As promised, government services contractor Gordon-Darby Inc. has renewed its attempt to force the state of New Hampshire to revive its vehicle emissions inspection program. On July 22, the firm filed a new lawsuit challenging the state's decision to end the program and seeking a federal court injunction to force the state to re-start it--thus giving Gordon-Darby the opportunity to pursue another lucrative contact providing emission inspection testing. As before, Gordon-Darby's suit betrays a profound misunderstanding of both the Clean Air Act and the constitutional limits on the federal government's ability to compel state action.
The central claim in the suit is that New Hampshire is violating the Clean Air Act because it is required to have a vehicle emissions inspection program as part of its State Implementation Plan. What the suit overlooks, however, is that the Act does not authorize injunctions to compel state implementation of the Act. To the contrary (and as one of the plaintiffs' supporting exhibits makes explicit), if a state is failing to meet its SIP obligations, the remedies are for the EPA to impose sanctions, which can include the imposition of a Federal Implementation Plan (FIP)--implemented and enforced by the federal government--and the loss of federal funds (including, potentially, highway funds). Yet that is not what the plaintiffs want here (which is why they are suing New Hampshire instead of the EPA). Rather, as they make explicit in their complaint, the purpose of the suit is to "compel New Hampshire state officials" to implement the desired program.
The Clean Air Act has never provided for the sort of enforcement that Gordon-Darby seeks, and with good reason. As the Supreme Court has made clear in New York v. United States, Printz v. United States, and NCAA v. Murphy, the federal government lacks the authority to compel a state to adopt, administer, or implement a desired regulatory program. Further, as Murphy made explicit, this anti-commandeering principle applies to attempting to prevent a state from repealing an existing law, as the New Hampshire legislature did here.
