Tenth Circuit Adopts Two‑Step Safety-Exception Test Under the FAAAA/ADA and Affirms That Delay Can Defeat Irreparable Harm: Colorado Motor Carriers Association v. Town of Vail

Introduction

This published Tenth Circuit decision addresses the tension between federal preemption of local trucking regulations and municipal authority to protect public safety in pedestrian spaces. The Town of Vail adopted and later amended an ordinance restricting most motor-vehicle access to its pedestrian malls. The amendment eliminated an exemption for high-volume commercial carriers (HVCCs), shifting deliveries to a Town-approved contractor using smaller carts or to foot delivery.

The Colorado Motor Carriers Association (CMCA) sued, seeking a preliminary injunction. The district court enjoined the amended ordinance but declined to enjoin the original ordinance. On appeal, the Tenth Circuit:

• Reversed the preliminary injunction against the amended ordinance, holding that the ordinance likely falls within the safety exceptions to preemption in the Federal Aviation Administration Authorization Act (FAAAA) and the Airline Deregulation Act (ADA).
• Affirmed the denial of a preliminary injunction against the original ordinance because CMCA’s year-long delay in suing undermined the showing of irreparable harm.

The panel thus clarifies two significant doctrines: (1) the standard for applying the FAAAA/ADA “safety exception” to local vehicle regulations affecting carriers; and (2) how delay can defeat irreparable harm in the preliminary-injunction context. Judge Phillips dissented in part, agreeing with the governing legal test but concluding that Vail’s amended ordinance lacked the necessary logical nexus to safety.

Summary of the Judgment

• Preemption Framework: The FAAAA and ADA broadly preempt state and local regulation of motor carriers’ prices, routes, and services. Both contain safety exceptions for “safety regulatory authority of a State with respect to motor vehicles.”
• Governing Test Adopted: The Tenth Circuit adopts the two-step inquiry used by the Second, Fifth, and Ninth Circuits to determine when a local regulation is “genuinely responsive to safety concerns”:
  • Step 1: Was the regulation motivated by legitimate safety concerns?
  • Step 2: Is there a logical nexus between the regulation and those safety concerns?
• Application to Vail’s Amended Ordinance: The ordinance regulates “with respect to motor vehicles” and is genuinely responsive to safety concerns. The Town’s safety motivation is supported by text, history, pilot-program experience, and sworn testimony. A logical nexus exists between reducing large box trucks in pedestrian malls and enhancing pedestrian and emergency access safety, even without statistical injury data, and even though some other large vehicles remain exempt.
• Standard of Review: The Tenth Circuit reviews preliminary injunction rulings for abuse of discretion, with de novo review for legal conclusions and mixed questions premised on an incorrect legal standard. It held the district court applied an overly demanding nexus inquiry and insufficiently deferred to municipal policymaking absent pretext.
• Irreparable Harm and Delay: Courts disfavor injunctions that alter the status quo. CMCA’s more-than-a-year delay in challenging the original ordinance undercut its claim of irreparable harm. Delay is not categorically dispositive, but here it was enough to deny preliminary relief.
• Disposition: Reversed and remanded with instructions to dissolve the injunction against the amended ordinance; affirmed the denial of an injunction against the original ordinance.

