UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ AMMEX, INC., │ Plaintiff-Appellant, │ > No. 20-1250 │ v. │ │ GARY MCDOWELL, Director for the Michigan │ Department of Agriculture & Rural Development, │ Defendant-Appellee. │ │ ┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:18-cv-10751—Laurie J. Michelson, District Judge.

Argued: March 9, 2021

Decided and Filed: February 3, 2022

Before: GRIFFIN, WHITE, and BUSH, Circuit Judges.

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COUNSEL ARGUED: Leah A. Mintz, DUANE MORRIS LLP, Philadelphia, Pennsylvania, for Appellant. Elizabeth A. Morrisseau, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Leah A. Mintz, Robert M. Palumbos, DUANE MORRIS LLP, Philadelphia, Pennsylvania, for Appellant. Elizabeth A. Morrisseau, Danielle Allison- Yokom, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

WHITE, J., delivered the opinion of the court in which GRIFFIN and BUSH, JJ., joined. BUSH, J. (pg. 17), delivered a separate concurring opinion. No. 20-1250 Ammex, Inc. v. Michigan Dep’t of Agric., et al. Page 2

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OPINION _________________

HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Ammex, Inc. (Ammex) appeals the district court’s dismissal of its amended complaint. Ammex seeks to prevent Defendant- Appellee Michigan Department of Agriculture and Rural Development (MDARD) from enforcing a federal gasoline-volatility regulation against it, arguing that the regulation is inapplicable to export-only gas stations and conflicts with the customs statute that authorizes Ammex’s duty-free status. For the reasons below, we AFFIRM.

I.

Ammex owns and operates a duty-free gas station that is located in Wayne County, Michigan, near the bridge to Canada, but positioned “beyond the exit point” for domestic commerce established by the United States Customs and Border Protection (CBP). This litigation began in 2012, when MDARD sought to enforce an Environmental Protection Agency (EPA) rule requiring gas stations in Wayne County to dispense low-pressure gasoline in the summer. MDARD, in conjunction with the EPA, implemented this rule to bring Southeast Michigan’s ozone levels into compliance with the Clean Air Act. Because of its unique location and certain sales privileges granted to it by United States customs law, Ammex has resisted efforts to apply the rule to its gasoline sales.

This is the second time these parties have been to this court to dispute MDARD’s enforcement of the rule against Ammex. We first addressed this dispute in 2019, when we determined that MDARD was enforcing federal regulatory law, and accordingly was not in violation of the Supremacy Clause or dormant Foreign Commerce Clause. We now review Ammex’s updated challenges: first, that the environmental rule, properly construed, does not apply to Ammex; and