While PennFuture’s recent success with the Environmental Rights Amendment from the Pennsylvania Supreme Court is good news for public health and the environment, some very bad decisions being handed down by the U.S. Supreme Court show the fight is far from over. Our legal team summarized perhaps the biggest recent threat to environmental law in the nation with the Supreme Court’s decision in the Loper Bright case which overturned decades of legal precedent that gave the scientists, doctors, and experts at federal administrative agencies deference in developing regulations that protect the health and safety of our communities and environment. But there are a few other Supreme Court decisions that we wanted to call your attention to that continue to dismantle the power of administrative agencies and open the door to new challenges of settled laws.  

No real time limits to challenge federal regulations 

First up, we have Corner Post, Inc. v. Bd. of Governors of the Fed. Resrv. Sys., 603 U.S. ____ (2024). In this decision, the one-two punch just days after Loper Bright, the Supreme Court eradicated our ability to rely on seemingly settled federal regulations. Under the Administrative Procedure Act (APA), a party has six years to challenge a final agency action (e.g., rule, regulation, policy decision) that is issued by an administrative agency. This is known as the “statute of limitations”; after that time runs, you cannot challenge the final agency action in court. But what the Supreme Court did in Corner Post is significantly shift the time when this statute of limitations begins to run. So, the six years no longer starts when an agency publishes a final rule or regulation (a known, set date), but instead starts when a would-be challenger is first harmed by a rule. This means that an interest that wants to challenge a rule, whether it was issued 1 year, 10 years, or 40 years ago, can create a new entity (corporation) for the sole purpose of being “injured” by that regulation, and boom—they can have their day in court.  

Justice Ketanji Brown Jackson summarized the dire place in which we now find ourselves in her dissenting opinion: 

“The tsunami of lawsuits against agencies that the Court’s holdings [Corner Post] and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government. Even more to the present point, that result simply cannot be what Congress intended when it enacted legislation that stood up and funded federal agencies and vested them with authority to set the ground rules for the individuals and entities that participate in our economy and our society. It is utterly inconceivable that [the APA’s] statute of limitations was meant to permit fresh attacks on settled regulations from all newcomers forever. Yet, that is what the majority holds today.” 

Thus, when taken together with the dissolving of agency deference in Loper Bright, no federal rule or regulation is sacred anymore. The regulations we rely on to reduce carbon emissions and toxic air pollutants, to ensure healthy indoor air quality, to keep harmful bacteria, PFAS, and other harmful pollution out of our drinking water—they could all be challenged by industry at any time, leaving our communities and future generations in peril. Let the chaos monkeys reign! 

Administrative tribunal declared unconstitutional, limiting agency enforcement options 

As if that isn’t enough, SEC v. Jarkesy, 603 U.S. ____ (2024), makes it more difficult to hold those who violate rules accountable. Although this case is specifically about the Securities and Exchange Commission (SEC), the ultimate holding is likely to impact other federal administrative agencies, like the EPA, who have the authority to bring enforcement actions before in-house administrative tribunals instead of in federal court. We are all familiar with our court system, but what many may not realize is that there are also administrative tribunals that are overseen by administrative law judges (ALJs). (EPA, for example, has an Office of Administrative Law Judges.) ALJs conduct hearings and issue decisions in proceedings between an administrative agency and persons, businesses, government entities, and other organizations that are, or are alleged to be, regulated under the laws that the agency is tasked with promulgating and enforcing. The ALJs have unique expertise in their respective fields and are therefore very well situated to hear challenges to highly technical and complicated legal matters in areas such as environmental, financial, labor, and health and safety law. While decisions of ALJs are appealable to the courts, they provide the trial-level and first-level appellate reviews of these technical matters and agency decisions. In the Jarkesy case for example, the SEC brought a civil (as opposed to criminal) action against Jarkesy and his hedge fund alleging mismanagement of funds controlling $24 million. After an extensive evidentiary hearing, the SEC ALJs found Jarkesy liable for securities fraud and ordered him to pay $300,000 in penalties and sanctions for his actions.  

Here, the Supreme Court agreed with an extreme opinion by the Fifth Circuit Court of Appeals, that held ALJs and administrative tribunals are unconstitutional. In short, the Supreme Court held that these civil administrative tribunal actions violate the Seventh Amendment’s guarantee of a right to a trial by jury in most civil lawsuits, and that the “public rights” exception does not apply to punitive (e.g., enforcement) actions (the Supreme Court did not rule on the 5th Circuit’s other two unconstitutional points: the non-delegation doctrine and separation of powers).  

The likelihood of this decision being limited to the SEC’s administrative tribunal is very small, meaning that every federal administrative agency tribunal court could similarly be declared unconstitutional. As Justice Sonya Sotomayor points out in her dissent, “the Constitutionality of hundreds of statutes may now be in peril, and dozens of agencies could be stripped of their power to enforce laws enacted by Congress.” What’s more, some administrative agencies, such as the Occupational Safety and Health Review Commission, are only statutorily authorized to bring enforcement actions through these in-house tribunals. In those situations, it is unclear what will happen. But perhaps the real threat of the Jarkesy decision, especially to environmental law, is that it is extremely resource-intensive to bring litigation in federal courts and, therefore, many agencies may need to triage the enforcement actions they are able to bring. This will ultimately result in less enforcement against polluters and more unchecked harm to our communities and environment.    

The stripping away of administrative agency authority 

What is painfully clear from this trifecta of recent Supreme Court cases is that it will be harder for administrative agencies that are entrusted with the protection of our environment, our health, and our safety to do their jobs. There will be more litigation in the federal courts challenging strong regulations and this will take significant time and money and will distract resources away from the agencies’ ability to hold bad actors accountable. It will also make the job of environmental advocates and attorneys, like PennFuture, harder—and yet more important. As we announced previously: At PennFuture, our legal team will continue to push for strong federal and state regulations to protect our air and water and to continue to beat back against the ravages of climate change. We will help defend agency regulations that work towards these goals, and we will help challenge agency regulations that are not protective enough. 

This includes working harder to protect our strong Pennsylvania regulations and to push for more stringent state protections where we can. Our lawyers will be in the courtrooms fighting for our Environmental Rights; our policy team will be in the capitol pushing for better environmental legislation and a stronger, greener economy; and our civic engagement team will be in the field, listening to your concerns and helping to educate, empower, and equip communities to stand up and fight for a cleaner, healthier Pennsylvania for all! 

Support Us!

We know we have a long battle in front of us and we’re prepared. But we need YOUR support! The best way to help is to become a PennFuture member by donating TODAY. Volunteer with our ACE program. Write to your legislators, talk to your family and friends about the issues, and most importantly—VOTE!