToT Rule designated a single, vastly superior taxi vehicle and excluded all others that did not even come close to meeting the same standards. Because “the basic policy decisions underlying the regulations have been made and articulated by the Legislature . . . . [t]he choice of the appropriate means for achieving these ends, including the adoption of regulations, is well within the authority delegated to the agency.” N.Y. State Health Facilities Ass’n, 569 N.E.2d at 863, 77 N.Y.2d at 348; see Bourquin, 652 N.E.2d at 175, 85 N.Y.2d at 788 (“It is not the role of this Court to dictate how public policy should be implemented, but only to state when and how the Constitution has been offended.”). This maxim is “especially true” where “the Legislature has delegated administrative duties in broad terms, leaving the agency to determine what specific standards and procedures are most suitable to 45 accomplish the legislative goals.” Mercy Hosp. of Watertown, 590 N.E.2d at 217, 79 N.Y.2d at 203–04. Merely because the City Council did not expressly authorize the TLC to select a single taxi vehicle that best meets superior standards of safety, design, comfort, convenience, and efficiency does not mean the TLC has overstepped its authority by selecting such a vehicle. “[T]he Legislature is not required in its enactments to supply agencies with rigid marching orders and the legislative branch may, while declaring its policy in general terms by statute, endow administrative agencies with the power and flexibility to fill in details and interstices and to make subsidiary policy choices consistent with the enabling legislation.” Coalition of Hispanic Chambers of Commerce, 16 N.E.3d at 548, 23 N.Y.3d at 700 (internal quotation marks omitted). Indeed, the Court of Appeals has interpreted legislative silence in these circumstances as evidence of legislative deference to an agency’s choice of means to implement legislative policy. See Med. Soc’y of State, 800 N.E.2d at 735, 100 N.Y.2d at 866 (interpreting absence of statutory insurance filing time-limits as evidence of “legislative preference to yield to administrative expertise in filling in an interstice in the statutory scheme”). Because the TLC is not expressly barred from selecting the single best taxi vehicle based on criteria it is authorized to consider, “the legislative preference to yield to administrative expertise,” id., is controlling here, and defeats Appellants’ separation of powers claim. 46 C. The City Council Has Never Tried—Much Less Failed—to Pass Legislation Designating a Single Taxi Vehicle. The Boreali Court recognized that the State Legislature had repeatedly tried and failed to enact legislation instituting an indoor smoking ban “in the face of substantial public debate and vigorous lobbying by a variety of interested factions.” Boreali, 517 N.E.2d at 1352, 1356, 71 N.Y.2d at 7, 13 (noting that “some 40 bills on the subject” had been introduced in the preceding 12 years). Boreali interpreted this legislative action as an indication that indoor smoking required “making choices among competing ends” and was thus a legislative— rather than an administrative—question. Id at 1356, 71 N.Y.2d at 13. Unlike in Boreali, there is no history of the City Council’s considering— much less failing to enact—a policy similar to that in the ToT Rule. The City Council has not once considered or voted on any proposal to restrict taxi vehicles to a single, superior purpose-built taxi and has not once considered or voted on any proposal to restrict the TLC from doing the same. The City Council has expressed no view on the wisdom of the Taxi of Tomorrow concept, by implication or otherwise. This Boreali factor weighs squarely against invalidating the ToT Rule. See Concerned Home Care Providers, Inc. v. N.Y. State Dep’t of Health, 969 N.Y.S.2d 743, 754 (N.Y. Sup. Ct. 2013) (refusing to invalidate Executive Order and Department of Health regulations because, “[u]nlike the regulations in Boreali, the Executive Order and DOH regulations did not go into effect after numerous 47 attempts and failures to enact legislation. Rather, they were never once voted upon by the Legislature . . . ”). Indeed, the only formal City Council enactment related to taxi vehicle approval is New York Administrative Code Section 19-533, which the City Council enacted in 2005. See N.Y. City Local Law 72/2005. Section 19-533 requires the TLC to approve “one or more” hybrid vehicle “model or models” as a taxi. But neither that statute nor its legislative history opines at all on the limits or requirements with respect to the TLC’s approval of non-hybrid vehicles. Section 19-533 merely requires the