Private Suit Commandeers New Hampshire Government to Maintain Vehicle Emission Inspections

This weekend car owners in New Hampshire were supposed to be done with regular automobile emission inspections. Although such inspections had been part of the New Hampshire’s State Implementation Plan (SIP) under the federal Clean Air Act, the state legislature passed a law abolishing the program last year, effective today, January 31. Now, however, the inspections may be required after all.

Gordon-Darby Holdings, which owns the company that administered the program under a contract with the state did not want the program (and its associated revenue) to go away, so it filed suit, seeking an injunction to force New Hampshire to continue requiring automobile emission inspections. According to Gordon-Darby, New Hampshire was required to maintain the program unless and until it received approval from the federal Environmental Protection Agency. On this basis, the company went to court and—quite shockingly—prevailed.

In an order issued this past Tuesday in Gordon-Darby Holdings v. NH Department of Safety, federal district court judge Landya McCafferty enjoined New Hampshire from taking any action  “to terminate, suspend, or otherwise cease implementation or enforcement” of the vehicle inspection program, on the grounds that ending the program would violate the Clean Air Act. Because the program was part of the state’s EPA-approved SIP, it was now required under federal law.

Judge McCafferty’s decision is shocking because it is well-established that the federal government cannot require that state governments adopt or enforce regulatory measures. Such “commandeering” is unconstitutional under clear and controlling Supreme Court precedent.

As the Supreme Court explained in New York v. United States¸ “the federal government may not compel the States to enact or administer a federal regulatory program.” Rather,  the federal government may offer inducements to states to encourage their cooperation. This is what is generally called “cooperative federalism.” (Whether this is “cooperative” or adversarial in practice is of course another question.)

Under the Clean Air Act, should a state fail to submit, maintain, or enforce a SIP, the federal government will regulate in its stead (through a Federal Implementation Plan or FIP), impose more stringent requirements, and perhaps withhold some sources of federal funding (although perhaps not highway funding). A federal command or court injunction, on the other hand, is not an option. Indeed, that these are the only ways to get a state to comply has been black letter law since the 1970s when the federal government briefly considered arguing that states could be required to adopt particular regulatory measures, including (as it happens) vehicle emission inspection programs.

Were this not enough, the Court has also made clear that federal law may not force a state to maintain state laws that the federal government likes. Accordingly, in Murphy v NCAA the Court rejected the federal government’s attempt to prevent New Jersey from repealing its laws no sports gambling (and on this point, no justice dissented). Congress can prohibit sports gambling if it wants to, but it cannot force states to enact or maintain such prohibitions. As the Court explained in Murphy, “A more direct affront to state sovereignty is not easy to imagine.”

Judge McCafferty’s declaration that “federal law continues to require New Hampshire to maintain an inspection program” is profoundly wrong. What is most astonishing, however, is that New Hampshire never argued otherwise. To the contrary, the state’s attorneys conceded that “the requirements of the SIP are enforceable, that the SIP requires the State to enforce and implement the I/M program[, and] that this Court is obligated to issue appropriate orders directing the State to implement and enforce the SIP.”

That a federal judge would get such a basic, and well-established, doctrine as anti-commandeering so profoundly wrong is concerning. After all, it is typically taught to first-year law students in the introductory Constitutional Law course. But the judge’s omission is far less shocking than the New Hampshire Attorney General’s office’s concession. A federal judge can be forgiven for not considering an argument that was not raised by the parties (particularly if the argument is one that may be waived). Harder to explain is why a state AG would fail to defend his state’s prerogatives in the face of an unconstitutional claim.

The court was correct that repeal of the emission inspection program renders New Hampshire’s SIP noncompliant. But so what? Under the Clean Air Act there are procedures for redressing SIP inadequacies and imposing constitutionally permissible sanctions. There are even opportunities for private interests to sue the EPA if they believe the EPA is not responding to a state’s failure with sufficient alacrity (Judge McCafferty’s claim to the contrary notwithstanding). But nothing in the Clean Air Act (let alone the Constitution) gives the federal government (including a federal district court judge) to simply command a state to maintain a given regulatory program.

Tuesday’s order only imposed a preliminary injunction against the state, so there may still be time for the state to vindicate its interest and undo this unconstitutional command. In the meantime, the state’s failure to defend its sovereign interests is leaving New Hampshire car owners holding the bag.