After losing its first lawsuit on technical and procedural grounds, the company is set to pursue the matter again.
Gordon-Darby Holdings had secured a profitable arrangement overseeing New Hampshire’s vehicle emissions testing program. It was natural for Gordon-Darby to feel frustrated when lawmakers in Concord repealed the program and terminated the agreement. In response, the company took a familiar route: it initiated litigation, asking a court to compel New Hampshire to keep the testing regime in place.
With no contractual footing for the lawsuit, Gordon-Darby asserted that the state was obligated under the federal Clean Air Act to sustain the vehicle-emissions testing program. Yet the Clean Air Act does not compel states to act; it does not mandate adoption, enforcement, or maintenance of pollution-control measures by the states. Instead, it leverages persuasion by threatening penalties—such as the withdrawal of federal funding or the imposition of federal standards—intended to coax state cooperation. This design reflects the constitutional constraint against direct federal command over states, a principle acknowledged by the Supreme Court during the 1970s cases, which held that the Constitution forbids the federal government from forcing states to adopt a particular regulatory scheme. Since then, the Court has clearly stated that federal law cannot coerce states into implementing or enforcing a federally preferred program.
Gordon-Darby’s initial suit stalled when the First Circuit determined the case was premature. While the district court had shown more openness to the arguments, Gordon-Darby signaled its intent to refile. Consequently, it submitted a fresh notice of intent to sue, reiterating the same assertions.
During the initial proceedings, the state mainly defended on limited technical points and largely did not invoke the anti-commandeering doctrine. This omission, in my judgment, was a misstep, because the anti-commandeering principle is well established and echoes an earlier dispute—when the EPA attempted to compel states to implement vehicle emission inspection programs in the 1970s. Therefore, regardless of any technical obstacles Gordon-Darby may clear to reopen the case, its claim remains untenable, since federal courts cannot grant relief that runs afoul of the anti-commandeering constraint.
With the new notice of intent to sue filed on May 8, observers anticipate a formal complaint as early as July. Stay tuned.
