On Wednesday, just over a week after a U.S. District Court judge ordered New Hampshire to take all necessary steps to continue its vehicle inspection program, the New Hampshire Executive Council voted to let the state’s emissions testing contract expire.
Republished from New Hampshire Bulletin
At an emergency meeting, the council voted, 3-2, against a 60-day extension to the state’s contract with Gordon-Darby, the Kentucky-based contractor that has provided electronic equipment for the emissions portion of New Hampshire state inspections since 2004.
Gordon-Darby is also the plaintiff in a Clean Air Act lawsuit brought against the state over the program’s discontinuation — the same suit that gave rise to last week’s order, from district court Judge Landya McCafferty, that New Hampshire take steps to continue inspections until further notice.
While the future of New Hampshire’s testing and inspection program remains unclear, enforcement of state inspections will be suspended until April 26, according to a news release from the Department of Justice.
“At this time, the Department of Justice and the Department of Safety are assessing the practical and legal ramifications of the Executive Council’s decision,” said Department of Justice spokesperson Michael Garrity in the release.
State, Federal Policies in Conflict
On Wednesday, the Executive Council, Attorney General John Formella, Department of Safety Commissioner Robert Quinn, and Department of Environmental Services Commissioner Robert Scott outlined the tension between the federal judge’s orders and the Legislature’s directive, passed in June with last year’s budget bill, to end the inspection program by Jan. 31.
“We have a program that is not authorized under New Hampshire law, but which the state has been ordered to continue by federal court order, given the requirements of the Clean Air Act,” said Formella.
Noncompliance with the federal pollution control law carries a possible federal penalty of $55,000 per day, he said, in addition to the possible future loss of federal highway funding. Formella and Quinn recommended the state approve the contract extension to comply with the judge’s orders and the Clean Air Act.
“We really don’t think the (inspection) program can run without Gordon-Darby,” said Quinn. “The practical reality is that you can’t swap out the vendors overnight.”
But Executive Councilor John Stephen, of District 4, said that would run counter to the will of the Legislature, which moved in last year’s House Bill 2 to end inspections as of Jan. 31.
“We have currently no state law here on the books for this program, and you’re coming to us asking for a contract for a program that doesn’t, by law, exist,” he said. “I have a problem with that.”
Stephen and Executive Councilors Joseph Kenney, of District 1, and David Wheeler, of District 5, voted against extending the contract. Councilors Karen Liot Hill, of District 2, and Janet Stevens, of District 3, voted in favor.
More Uncertainty for Drivers
The preliminary injunction issued on Jan. 27 created confusion for drivers and New Hampshire’s more than 1,800 inspection stations, many of whom were prepared to forgo an annual inspection or wind down their services.
On Jan. 30, the New Hampshire Department of Justice issued guidance for drivers, stating that the inspection program would continue; Gordon-Darby has continued in its role, providing equipment for use since then, though its previous contract was set to expire Jan. 31, Formella said Wednesday.
But the Executive Council’s rejection of a contract extension may bring an end to that. Reached by email on Wednesday afternoon, Gordon-Darby declined to comment on their next steps and whether their equipment would remain in use.
Kenney blamed the Legislature for ending inspections on a timeline he said was too rushed to be successful. The EPA review of New Hampshire’s proposal to change air pollution control protocol may take 12 to 18 months, according to NHDES. It was filed in December.
“We put the cart in front of the horse, and what we’ve done is create, really, mass confusion within the public,” said Kenney. “The New Hampshire Legislature, they created this, they snuck it into the last hour.”
New legislation attempts to address the confusion around vehicle inspections, including an amendment to House Bill 1560, co-sponsored by several House Republican representatives, including Majority Leader Jason Osborne, of Auburn. The amendment proposes lowering the fine for inspection sticker noncompliance to $1 and prohibiting law enforcement from stopping a vehicle because it lacks a sticker.
At a Feb. 3 hearing, Rep. Henry Giasson, a Republican from Goffstown, introduced the amendment as a stopgap measure to prevent inspection enforcement while the state awaits approval from the EPA — or a favorable ruling in the Gordon-Darby lawsuit.
Without the contract extension, the state would likely issue a request for proposals from vendors to find a possible alternative to Gordon-Darby, Formella said ahead of the vote Wednesday. The state would make the argument that this request constituted a step toward extending the emissions testing program, he said, as required in the injunction.
But by discontinuing the emissions testing program in the meanwhile, he said, beyond that lawsuit, the state would be in violation of the Clean Air Act until the testing program was resumed or the EPA approves New Hampshire’s request to change its protocol.
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