By PAULA TRACY, InDepthNH.org

CONCORD – Attorney General John Formella’s request to the state’s Executive Council for a 60-day extension of its contract with vehicle emissions service provider Gordon-Darby was rejected Wednesday in an emergency meeting.

The council voted against his request, putting the state in the position of likely being in violation of the EPA’s federal Clean Air Act starting Thursday and throwing into question what happens next for vehicle inspections in the Granite State.

Commissioners also said it could open the state to more legal trouble from environmental groups and a $55,000 a day fine that could lead to loss of federal highway funds.

It came after Gordon-Darby took the state to federal court and a judge agreed to halt implementation of a new law to end all vehicle inspections Jan. 31.

Following the meeting, Formella’s office said it is continuing to seek relief from the court’s order and will keep the public updated.

“At this time, the public is reminded that enforcement of the inspection program has been suspended through April 10, 2026, and additional regulatory flexibility will be provided if necessary,” the statement said.

For now, motorists are asked to go get the inspections through March, but not worry about the law being enforced.

Voting to support Formella’s request were Executive Councilor Karen Liot Hill, D-Lebanon, and Janet Stevens, R-Rye. Opposing it were Executive Councilors John Stephen, R-Manchester, David Wheeler, R-Milford and Joe Kenney, R-Wakefield who voiced concern that this was all being brought about by a contractor who is suing the state.

Last week, Federal District Court Judge Landya McCafferty issued an order requiring the state to continue with its vehicle inspections because the state has not yet received a federal waiver that its air is clean enough that it no longer needs onboard diagnostic testing of vehicle emissions under the Clean Air Act.

Gordon-Darby, which makes about $4.1 million a year to have their equipment at over 1,800 inspection stations across the state to analyze tailpipe emissions, is suing the state after the legislature voted last year to eliminate the vehicle inspection program.

The company has been providing the service since 2004 and had about another year left in a contract extension, but in September, was notified by the state that it was terminating the deal due to the change in the law that would eliminate inspections.

The state must continue with the program and may have jumped the gun without the federal air waiver was the focus of the judge’s ruling.

To comply Formella said the easiest thing to do was to allow Gordon-Darby to continue for the next several months providing the service rather than going out to bid and have Gordon-Darby take out all their machines.

But angered by the fact that the company brought suit against the state and is likely to continue the litigation after the injunction, the Executive Council majority voted against Formella’s request.

Currently people are advised to continue to get their inspections through the month of March but it is not known yet if the emission aspect of the inspection will no longer be a part of the process if the mechanics don’t have the machines anymore.

Robert Scott, commissioner of the state Department of Environmental Services, said it could be a year or more before the state gets a decision on the request for a waiver from the federal government but he maintains that it is likely to be approved based on air quality in the state.

Formella has indicated he could appeal the judge’s order. Robert Quinn, commissioner of the Department of Safety, said law enforcement is not going to be stopping people right now based on the “color of your sticker” meaning whether it is current or not.

Executive Councilor Kenney noted that there were warning signs last summer, and pointed the finger at the legislature. He said the legislature created a mess and is causing his constituents distress and mass confusion about whether they need to have their vehicles inspected.

He said the House and Senate need to come into emergency session and “fix the problem they created,” by passing a law that he said they knew could be in violation of the federal act.

“They snuck it in” to the budget, Kenney said.

Executive Councilor Stephen said the Executive Council is not the policy body. That rests with the legislature. They just approve contracts and advise the governor. But he was not happy with the vendor and suggested the better route was to go out to bid.

Formella said he was asking for the council to approve a 60-day extension of the contract and up until the minute of the hearing, Gordon-Darby was allowing for the continuance of their services in light of the judge’s ruling, six days after their contract ended.

Gov. Kelly Ayotte asked a number of questions and noted that the Kentucky-based entity is suing the state. Formella confirmed to her that they did not bring it as a breach of contract suit.

Ayotte said it was the legislature that was elected by the people of the state who brought the change about and the state has had good relations with the EPA. And she has been given assurances it is likely that the federal waiver will be authorized.

Executive Councilor Liot Hill said the legislature created a mess from their “rushed and reckless policy” and that it was pretty likely that the state was going to be sued over it. She said she would base her vote on what she thought was in the best interest of the residents to have an orderly transition and she noted it is unlikely that many businesses would want to bid on a temporary operation given that the legislature has decided to abandon vehicle inspections.

Executive Councilor Stevens asked if opposing this 60-day extension could leave the state open to liability from environmental groups like the Sierra Club because the state could be considered in violation of the Clean Air Act. Formella said that is a possibility.

An official for the Sierra Club said after the vote that they do not have any information to share at this time.

In addition to leaving the public and inspection stations now scrambling to understand what this all means, Commissioner Scott said the potential exists not only to pay the federal government $1.6 million a month for violation of the act, but the state could lose highway funds after 18 months of noncompliance.

PUBLIC HEARINGS SET FOR THURSDAY AND FRIDAY ON GOVERNOR’S NOMINEES

 People will get the chance to voice their opinion on the governor’s nomination of Daniel Will of Loudon to be justice of the NH Supreme Court and Lucy Lange of Bedford as commissioner of the Department of Business and Economic Affairs this week.

A public hearing on Will’s nomination will be held Friday Feb. 6 at 10 a.m. in Executive Council Chambers and a hearing for Lange is set for Thursday at 1:30 p.m.

Both will be held by the state’s Executive Council in its chambers on the second floor of the State House.
Public comment will also be accepted and submitted by email to gcweb@nh.gov.

Two other nominees of the governor, Christopher Ellms Jr. as chair of the Public Utilities Commission and Diana Fenton for state Child Advocate have not yet been scheduled.