Analysis

Precedents Cited and Their Influence

• City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424 (2002)
  • Held that the FAAAA’s safety exception preserves traditional state and local police power over motor-vehicle safety and introduced the “genuinely responsive to safety concerns” standard.
  • Influence: Anchors the two-step analysis. The panel rejects arguments that Ours Garage is obsolete, invoking the rule that only the Supreme Court may overrule its own precedents (Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989)).
• Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136 (2d Cir. 2006); United Motorcoach Ass’n, Inc. v. City of Austin, 851 F.3d 489 (5th Cir. 2017); California Tow Truck Ass’n v. City & County of San Francisco, 693 F.3d 847 (9th Cir. 2012); Galactic Towing, Inc. v. City of Miami Beach, 341 F.3d 1249 (11th Cir. 2003)
  • Each embraced or applied the “genuinely responsive” test, with a two-step approach (motivation and nexus) and a deferential posture unless safety is pretext for economic regulation.
  • Influence: The Tenth Circuit aligns with this multi-circuit consensus, formally adopting the two-step test and deference principles.
• UPS v. Flores-Galarza, 385 F.3d 9 (1st Cir. 2004)
  • Preempted Puerto Rico excise-enforcement provisions lacking a motor-vehicle safety connection.
  • Influence: Illustrates the limiting principle—safety exception requires a genuine motor-vehicle safety connection, not just any carrier regulation.
• VRC LLC v. City of Dallas, 460 F.3d 607 (5th Cir. 2006)
  • Upheld a safety regulation without empirical studies; legislative intent and experience can suffice.
  • Influence: Supports deference and the notion that “safety exception is concerned with legislative intent, not legislative effectiveness.”
• Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)
  • Interpreted “relating to” broadly; the panel equates “with respect to” with “relating to,” confirming the breadth of the safety-exception gateway when a rule concerns motor vehicles.
• Ye v. GlobalTranz Enters., Inc., 74 F.4th 453 (7th Cir. 2023); Aspen Am. Ins. Co. v. Landstar Ranger, Inc., 65 F.4th 1261 (11th Cir. 2023)
  • Reinforce that “with respect to motor vehicles” is broad—requiring a connection to motor vehicles.
• FCC v. Beach Communications, Inc., 508 U.S. 307 (1993)
  • Recognizes legislative “leeway to approach a perceived problem incrementally.”
  • Influence: Supports the majority’s rejection of an “all or nothing” critique—Vail didn’t need to ban every large vehicle to have a safety nexus.
• North Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982)
  • Allows consideration of postenactment developments bearing on scope and purpose.
  • Influence: Permits reliance on the Police Chief’s post-adoption emails about the safety purpose.
• Winter v. NRDC, 555 U.S. 7 (2008); Free the Nipple–Fort Collins v. City of Fort Collins, 916 F.3d 792 (10th Cir. 2019); Schrier v. Univ. of Colo., 427 F.3d 1253 (10th Cir. 2005); Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016); Ng v. Bd. of Regents, 64 F.4th 992 (8th Cir. 2023); RoDa Drilling Co. v. Siegal, 552 F.3d 1203 (10th Cir. 2009)
  • Supply the preliminary-injunction standards, the “status quo” principle, the heightened standard for injunctions altering the status quo, and the role of delay in undercutting irreparable harm.
• Trans World Airlines, Inc. v. Mattox, 897 F.2d 773 (5th Cir. 1990)
  • CMCA invoked it to argue for a presumption of irreparable harm from likely success on preemption; the panel rejected that reading and, alternatively, found any presumption rebuttable by delay.
• Chhetri v. United States, 823 F.3d 577 (11th Cir. 2016); Pornomo v. United States, 814 F.3d 681 (4th Cir. 2016)
  • Cited to emphasize regulators’ expertise in safety determinations for motor carriers.

Legal Reasoning

1) The FAAAA/ADA Safety Exception and the Two-Step Test

The FAAAA and ADA preempt state and local enactments “related to” or affecting carriers’ prices, routes, or services. The safety exceptions, however, save exercises of “safety regulatory authority” “with respect to motor vehicles.” Relying on Ours Garage and the consensus among other circuits, the Tenth Circuit adopts a two-step inquiry to determine whether a regulation is “genuinely responsive to safety concerns”:

• Safety Motivation: Assess text, legislative history, and contextual materials (including officials’ statements) to determine whether safety was a real—though not necessarily exclusive—purpose.
• Logical Nexus: Determine whether the record shows an “obvious and logical” connection between the regulated means and the articulated safety concerns, deferring to local policy choices absent indicia of pretext or discrimination.

The court emphasizes breadth at both gateways:

• “With respect to motor vehicles” is read synonymously with “relating to,” requiring only a meaningful connection to motor vehicles.
• “Genuinely responsive” does not require the best or most comprehensive safety measure, and empirical injury data is not a prerequisite; legislative intent and policymaker experience can suffice.

2) Applying the Test to Vail’s Amended Ordinance

Regulation “with respect to motor vehicles.” The ordinance’s operative provisions are titled and aimed at restricting “vehicular traffic” in the pedestrian malls. That it allocates access based on contractor approval or user classifications does not remove it from the vehicle-safety context. The court thus rejects CMCA’s contention that the ordinance regulates only “who” may deliver rather than motor vehicles themselves.