City to have at least one hybrid vehicle available; it does nothing to suggest that the City must have more than one non-hybrid vehicle and, in fact, does not even require more than a single approved vehicle at all, so long as that single vehicle is a hybrid. Nor does Section 19-533 define the criteria for selecting which “one or more” hybrid vehicles the TLC must approve or identify which hybrid “model or models” are suitable. Section 19-533’s failure to address whether the TLC may select the single best taxi vehicle weighs against invalidation. As the Court of Appeals has held on at least two occasions, the legislature’s failure to address an issue is no basis to invalidate a rule on separation of powers grounds. See Bourquin, 652 N.E.2d at 175, 85 N.Y.2d at 787–88 (“Legislative inaction, because of its inherent ambiguity, affords the most dubious foundation for drawing positive inferences.” (internal quotation marks omitted)); 48 Clark v. Cuomo, 486 N.E.2d 794, 798, 66 N.Y.2d 185, 190–91 (N.Y. 1985) (same). Finally, and for similar reasons, the City Council’s debating a local law requiring all taxicabs to be accessible to the disabled is no evidence that the ToT Rule violates the separation of powers doctrine. As explained above, the Court of Appeals has declined to hold a regulation unlawful on the basis of isolated legislative debates regarding the regulation’s subject matter. Further, any legislative policy favoring accessible taxi vehicles is consistent with the TLC rule, as a wheelchair accessible Taxi of Tomorrow must be made available under the terms of the VSA. D. The TLC’s Expertise Was Essential to the Development of Taxi of Tomorrow Standards and the Selection of the Nissan NV200 Taxi. The Court of Appeals has explained that “the traditional agency role” is to apply “technical expertise to implement legislative goals in situations too complex and detailed to be dealt with individually by the Legislature.” Consol. Edison Co. of N.Y., 519 N.E.2d at 322, 71 N.Y.2d at 192. The TLC’s authority to set vehicle standards is the archetype of this “traditional agency role.” The City Council has neither the time nor expertise to (1) develop vehicle standards that meet its legislative goals, and (2) determine whether dozens of vehicle models produced each year meet those standards. Precisely for this reason, the City Charter grants the TLC authority to set vehicle standards and exclude noncompliant vehicles. See 49 N.Y. City Charter § 2303(b)(6); see also Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. Jorling, 152 Misc.2d 405, 408, 577 N.Y.S.2d 346, 348 (“Jorling”) (upholding Department of Environmental Conservation vehicle emissions standards in light of “the technical nature of the subject” (internal quotation mark omitted)). As the hundreds of pages of Taxi of Tomorrow documents in this record show, the TLC’s expertise in the taxi industry and in the taxi vehicle market was essential to the development of Taxi of Tomorrow standards and selection of the proposal that best achieved those standards. The Taxi of Tomorrow RFP alone consisted of 67-pages of detailed vehicle requirements that reflected typical taxi duty cycles and their vehicle performance demands, including “throttle pedal operations, gear shifts and launch/brake events” (839), vehicle noise and harshness standards (865), fuel economy and safety requirements (871–72), and vehicle ergonomic requirements (863). The evaluation criteria for Taxi of Tomorrow proposals consisted of dozens of vehicle and manufacturer characteristics related to vehicle safety, design, comfort, convenience, and efficiency. (972–76.) Indeed, these tasks were so complex that the City retained the Ricardo consulting firm to advise the TLC at virtually every stage of the Taxi of Tomorrow program’s development. See Jorling, 152 Misc.2d at 411, 577 N.Y.S.2d at 350 (upholding Department of Environmental Conservation vehicle emissions standards and 50 explaining that agency “engaged the resources of an independent consulting firm to assess expected results” of regulation). These technical vehicle standards notwithstanding, evaluation under Boreali of whether the TLC’s expertise was necessary to the challenged ToT Rule is not limited to technical expertise. An agency’s experience in a particular industry or area of policy is sufficient. For example, in Med. Soc’y of State, 800 N.E.2d at 733, 100 N.Y.2d at 864, this Court concluded that Superintendent of Insurance regulations did not violate the separation of powers because, inter alia, those regulations reflected the Superintendent of Insurance’s “special competence and expertise with respect to the insurance