Gordon-Darby Renews Attempt to Commandeer New Hampshire Through the Clean Air Act

As promised, government services contractor Gordon-Darby Inc. has renewed its attempt to force the state of New Hampshire to revive its vehicle emissions inspection program. On July 22, the firm filed a new lawsuit challenging the state’s decision to end the program and seeking a federal court injunction to force the state to re-start it–thus giving Gordon-Darby the opportunity to pursue another lucrative contact providing emission inspection testing. As before, Gordon-Darby’s suit betrays a profound misunderstanding of both the Clean Air Act and the constitutional limits on the federal government’s ability to compel state action.

The central claim in the suit is that New Hampshire is violating the Clean Air Act because it is required to have a vehicle emissions inspection program as part of its State Implementation Plan. What the suit overlooks, however, is that the Act does not authorize injunctions to compel state implementation of the Act. To the contrary (and as one of the plaintiffs’ supporting exhibits makes explicit), if a state is failing to meet its SIP obligations, the remedies are for the EPA to impose sanctions, which can include the imposition of a Federal Implementation Plan (FIP)–implemented and enforced by the federal government–and the loss of federal funds (including, potentially, highway funds). Yet that is not what the plaintiffs want here (which is why they are suing New Hampshire instead of the EPA).  Rather, as they make explicit in their complaint, the purpose of the suit is to “compel New Hampshire state officials” to implement the desired program.

The Clean Air Act has never provided for the sort of enforcement that Gordon-Darby seeks, and with good reason. As the Supreme Court has made clear in New York v. United States, Printz v. United States, and NCAA v. Murphy, the federal government lacks the authority to compel a state to adopt, administer, or implement a desired regulatory program. Further, as Murphy made explicit, this anti-commandeering principle applies to attempting to prevent a state from repealing an existing law, as the New Hampshire legislature did here.

As it happens, the theory advanced by the plaintiffs was briefly embraced by the EPA in the early 1970s, as the Clean Air Act was first being implemented. Concerned that states were not doing enough to reduce air pollution, the EPA sought to force states to adopt specific emissions control measures, including the adoption of vehicle emission inspection programs! Three of four federal circuit courts rejected the EPA’s arguments, however. The Supreme Court granted certiorari, at the federal government’s request, only to dismiss the case after the Department of Justice conceded (in a footnote) that the EPA’s regulations could not be lawfully enforced. Even though the Supreme Court would not articulate an anti-commandeering rule for another fifteen years, DOJ recognized the constitutional problem with trying to turn state officials into agents of the federal government. Now that the anti-commandeering doctrine is explicit, there should be even less room to debate Gordon-Darby’s audacious legal claim.

This time around Gordon-Darby is joined by an individual plaintiff, Marilyn Jonas, who claims her asthma is exacerbated by air pollution. The addition of an individual plaintiff who can claim tangible harm from air pollution increases that may result from termination of the emissions inspection program may help Gordon-Darby avoid dismissal on standing grounds, but it does not change the statutory or constitutional analysis.

When Gordon-Darby first brought litigation seeking to keep the emissions inspection program in place, New Hampshire failed to raise commandeering arguments in its defense, preferring various procedural and jurisdictional arguments that the district court unpersuasive. As the case has been assigned to the same judge, we will see whether history repeats itself in that respect here.

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