Gordon-Darby Prepares to Renew Effort to Commandeer New Hampshire in Order to Maintain Emissions Testing Contract

Gordon-Darby Holdings had a lucrative contract running New Hampshire’s vehicle emissions testing program. Understandably, Gordon-Darby was disappointed when the New Hampshire state legislature repealed the program and canceled the contract. So Gordon-Darby did what many companies would do: It filed suit seeking a court order requiring New Hampshire to maintain the testing program.

Lacking any contractual basis for its suit, Gordon-Darby claimed that New Hampshire was required to maintain its vehicle emission testing program under the federal Clean Air Act. The problem for Gordon-Darby is that the Clean Air Act does not actually require states to do anything, in that states are not forced to adopt or enforce any pollution control measures. Rather, the Act seeks to induce state cooperation by threatening various sanctions if states do not comply, such as a loss of federal funding and the imposition of federal regulations. The Act is structured this way because a direct imposition on the state would be unconstitutional, as the federal government conceded to the Supreme Court when these issues were litigated in the 1970s. Since then, the Supreme Court has made explicit that federal law cannot force states to adopt, implement, or enforce a federally desired regulatory program, as any such requirement would be unconstitutional commandeering.

Gordon-Darby first suit foundered when the U.S. Court of Appeals for the First Circuit concluded the litigation was premature. As the district court had looked more favorably on the claims , Gordon-Darby announced its plans to try again. Accordingly, it filed a new notice of intent to sue, raising the same claims.

In the first litigation, the state largely defended on narrow technical grounds, and largely failed to raise the commandeering defense. In my view, this was a mistake, as the anti-commandeering doctrine is quite clear and, in some respects, has its roots in a nearly identical conflict, when the EPA sought to force states to adopt vehicle emission inspection programs in the 1970s. Thus even if Gordon-Darby overcomes the various technical hurdles to filing suit, it has no claim, as it is asking for relief that federal courts cannot lawfully provide.

As Gordon-Darby filed its new notice of intent to sue on May 8, I suspect this means we will see a suit filed in early July. Stay tuned.

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