Safety motivation. The Town identified pedestrian safety and emergency access in the text and findings. The record included:

• Police Chief Kenney’s testimony that safety drove the project and that a pilot program restricting large trucks improved safety.
• Evidence of near-miss incidents and at least one pedestrian sideswipe by a delivery truck.
• Post-adoption communications reiterating that the Town’s goal was a safe pedestrian environment.

The presence of other goals (aesthetics, “guest experience”) does not negate safety motivation; mixed motives are permissible.

Logical nexus. The panel finds a clear safety connection:

• Frequent operation of large box trucks in crowded pedestrian malls creates visibility, lane, and expectation hazards for pedestrians not anticipating vehicles, and can impede emergency response.
• Channeling deliveries to a contractor using smaller motorized carts places drivers “eye to eye” with pedestrians and reduces obstruction risks, much like carts in airport terminals.
• Municipalities may proceed incrementally; retaining exceptions (e.g., for buses, armored cars, waste vehicles) does not sever the safety nexus, particularly when the Town is exploring further adjustments.
• Courts should defer to local safety expertise absent signs of pretext (e.g., economic protectionism disguised as safety) or discriminatory targeting. No such showing was made here; the “single-contractor” model was a means to a safety end, not the end itself.

Standard of review. The court treats the district court’s nexus analysis as applying too exacting a standard and insufficiently deferring to policymaking discretion, thus warranting de novo correction.

3) Preliminary Injunctions: Status Quo, Delay, and Irreparable Harm

On the original ordinance, CMCA sought to upset an established status quo—more than a year had passed between enactment and suit. Such “disfavored” injunctions require a heightened showing. While delay does not categorically bar injunctive relief, an unreasonable delay “undercuts” irreparable harm. CMCA’s justification (a change in enforcement against a single member, FedEx Freight) did not explain the delay as to the broader membership. The district court thus acted within its discretion in denying preliminary relief.

The panel also rejects the notion that likely success on express preemption creates a presumption that the other Winter factors are satisfied. Even if such a presumption existed, the Town’s showing of delay would rebut it.

Impact

A. Federal Preemption and Local Safety Regulation

• Controlling Test in the Tenth Circuit: The court formally embraces the two-step “genuinely responsive” analysis used by the Second, Fifth, Ninth, and Eleventh Circuits. Litigants now have a clear framework for arguing safety-exception cases in the Tenth Circuit.
• Deference to Policymaking: Absent evidence that a municipality is disguising economic regulation as “safety,” courts will defer to reasonable, experience-based judgments—even without statistical injury data or the “best possible” safety design.
• Owner- or User-Based Access Schemes: A local rule can qualify as a vehicle-safety regulation even if it differentiates by operator (e.g., contractor approval) rather than by vehicle size or type, so long as the ordinance concerns vehicular access and the record supports a safety aim and nexus.
• Incrementalism Endorsed: Municipalities need not eliminate every comparable risk at once. Mixed exemptions (for buses, armored cars, waste trucks) will not doom a safety nexus if the core measure addresses a significant safety hazard.

B. Municipal Delivery Models in Pedestrian Areas

• Exclusive Contractor Models: A single-operator or approved-contractor plan can survive preemption scrutiny when justified as a safety means (e.g., using smaller carts, regulated routes/times, trained personnel). However, municipalities should build a record showing safety rationale and safeguards to deter pretext allegations.
• Record-Building Best Practices:
  • Make express findings of safety hazards specific to the environment (crowding, sightlines, lack of typical traffic controls, emergency access impediments).
  • Document pilot programs, near-miss reports, responder testimony, and operational observations.
  • Explain why exemptions do not undermine safety and/or outline plans for iterative improvement.
  • Where feasible, codify key safety constraints (e.g., cart size, speed limits, delivery windows) in the ordinance or incorporated standards rather than relying solely on contract terms.

C. Litigation Strategy for Carriers and Associations

• Challenging Safety Exception:
  • Focus on pretext indicators: discriminatory targeting, revenue/economic aims, or carve-outs favoring local incumbents without safety justification.
  • Undermine nexus: show that similarly risky vehicles are permitted in comparable volumes and that the regulation’s operation does not reduce salient risks (as the dissent emphasizes).
  • Highlight ordinance text if safety-critical limits appear only in mutable contracts, supporting the argument that the ordinance itself lacks a safety tether.
• Seeking Preliminary Relief:
  • File promptly; document why any delay was unavoidable or reasonable (e.g., evolving enforcement).
  • Demonstrate concrete, imminent irreparable harms beyond monetary loss (e.g., lost goodwill, unrecoverable compliance costs, immediate route disruptions jeopardizing safety/compliance elsewhere).

