By PAULA TRACY, InDepthNH.org
CONCORD – In the state’s ongoing emissions and vehicle inspection controversy, the state has filed a request with the First Circuit Court of Appeals in Boston, asking to hold off any state penalty until the whole matter is resolved.
On Thursday, Attorney General John Formella asked to stay U.S. District Court Judge Landya McCafferty’s preliminary injunction against the state until the merits are resolved.
This matter involves the loss of potentially tens of thousands of dollars a day in fines and federal highway funds.
A copy of the 24-page motion to stay order pending appeal is here: https://indepthnh.org/wp-content/uploads/2026/03/Appellants-Motion-to-Stay-Order-Pending-Appeal.pdf
Currently the state has no emissions and vehicle testing requirements. The legislature voted to eliminate the program as of Jan. 31. Formella said last week that the state’s February 13 guidance remains in effect until further notice.
The guidance says the state inspection program is suspended until further notice, but also says, “Drivers are still responsible under current law to ensure that any vehicle driven in New Hampshire is safe to operate, regardless of the status of the inspection program.”
After the contractor for the state inspection program, Gordon-Darby Holdings, filed a civil suit against the state, Judge McCafferty ordered the state to resume the inspection program immediately ruling the state is in violation of the federal Clean Air Act until it gets a federal waiver.
On Friday, Gordon-Darby Holdings asked Judge McCafferty to ask the commissioners of the Department of Safety, Robert Quinn, and Department of Environmental Services, Robert Scott, to show cause why they shouldn’t be held in contempt of court.
An effort by Formella to get the Executive Council to continue the program for a period with Gordon-Darby was rejected.
“This case is a private contract action masquerading as a Clean Air Act citizen suit,” the state wrote in its appeal, noting the case was brought by contractor Gordon-Darby Holdings whose services were legally terminated under the terms of the contract to operate the state’s emissions testing.
The company filed a “citizen” rather than a contract breach case in the U.S. District Court in Concord, and two days before the new law was to go into effect, Judge McCafferty ruled the state did not have the federal government’s approval yet to waive such testing under the Clean Air Act.
“This action has created substantial public confusion,” the state wrote in its appeal.
The Attorney General’s Office has said that the public does not need to do such testing right now, but on March 13, Gordon-Darby filed a contempt motion at the U.S. District Court in the case https://indepthnh.org/2026/03/16/judge-asked-to-hold-nh-officials-in-contempt-fined-for-failing-to-re-start-auto-inspections/.
The state argues that it will likely succeed on appeal based on the appellee’s standing, there is no state law in effect, and even if the legislature restored the program, the state commissioners of safety and environment would still lack authority to reinstate Gordon-Darby, among other arguments.
New Hampshire has improved its air quality since 2004 and would likely prevail in its appeal to exempt the state from the requirements for emissions under the Clean Air Act.
Last June, the legislature voted to eliminate the program and had an effective date of Jan. 31 and while the legislature was warned that the request for the federal waiver might take more time, they still went ahead with the date and it was signed by Gov. Kelly Ayotte.
The motion to stay is signed by Attorney General Formella along with Mark Lucas and Joshua Harrison.
Executive Councilor John Stephen, R-Manchester, issued the following statement after the motion was filed:
“The Legislature repealed the inspection program. The Governor signed it. The Executive Council voted 3-2 to deny the contract extension. Every branch of New Hampshire’s government has spoken. A single federal district court judge does not get to overrule all three,” Stephen said.
“Gordon-Darby is a private company that lost a government contract and is suing (under) the Clean Air Act to try to get it back. The Attorney General’s appeal makes the central point: there is no state law left to enforce. The injunction demands that state officials administer a program with no statutory authority, no appropriation, and no legal basis.
“The Supreme Court has been clear that the federal government cannot commandeer state officials to run federal programs. New Hampshire will not be the exception.
“I am confident the First Circuit will do what the District Court would not: recognize that the Tenth Amendment means something, that state sovereignty is not optional, and that one corporation’s lost contract does not give a federal judge the power to conscript the State of New Hampshire,” Stephen said.