Judge rules NH not in contempt despite terminating car inspections contract

The U.S. Court of Appeals paused a federal judge’s order requiring New Hampshire to take steps to resume car inspections on Thursday.

“The First Circuit’s decision confirms that the State is likely to succeed on its arguments that Gordon-Darby’s complaint failed to comply with the Clean Air Act’s citizen suit requirements and that the injunction should not have been issued,” Attorney General John Formella said in a statement. “The First Circuit’s Order suspends the State’s obligation to continue to comply with the preliminary injunction and to take actions to reinstate the vehicle inspection program while the preliminary injunction is on appeal with the First Circuit.”

Judge Landya McCafferty, who’d issued that order in January, ruled Wednesday that she would not hold state officials in contempt for violating her ruling on New Hampshire’s car inspection program, finding that they’d made “diligent efforts” to comply.

Judge Landya McCafferty said in a ruling Wednesday that commissioners of the state’s safety and environmental services departments “have taken and are taking reasonable, appropriate measures” to resume car inspections.

Last year, the Executive Council rejected a contract extension with Gordon-Darby Inc., the Kentucky-based company that makes equipment used to test auto air pollution. The company, in turn, sued New Hampshire to stop its new law disbanding mandatory car inspections.

McCafferty had issued a preliminary injunction directing the state not to terminate its inspection program before the Environmental Protection Agency issued a waiver to end vehicle emissions testing. When the Executive Council did not extend Gordon-Darby’s contract, leaving no authorized vendor to test tailpipe emissions, the company asked McCafferty to hold the state in contempt.

The commissioners of the Department of Safety and the Department of Environmental Services had gone to the Executive Council seeking to extend Gordon-Darby’s contract. When councilors rejected that, department staff began the process of finding a new vendor for the inspection program.

Though no new contract has been awarded, McCafferty declined to fine the state or hold it in contempt, finding instead that commissioners have been taking appropriate action to comply with her order.

Republican lawmakers celebrated the court’s decision, calling it a “significant win” for their constituents.

The House Majority Leader, Auburn Republican Jason Osborne, said in a statement that Gordon-Darby could “eat our dust.”

“We will not be blackmailed by an out-of-state, foreign former contractor,” Osborne said. “No matter how much legal warfare Gordon-Darby tries to wage, the reality has not changed: Mandatory car inspections are dead in New Hampshire.”

The state has advised drivers that they do not need an inspection sticker, despite the pending lawsuit and waiver.

New Hampshire is still in violation of the federal Clean Air Act until it receives the waiver from the Environmental Protection Agency, which is likely to take several more months. That could carry costly penalties.