D. Open Questions and Cautions

• Contract vs. Ordinance: The majority relied in part on testimony that the contractor uses small carts. The dissent warns that contract terms can change tomorrow; municipal drafters should consider embedding safety-critical limits in ordinance text or referenced standards to fortify the nexus.
• Constitutional Constraints: The panel did not decide whether the exclusive-contractor model raises independent constitutional issues (e.g., equal protection or dormant Commerce Clause). Municipalities should vet exclusive franchises under state law and constitutional doctrines separate from preemption.
• Scope of Deference: While deference is pronounced, it is not boundless. Evidence of discriminatory intent, economic protectionism, or arbitrary line-drawing can trigger “closer scrutiny.”

Complex Concepts Simplified

• Preemption: Federal law overrides state/local rules that relate to motor carriers’ prices, routes, or services. The FAAAA/ADA do this broadly.
• Safety Exception: A carve-out that preserves local “safety regulatory authority” over motor vehicles. If a local rule truly aims at motor-vehicle safety and has a logical safety connection, it is not preempted.
• “With respect to motor vehicles”: Read broadly. If the ordinance regulates vehicular traffic or vehicle use in a meaningful way, it meets this requirement—even if it distinguishes by operator/permit.
• “Genuinely responsive to safety concerns”: Courts look for real safety motivations and a logical connection between the regulation and safety, not perfect effectiveness or comprehensive bans.
• Status Quo and Preliminary Injunctions: The goal is to preserve conditions as they existed just before the dispute. If an injunction would change that status quo, courts require a stronger showing on the injunction factors.
• Irreparable Harm and Delay: Waiting too long to sue suggests harm is not urgent or irreparable. Delay alone doesn’t always defeat an injunction, but it can be decisive unless reasonably explained.
• Standard of Review: Appellate courts defer to district courts on preliminary injunctions (abuse of discretion), but review legal conclusions and applications of the wrong standard anew (de novo).

The Dissent’s View

Judge Phillips agrees with the majority’s two-step test but parts ways on the nexus analysis. He emphasizes that Vail’s ordinance sorts access by operator identity, not by vehicle size or risk, and permits the Town-approved contractor (or any future approved contractor) to operate the same large vehicles in the pedestrian malls. In his view, this undercuts the safety connection because:

• The ordinance text itself does not restrict vehicle size or frequency; safety-critical limits appear only in a changeable contract.
• Major HVCCs had no pedestrian injuries or citations on record, and their drivers receive extensive safety training.
• Exemptions for buses, armored cars, and waste trucks further erode the claim that removing HVCC trucks uniquely enhances safety.

He would affirm the district court’s preliminary finding that the amended ordinance falls outside the safety exception.

Conclusion

• New Precedent in the Tenth Circuit: The court adopts the two-step “genuinely responsive to safety concerns” test and clarifies that “with respect to motor vehicles” is read broadly. It aligns with the Second, Fifth, Ninth, and Eleventh Circuits on this framework.
• Deference with Limits: Municipal safety judgments receive substantial deference, especially where regulators draw on experience and pilot results. Closer scrutiny applies if the safety rationale appears pretextual or discriminatory.
• Practical Drafting Guidance: Municipalities should clearly articulate safety purposes, compile a robust record, and consider codifying key safety parameters. Exclusive-delivery models can survive preemption if the record shows safety-driven design and operation.
• Preliminary-Injunction Practice: Delay can be outcome-determinative on irreparable harm. Litigants should move swiftly and substantiate why harm is immediate and non-compensable.
• Enduring Tension: The majority and dissent illuminate the line between genuine safety regulation and owner-based access schemes that risk operating as economic controls. Future cases will likely probe how much of the safety tether must appear in the ordinance itself versus in external instruments like contracts.

Colorado Motor Carriers v. Town of Vail thus sets a durable roadmap for preemption disputes at the intersection of urban design, pedestrian safety, and last-mile logistics, while sharpening how delay affects injunctive relief in federal courts within the Tenth Circuit.