industry.” It is undeniable that the TLC has “special competence and expertise” with respect to the taxi industry and that it is the agency most capable of assessing the vehicle features necessary to ensure that New York City taxis are safe, comfortable, convenient, and efficient. The TLC has had regulatory authority over the taxi industry since 1971, and since that time has been intimately involved in evaluating the suitability of vehicles for taxi service. The City Council’s granting of authority to the TLC to set standards for taxi vehicles is itself evidence of the TLC’s expertise with respect to taxi vehicles and their features. The ToT Rule challenged in this proceeding is thus a far cry from the “simple” exception-laden code describing prohibited smoking areas at issue in Boreali, 517 N.E.2d at 1356, 51 71 N.Y.2d at 14, and the beverage portion cap rule at issue in Coalition of Hispanic Chambers of Commerce, 16 N.E.2d 538, 23 N.Y.3d 681, both of which involved balancing of factors beyond the statutory authority and competence of the regulating agency. E. The Court of Appeals’ Recent Decision in Coalition of Hispanic Chambers of Commerce Supports the Appellate Division’s Determination that the TLC Did Not Violate the Separation of Powers Doctrine. Last summer, this Court reaffirmed the Boreali standard in striking down a New York City Board of Health rule limiting the size of sugary drinks that could be sold by food service establishments in New York City. See Coalition of Hispanic Chambers of Commerce, 16 N.E.3d 538, 23 N.Y.3d 681. In doing so, the Court of Appeals affirmed both the result and the reasoning of an Appellate Division decision upon which the First Department panel in this case heavily relied in determining that the ToT Rule did not violate separation of powers. Although Appellants appear to suggest that the Coalition of Hispanic Chambers of Commerce opinion somehow changes the Boreali analysis, the Court of Appeals in fact adopted the very reasoning used by the lower court in that case, reaffirming the principles that mandate rejection of Appellants’ claim here. The Board of Health in Coalition of Hispanic Chambers of Commerce adopted the large soda ban based on its authority to “add to and alter, amend or repeal any part of the health code, . . . [to] publish additional provisions for 52 security of life and health in the city and [to] confer additional powers on the [Department of Health and Mental Hygiene] not inconsistent with the constitution, laws of this state or this charter.” Id. at 544, 23 N.Y.2d at 694. The Court of Appeals struck down the regulation, finding that this grant of authority provided no basis for the large soda ban rule, and finding that, like the smoking ban at issue in Boreali, the large soda ban involved the complex weighing of competing interests and therefore constituted legislative policy-making divorced from any statutory grant of authority. The Court first found that the Board of Health improperly considered factors that it did not have statutory authority to consider, such as “the economic consequences associated with restricting profits by beverage companies and vendors, tax implications for small business owners, and personal autonomy with respect to the choices of New York City residents concerning what they consume.” Id. at 547, 23 N.Y.3d at 698. The Court determined that by weighing these myriad factors, the decision to enact the rule “entailed difficult and complex choices between broad policy goals—choices reserved to the legislative branch.” Id. at 547, 23 N.Y.3d at 698. With respect to the second Boreali factor, the Court noted there was no legislation concerning the consumption of sugary beverages that the large soda ban was designed to supplement. Id. at 548, 23 N.Y.3d at 699– 700. Without any such guidance from the legislature, the choices made by the Board of Health “were far from subsidiary,” and instead “reflect[ed] a new policy 53 choice.” Id. at 548, 23 N.Y.3d at 700. Ultimately, the overarching question examined by the Coalition of Hispanic Chambers of Commerce court was, as in all Boreali cases, “whether the challenged regulation attempts to resolve difficult social problems” “by making choices among competing ends” without “‘any legislative guidelines at all for determining how the competing’” interests involved are to be weighed. Coalition of Hispanic Chambers of Commerce, 16 N.E.3d at 546–47, 23 N.Y.3d at 697–98 (quoting Boreali, 517 N.E.2d at 1355, 71 N.Y.2d at 12). Nothing in the Coalition of Hispanic Chambers of Commerce decision breaks new ground or changes the Boreali rule. The Court of Appeals’ ruling, in fact, was