52024 ENVIRONMENTAL LAW REPORTER 54 ELR 10395
GATHERING STORM:
SEC V. JARKESY AND IMPLICATIONS
FOR ENVIRONMENTAL
ENFORCEMENT
by Cameron J. Bonnell
Cameron J. Bonnell is a 2025 J.D. candidate at Georgetown University Law Center.
SUMMARY
The U.S. Environmental Protection Agency’s (EPA’s) enforcement program has long been the backbone of
environmental enforcement in the United States. That program may now be bound for dramatic change. This
Article analyzes the threats posed to the Agency’s program by the U.S. Supreme Court’s forthcoming deci-
sion in Securities and Exchange Commission v. Jarkesy, in which three constitutional questions presented cut
to the core of administrative enforcement. The Court’s decision there will foreshadow the outcome of similar
challenges currently facing EPA, and the Agency’s historically robust enforcement apparatus may depend
on its ability to distinguish its administrative enforcement from the SEC’s. Jarkesy and similar challenges to
the foundations of administrative law signal that a reimagining of environmental enforcement in the United
States may soon be necessary.
This term, through careful curation of its docket,
the U.S. Supreme Court has brought before itself a
robust set of challenges aga inst the administrative
state and government regulatory power. e Court’s case
selection reects a zealous pursuit of opportunities to rein-
terpret doctrines and precedents that form the core of envi-
ronmental and other regulation in the United States. One
such case is Securities & Exchange Commission v. Jarkesy,1
which has ensnared the U.S. Securities and Exchange
Commission (SEC) in a web of three separate constitu-
tional claims.
All three Jarkesy theories are uniquely comple x and
merit articles of their own. Yet, when the Court heard oral
arguments for the case la st November, the justices showed
an almost singu lar focus on the Seventh Amendment right
1. 34 F.4th 446 (5th Cir. 2022), cert. granted, 600 U.S. ___ (June 30, 2023).
to a jury trial.2 At the ri sk of oversimplication, this Art icle
seeks to analyze equally each of the Jarkesy issues a nd the
threats that they could pose to enforcement at the U.S.
Environmental Protection Agency (EPA). In short, the jus-
tices’ opinion(s) will assess (1)whether SEC administrative
enforcement proceedings seeking civil penalties violate the
Seventh Amendment right to a jury trial; (2)whether the
statutor y provision s authorizing SEC d iscretion to enforce
securities laws administratively instead of judicially violate
the nondelegation doctrine; and (3)whet her Congress vio-
lated Article II of the Constitution by granting for-cause
removal protection to administrative law judges (A LJs) in
agencies whose heads enjoy for-cause removal protection.3
Should the jus tices nd a const itutional decienc y through
the rst question presented, they may forgo addressing in-
depth the other two questions.
Given EPA’s reliance on administrative enforcement
under the major environmental statutes, SEC’s fate in
Jarkesy may force a re-envisioning of the Agency’s approach
to enforcement. While SEC has litigated constitutional
challenges before the Court as recently as 2018,4 the mul-
tifaceted threats it now faces are unprecedented in scope.
2. Transcript of Oral Argument, Securities & Exch. Comm’n v. Jarkesy, No.
22-859 (U.S. Nov. 29, 2023) (focusing heavily on the Seventh Amendment
question raised in the rst question presented and seeming very skeptical of
SEC’s position).
3. Brief for the Petitioner at 2, Securities & Exch. Comm’n v. Jarkesy, No. 22-
859 (U.S. Aug. 28, 2023).
4. See Lucia v. Securities & Exch. Comm’n, 585 U.S. 237 (2018).
Author’s Note: The author would like to thank Professor
Lisa Heinzerling for her guidance in researching these is-
sues and for encouraging her students to embrace creativ-
ity within their advocacy. He would also like to thank Gary
Jonesi at the Environmental Protection Agency’s Office of
Enforcement and Compliance Assurance for providing the
inspiration behind this Article and for his steadfast mentor-
ship. The opinions here are those of the author only and
not of the institutions that he has been or is currently affili-
ated with.
