Protecting Nature in a “Legal in Nature” Seventh Amendment Framework: Reimagining EPA Enforcement Post-Jarkesy

Abstract

In Securities and Exchange Commission v. Jarkesy, the Supreme Court
held that defendants accused of securities fraud were entitled to jury trials
under the Seventh Amendment, and that the SEC could not adjudicate
these cases before their expert administrative law judges.Worryingly, this
case implicates the Environmental Protection Agency, whose enforcement
strategy similarly relies on internal adjudication. This Note proposes
various legal and policy solutions that mitigate the impacts of Jarkesy to
preserve the critical work of the EPA in protecting the health, safety, and
environment of the American public. First, the EPA can attempt to
distinguish itself from the SEC through the public rights exception, and
through the statutory language that empowers its enforcement. Second,
the EPA can emphasis non-traditional forms of environmental redress that
do not involve penalties that implicate the Seventh Amendment. Finally,
the EPA can engage with state actors to fill in potential gaps in federal
enforcement. While the current Supreme Court seems determined to
declaw administrative agencies, alternative means remain for the EPA.