entirely consistent with the long line of cases applying Boreali. Unlike in cases upholding regulations against Boreali challenges, the Court found no “basic policy decisions underlying the regulations” that were “made and articulated by the Legislature,” N.Y. State Health Facilities Ass’n, 569 N.E.2d at 863, 77 N.Y.2d at 348, nor any clear indication of “legislative preference to yield to administrative expertise in filling in an interstice in the statutory scheme,” Med. Soc’y of State, 800 N.E.2d at 735, 100 N.Y.2d at 866. Rather, where the administrative body’s statutory authorization was completely silent about the policy goals at issue, and the challenged action was clearly a policy decision reserved for the legislature, Boreali has always mandated the rule’s invalidation. 54 Here, by contrast, the basic policy decisions underlying the regulations were clearly articulated by the City Council, and the City Council had expressly provided a statutory framework within which it allowed the TLC to regulate unimpeded by further legislative direction. Unlike the statutory authority granted to the Board of Health in Coalition of Hispanic Chambers of Commerce, which said nothing about sugary beverages at all, the TLC’s statutory authorization explicitly granted it the authority to set standards for vehicle “safety, and design, comfort, convenience, noise and air pollution control and efficiency,” N.Y.C. Charter § 2303(b)(6), which is precisely what the TLC did in implementing the ToT Rule. The fact that the Charter may not have provided an exact roadmap for how to effectuate this task is irrelevant; as the Coalition of Hispanic Chambers of Commerce court itself noted, “the legislative branch may, while declaring its policy in general terms by statute, endow administrative agencies with the power and flexibility to fill in details and interstices and to make subsidiary policy choices consistent with the enabling legislation.” Coalition of Hispanic Chambers of Commerce, 16 N.E.3d at 548, 23 N.Y.3d at 700 (internal quotation marks omitted). Moreover, in this case, unlike in Coalition of Hispanic Chambers of Commerce, there were no policy considerations that the TLC had to balance, and there was certainly no difficult societal choice. The choice simply was whether it 55 was better to have residents and visitors ride in taxi vehicles that have been crash- tested with the partition installed, and that have cavernous rear leg room with an extra fourteen inches of space, rear HVAC controls, a panoramic skyroof, exterior passenger exit warning lights, and a host of other exclusive features, or whether to have them ride in taxis that lack these features. Only the taxi fleet owners who brought this appeal and never ride or drive in taxis could possibly consider that a “choice.” Moreover, even if the TLC did have to weigh some costs and benefits, the TLC used only those criteria explicitly provided by § 2303(b)(6) in furthering its legislatively-directed policy goals—unlike the Board of Health in Coalition of Hispanic Chambers of Commerce, which considered criteria completely outside of its legislative mandate in order to create a brand new policy without any legislative direction. Nothing in Coalition of Hispanic Chambers of Commerce, therefore, alters the propriety of the First Department’s analysis in this case, or suggests that the TLC’s rulemaking violated the separation of powers doctrine. That case merely reaffirmed the law applied by the First Department in upholding the ToT Rule, and confirmed that where an agency acts to further general policy goals set by the legislature—even where the legislature did not provide the agency with “rigid marching orders,” Coalition of Hispanic Chambers of Commerce, 16 N.E.3d at 56 548, 23 N.Y.3d at 700 (internal quotation marks omitted)—it acts validly and without any constitutional infirmity. CONCLUSION For the foregoing reasons, Respondents-in-Intervention-Respondents Nissan Taxi Marketing and Nissan North America respectfully request that this Court affirm the judgment of the New York State Supreme Court, Appellate Division, First Department, and dismiss Appellants’ Verified Article 78 and Declaratory Judgment Petition. 57 Dated: March 6, 2015 New York, New York Respectfully submitted, ___________________________ Peter J. Brennan Peter J. Brennan JENNER & BLOCK LLP 353 N. Clark Street Chicago, Illinois 60654-3456 Tel: 312-222-9350 Fax: 312-527-0484 pbrennan@jenner.com and Justin O. Spiegel JENNER & BLOCK LLP 919 Third Ave, 37th Floor New York, New York 10022-3908 Tel: 212-891-1600 Fax: 212-909-0825 jspiegel@jenner.com Attorneys for Respondents-in- Intervention-Respondents