The appellate court properly held that Gordon-Darby’s lawsuit contained several legal weaknesses.
Yesterday, a three-judge panel of the U.S. Court of Appeals for the First Circuit paused a district court injunction, pending appeal, that would have forced New Hampshire to sustain a vehicle emissions inspection program to comply with the federal Clean Air Act. As I noted in prior discussions, the panel’s order ran afoul of the anti-commandeering doctrine, even though the state had not vigorously pressed that argument.
The panel’s unsigned order, issued on behalf of Chief Judge Barron and Judges Aframe and Dunlap, found that New Hampshire appeared likely to prevail on the merits, even though it did not declare that the order violated the anti-commandeering doctrine. Instead, it held that Gordon-Darby, which had sued New Hampshire to protect its lucrative emissions testing contract, was premature to accuse the state of being “in violation of” the Clean Air Act under the citizen-suit provision, since the state law terminating the emissions program had not yet taken effect. Although the governing doctrine allows citizen suits for past or ongoing violations, the district court effectively permitted a suit for, and entered an injunction against, only prospective violations.
Having determined that New Hampshire was likely to succeed on the merits, it was straightforward for the court to also conclude that the injunction would cause irreparable harm by forcing a state to continue enforcing a program that its legislature has repealed. It also noted that any gain Gordon-Darby might obtain from the injunction was speculative, because compelling New Hampshire to keep the emission-inspection regime would not guarantee that Gordon-Darby would secure the contract.
It is regrettable that the court did not address the state’s anti-commandeering and broader federalism defenses, but that omission is understandable. The Gordon-Darby lawsuit read like a transparent attempt to preserve a profitable contract that the state lawfully terminated, and like many such schemes, it rested on weak legal footing.
Perhaps anticipating the First Circuit’s order, the district court, on Wednesday, denied Gordon-Darby’s audacious bid to hold New Hampshire officials in contempt and to impose sanctions. The district judge apparently decided against holding state officials in contempt for failing to urge or enact laws that the federal government has no power to compel.
Technically, New Hampshire’s appeal remains pending, but there should now be little doubt about how this dispute will conclude.
