Gordon-Darby Renews Legal Effort to Force New Hampshire to Maintain Emissions Testing Program

Gordon-Darby Holdings, which held a contract to operate New Hampshire's vehicle emissions testing program, is preparing to file a new lawsuit after the state legislature repealed the program and terminated the contract. The company's legal theory rests on the claim that the federal Clean Air Act obligates New Hampshire to maintain the testing program. However, legal analysts note that the Clean Air Act is structured to induce state cooperation through incentives and sanctions — such as loss of federal funding — rather than direct mandates, precisely because direct compulsion of states would be unconstitutional. The Supreme Court has established through the anti-commandeering doctrine that the federal government cannot force states to adopt, implement, or enforce a federally desired regulatory program. Gordon-Darby's first lawsuit was dismissed by the U.S. Court of Appeals for the First Circuit as premature, though a lower district court had been more receptive to the claims. The company filed a new notice of intent to sue on May 8, suggesting a formal lawsuit could be expected around early July. Critics argue New Hampshire failed to fully raise the anti-commandeering defense in the first round of litigation, which they view as a significant missed opportunity.