First Circuit Stays Court Order Commandeering New Hampshire (Though Doesn’t Rely on Anti-Commandeering Arguments)

Yesterday a panel of the U.S. Court of Appeals for the First Circuit stayed a district court injunction, pending appeal, that would have commandeered New Hampshire by requiring it to maintain a vehicle emissions inspection program to comply with the federal Clean Air Act. As I explained here and here, the court’s order violated the anti-commandeering doctrine (though the state had not made much effort to make this argument).

The unsigned order (on behalf of Chief Judge Barron and Judges Aframe and Dunlap) concluded (correctly) that New Hampshire was likely to prevail on the merits, even if it did not conclude that the order violated the anti-commandeering doctrine. Rather, the court concluded that Gordon-Darby, which had sued New Hampshire in order to protect its lucrative vehicle emissions testing contract, was premature in alleging the state was “in violation of” the Clean Air Act when it sued under the law’s citizen suit provision, as the state law terminating the vehicle emissions inspection program had not yet taken effect. While the relevant case law allows citizen suits for past or present violations, the district court, in effect, allowed a suit for (and entered an injunction against) wholly prospective violations.

Having concluded New Hampshire was likely to succeed on the merits, it was easy for court to further conclude that the injunction would cause irreparable injury by “forc[ing] a State to continue enforcing a program that the State’s legislature has repealed.” It further noted that any benefit to Gordon-Darby from the injunction was speculative, as forcing New Hampshire to continue the emission inspection program would not guarantee that Gordon-Darby would get the contract.

It is too bad the court saw no need to reach the state’s commandeering or other federalism arguments, but entirely understandable. The Gordon-Darby suit was a transparent ploy to preserve a lucrative contract that the state had lawfully terminated, and like many such ploys, it was not well-grounded in the law.

Perhaps anticipating the First Circuit’s order, on Wednesday the district court denied Gordon-Darby’s quite audacious request to hold New Hampshire officials in contempt and award sanctions. The district court judge apparently thought better of holding state officials in contempt for failing to urge or enact laws the federal government has no authority to compel.

As a technical matter, New Hampshire’s appeal remains pending, but there should be little question anymore about how this litigation will end.