The Inviolate Right to Be Heard
Imagine a world where the government closes the courthouse doors to anyone trying to vindicate their rights. In such a world, our rights would be lost. They might exist on paper. But if the government can trample on our rights and then bar access to the courts, our rights effectively would be meaningless. In such a world, the only option is to do as the government commands—even when it’s wildly out of line.
That’s what is happening to the Peters Brothers trucking company. Pennsylvania law supposedly prohibits the company from raising constitutional objections to new regulations that threaten the core of its business. If the company can’t get relief soon, Peters Brothers will likely have to move its headquarters from Lenhartsville, Pennsylvania, to Wisconsin—where the regulatory grass is greener.
In 2023, Peters Brothers, represented by the non-profit Pacific Legal Foundation, brought a lawsuit challenging controversial diesel engine regulations recently imported from California—for which no Pennsylvania lawmaker voted. No one in Pennsylvania even had an opportunity to voice concerns before those California standards became effective in the Commonwealth. Why? Because, over two decades ago, Pennsylvania regulators decided they would blindly adopt California law on an ongoing basis. So now, whenever California decides to embrace an ill-advised regulation that threatens to cripple its trucking industry and impose higher costs on its consumers, those California standards became “the law” in Pennsylvania automatically—without any consideration of the impact on Pennsylvanians.
The Peters Brothers lawsuit argues the commonsense proposition that Pennsylvanians should decide Pennsylvania law. But rather than defend their argument in court, the Pennsylvania Department of Environmental Protection (DEP) seeks to dodge the issue. The DEP argues that no one can bring a pre-enforcement challenge to this “rolling incorporation” of California law. And, in a recent decision, the Commonwealth Court agreed. A four-judge majority ruled (over three dissenters) that the Pennsylvania Air Pollution Control Act bars any lawsuit challenging Pennsylvania emission regulations.
This means that, even if Peters Brothers is right that it is unconstitutional for Pennsylvania law to be decided by people in Sacramento, the company has no real choice but to comply with unlawfully imported California regulations. Of course, there is another option. But it is equally unpalatable.
The DEP insists that Peters Brothers can still raise its constitutional arguments. It just needs to violate the law and wait to be sued. At that point, Peters Brothers could raise these arguments as a defense. But that is like saying one can find out if a mushroom is poisonous by eating it and waiting to see what happens. No sane person would risk it.
In this case, violating these California-imported regulations means risking ruinous liability and possible jailtime. We’re talking about stacking civil penalties of $25,000 per day for each violation. Moreover, there are potential criminal penalties of up to $50,000 per violation and up to two years in jail. Facing the prospect of those kinds of penalties, no one should be expected to roll the dice. As Justice Antonin Scalia once put it when rebuffing similar arguments from the U.S. Environmental Protection Agency, “I’m not going to bet my house on that.”
No one should have to break the law and risk losing everything they own, or jailtime, to have their day in court. As such, Peters Brothers argues that Pennsylvania’s statutory bar on pre-enforcement lawsuits violates the Fourteenth Amendment of the United States Constitution, which guarantees everyone a right to due process of law. As argued in its amended complaint, filed January 31, 2025, the Constitution protects the right to be heard in a court of law whenever one is subjected to objectionable laws or regulations—especially when there are serious civil or criminal penalties for any noncompliance.
And we should all be pulling for Peters Brothers on this issue—because free access to the courts is important to every one of us. Regardless of where anyone stands on the ideological spectrum, we should all see the problem with government insulating itself from judicial review when it’s out of line. After all, if the government can close the courthouse doors in this manner, it can do the same to any of us to immunize itself from legal challenges on any matter any of us might care about.
