Standing Doctrine in Environmental Cases Was Always Too Strict. After the Ballroom Case, It's Impossible

In Monday's per curiam opinion in National Park Service v. National Trust for Historic Preservation, the 5-4 majority said that a setback to an aesthetic interest in observing historic sites (such as the White House before Trump took his wrecking ball to it) is not a sufficient injury to confer Article III standing on an individual or group of which that individual is a member. The dissent by Chief Justice Roberts and the Supreme Court's three Democratic appointees argued that the per curiam misapplied the Court's standing precedents, especially Lujan v. Defenders of Wildlife. The dissent is correct. The Lujan Court said that indefinite plans to visit a region in the hope of observing members of an endangered species are not a sufficient interest under Article III but, citing earlier cases upholding standing for environmental plaintiffs, the Lujan Court acknowledged that someone with a particular professional or other interest in an animal species would have standing to complain about actions that further endanger that species.

The National Park Service per curiam said that the foregoing acknowledgment set forth a necessary but not a sufficient condition for standing. It was not enough that people who complained about harm to a national park wanted to observe nature, the per curiam said; they also had to use it. As the dissent showed, that's pretty plainly incorrect even on its own terms.

The Chief Justice acknowledged that in some of those prior cases, the plaintiffs didn't just want to look at nature, but "also liked to use it by fishing and swimming in it and by hiking and camping alongside it.  . . . Certainly one may enjoy a river not just by looking at it but also by swimming in it and hiking along it. But the principal way a person enjoys a historic building or object is by looking at it." Thus, the dissent concluded that the member of the National Trust whose interests were identified--Alison Hoagland, who has played a longstanding leadership role in historic preservation--was analogous to the environmental plaintiffs whose standing had been recognized in prior cases.

Why did the majority disagree? A cynic might say that they merely wanted to please or to avoid angering Trump. But we need not go down that road.

Apparently underlying the per curiam was a concern that allowing standing in the ballroom case would give everyone standing to challenge every government action that changes the appearance of any government property. The Court more or less said as much when it treated the alleged injury as "mere offense, disagreement, or distaste," which anyone can experience, as opposed to the destruction of something of particularized concern to Hoagland and thus not to just about everyone. Thus, perhaps another way of understanding the per curiam is as cutting back on the environmental precedents. In this view, even profound individualized interest in some subject doesn't translate into Article III injury when that subject is damaged or destroyed, unless one is deprived of something beyond the ability to observe the subject.

I suspect that is in fact the view of a majority of the Court. If so, it should not have been the basis for Monday's order because it would be a change in the law--and emergency relief is not supposed to be based on a change in the law. Unfortunately, however, that ship had already sailed. The Roberts Court now rather routinely grants (or withholds) emergency relief based on what it intends to change the law to.

For example, in Trump v. Wilcox in 2025, the Court granted emergency relief based on the fact that the lower courts had faithfully applied Humphrey's Executor v. United States because a majority of the Court (that time including Chief Justice Roberts) intended to overrule Humphrey's, as it then proceeded to do this year in Trump v. Slaughter. Put differently, in assessing the likelihood of success on the merits in cases on its emergency docket, the Court does not ask what the current law is but whether the party seeking relief is likely to succeed on the merits based on what a majority of the Court plans to do in the future, including overruling its precedents.

Returning to the standing question, I hasten to add that I regard Lujan as wrongly decided for two reasons. First, the entire standing doctrine is made up. I understand the Court's wish to avoid giving advisory opinions and to control the federal docket, but that strikes me as at most a sub-constitutional, i.e., prudential, principle that ought to be defeasible by Congress, and in Lujan the plaintiffs relied on a statute that conferred standing broadly.

Second, the Court's standing decisions in environmental cases are downright perverse. Often the core animating purpose of environmental conservation laws is to protect various aspects of nature from degradation caused by human use. That's not to say that's the only purpose. The National Parks and National Forests are also protected against certain kinds of commercial exploitation and use, such as mining or cattle ranching, so that they may be used and enjoyed by humans in other, less destructive ways, such as by hiking or camping. But insofar as Congress will sometimes choose to protect nature from human use, it makes little sense to say that the only people with standing to challenge violations of the legal protections are those who themselves use the areas of nature in some way.

Protection for endangered species of dangerous animals is a nice example. Consider polar bears, which are currently listed as threatened under the Endangered Species Act. If the government is about to take some action that would cause allegedly illegal harm to polar bears in Alaska, the Court's precedents (especially Lujan) would give standing to someone who, contrary to their own interests in not being killed by a polar bear and to the interests of the polar bears in not having their habitat further disturbed, has concrete plans to go see the polar bears up close, but not to someone who simply cares deeply about the fate of polar bears, global warming, and the planet--despite the fact that in the citizen suit provision of the Endangered Species Act Congress attempted to confer standing on "any person."

That makes no sense as a matter of environmental policy, nor would more expansive standing lead to the flood of litigation that a majority of the Court apparently fears. For one thing, Congress has proven to be a responsible gatekeeper over the years, adjusting the jurisdiction of the federal courts to avoid litigation floods. For another, virtually no other constitutional democracy has such strict standing limits.

Put simply, in environmental cases, the ballroom case, and others, the Court's claim that it would violate the Constitution for it to allow concerned citizens to litigate against our law-breaking government is as unwarranted in law as it is in sound policy.

-- Michael C. Dorf