Radox is a harmful gas found in the soil of certain regions…
Radox is a harmful gas found in the soil of certain regions of the United States. A State Y statute requires occupants of residences with basements susceptible to the intrusion of radox to have their residences tested for the presence of radox. The State Y statute also provides that the testing for radox may be done only by testers licensed by a State Y agency. According to the State Y statute, a firm may be licensed to test for radox only if it meets specified rigorous standards relating to the accuracy of its testing. These standards may easily be achieved with current technology, but the technology required to meet them is 50% more expensive than the technology required to measure radox accumulations in a slightly less accurate manner. The United States Environmental Protection Agency (“EPA”) does not license radox testers. A federal statute, however, authorizes the EPA to advise on the accuracy of various methods of radox testing and to provide to the general public a list of testers that use methods it believes to be reasonably accurate. A recently established company in State Y uses a testing method that the EPA has stated is reasonably accurate. The company is also included on the EPA’s list of testers using methods it believes to be reasonably accurate. The company applied for a radox testing license in State Y, but its application was denied because it cannot demonstrate that its method of testing for radox is sufficiently accurate to meet the rigorous State Y statutory standards. The company has sued appropriate State Y officials claiming that State Y may not constitutionally exclude the company from performing the required radox tests in State Y.Who is likely to prevail in the lawsuit?