This post was originally published by Blue Tomorrow. Reprinted with permission.
The U.S. Supreme Court recently cleared the way for President Donald Trump to keep building his garish ballroom, complete with gilded columns, gold chandeliers, and a “drone-proof” roof. The decision might look like a one-off fight over historic preservation, but some legal scholars fear the blast zone is much wider. The real question is more fundamental: who gets to ask a federal court to stop an allegedly unlawful project?
In a 5–4 ruling on an application for a stay, the Court found the government was likely to succeed in showing that the National Trust for Historic Preservation lacked standing to challenge the project in court. Without opining whether the ballroom project itself is legal, the decision allows construction to continue while the litigation proceeds. Chief Justice John Roberts, joined by Justices Sotomayor, Kagan, and Jackson, dissented.
The majority focused on a declaration by Trust member Alison Hoagland, an architectural historian who regularly visits the White House neighborhood about once a month. She said the ballroom’s mass, scale, and height would injure her aesthetic, cultural, and historical interests. The majority characterized Hoagland’s asserted injury as mere “offense, disagreement, or distaste,” which is not enough, it said, to get into court.
That reasoning stirred conversation among Court watchers.
Leah Litman, writing in The Atlantic, sees a serious inconsistency with Lujan v. Defenders of Wildlife, where Justice Antonin Scalia famously said that a desire to observe an animal species “even for purely esthetic purposes” can constitute a legally cognizable interest. She also raises a broader separation of powers concern: How can the executive branch be kept from violating Congress’s will if no one is allowed to sue?
William Baude, writing at Divided Argument, voices a similar concern. Environmental plaintiffs have long been able to assert aesthetic injuries involving animals, forests, and rivers. Why, then, is wanting to look at a crocodile different for standing purposes from wanting to look at the White House? Baude describes the majority’s effort to distinguish those precedents as “somewhat thin” and concludes that the ruling leaves aesthetic standing more unsettled than before.
Steve Vladeck, writing at One First, also finds the decision difficult to reconcile with Lujan. But he cautions against declaring a general “hostility to standing,” noting that the Court recognized standing in another important case this term.
So what does this mean for environmental cases?
Probably less — at least for now — than the most dramatic reading would suggest.
I see a few ways that lower courts might contain the blast of the ballroom ruling.
First, this was a shadow docket ruling on a stay application, not a final decision on the merits; and the majority held only that the government was likely to prevail.
Then there is Hoagland’s declaration. It’s possible the Court’s skepticism was not about aesthetic injury but her failure to clearly connect that injury to her use and enjoyment. The majority distinguished Friends of the Earth v. Laidlaw, where pollution interfered with fishing, swimming, camping, and picnicking. I don’t find this logic very convincing. But if I were a plaintiff challenging damage to a forest, wetland, or reef, I would describe in as much detail as I could what an area’s ugliness will keep me from doing—studying woodpeckers, fishing, or contemplating the scowl of a moray eel.
In her declaration, Hoagland does some of this. She describes her walks in the area around the White House and the fact that she remains “impressed” with “this iconic building.” But her description of the concrete injury is boilerplate (“I would suffer both professional and personal injuries, including aesthetic, cultural, and historical interests.”) Later she speaks of being “saddened” and “affronted” by the demolition of the East Wing. I wonder if this language is what prompts the majority to mischaracterize her stated injury as “offense, disagreement, or distaste” — words that I don’t find in her testimony. Anyway, the lesson here seems to be to keep your emotions to yourself.
Finally, the ballroom case may simply be unusual. The old East Wing had already been demolished. The requested injunction was about its replacement. That’s different from trying to prevent the destruction of something that still exists and that people still use and enjoy.
None of this means environmental standing is secure. Judges who want to narrow it will find plenty in the majority opinion to work with. As Baude writes, aesthetic standing is more fragile than it used to be. And for environmental advocates, careful pleading is more important than ever.
I think Nature belongs to everyone. But courts still want to know: What’s in it for you?
