This morning, declaring that “the White House is the People’s House,” a divided panel of the U.S. Court of Appeals for the D.C. Circuit upheld the district court injunction against the construction of the new White House ballroom. According to the court, “Whether or not a massive ballroom should be constructed is for Congress to decide and is not a matter for Executive self-help.”
The 100-page majority opinion in National Trust for Historic Preservation v. National Park Service was written jointly by Judges Millett and Garcia. Judge Rao dissented.
The panel stayed its decision for fourteen days for the express purpose of allowing the Trump Administration to seek review from the Supreme Court, and I would expect such a filing in due course.
If the Supreme Court does intervene, either on the interim docket or after argument, this case might present a good opportunity for the justices to revisit–and perhaps restrain–the permissive approach to standing in cases against the federal government, particularly those relying upon aesthetic standing. As Judge Rao explains in her dissent, there are serious questions about NTHP’s standing here, both as an organization and as a representative of members who claim “injury” from the ballroom’s construction.
On the first point, it is not clear NTHP can claim standing on its own behalf given its limited charter:
The fundamental problem for the Trust’s standing is that this lawsuit is not germane to its purposes because Congress did not provide the Trust with any statutory authority or interest pertinent to the White House. . . .
The Trust . . . is not a private association. It is a congressionally chartered nonprofit corporation that “owes its creation to an act of Congress” and “derives all of its capacities, faculties and powers” from statute. . . . As a congressionally chartered nonprofit, the Trust can sue only to vindicate its statutory authority. The Trust’s lawsuit is not germane to its statutory purposes and powers. Congress empowered the Trust to serve four enumerated “purposes”: (1) receiving donations of historic sites, buildings, and objects; (2) preserving and administering those sites, buildings, and objects; (3) accepting and administering gifts to carry out its preservation efforts; and
(4) executing other specified statutory functions. 54 U.S.C. § 312102(b). The list notably does not include any sweeping purposes and simply states the principal actions the Trust is authorized to take. Congress also provided more detail about the “powers” of the Trust, all of which may be exercised only “[t]o the extent necessary to enable it to carry out the functions vested in it by this chapter.” Id. § 312105(a). Of particular relevance here, the Trust may acquire real property for preservation but is prohibited from acquiring property within the National Park System. See id. § 312105(g).The White House is located within President’s Park, which is part of the National Park System. The Trust therefore has no statutory authority related to the White House: it cannot acquire donations of real property within President’s Park, and it cannot preserve or administer such property. . . .
Our associational standing precedents allow private entities some latitude to define their purposes. The Trust, however, is a federal entity limited to exercising the powers
conferred by Congress. It cannot generate standing by redefining its purposes to include aesthetic oversight of the White House, property that Congress has explicitly withheld from the Trust’s purview. This lawsuit is not germane to the Trust’s statutory authority, and therefore the Trust lacks standing to challenge the building of the ballroom
As Judge Rao notes further, the theory of germaneness adopted by the panel majority were forfeited by the parties (and we know how the current Court feels about lower courts deviating from the party-presentation principle).
Judge Rao also challenges the overly broad assertion of aesthetic injury asserted by the NTHP member who submitted an affidavit to support the organization’s standing.
The Trust rests its standing on a single member, Alison Hoagland, who alleges aesthetic harm that might arise from completion of the ballroom. The district court’s standing analysis rests on an embellished account of Hoagland’s declaration, filling in claims of harm that she perhaps could have made but did not. Looking at Hoagland’s actual statements, she has failed to demonstrate an imminent and particularized injury in fact. . . .
Her asserted aesthetic injury can be understood in two ways—as a speculative injury to her particular use of the White House, or as an imminent but generalized injury from incidentally viewing the ballroom. Either way, she lacks standing to sue.
If Hoagland’s aesthetic injury is to her specific use and enjoyment of the White House, as the district court and majority maintain, she fails to demonstrate her harm is imminent. In her declaration, she does not state any concrete plans to use and enjoy President’s Park. Hoagland details her academic credentials, past academic work, and historical preservation efforts around Washington, D.C., but she nowhere states that her work or her other activities specifically require viewing the White House without the planned ballroom. . . . Hoagland instead claims that she expects to “travel to the area around the White House … about once a month” to “attend functions in
neighboring buildings.” Id. ¶ 12. Her assertions about future use of President’s Park are tenuous at best and do not satisfy the Trust’s burden at the preliminary injunction stage to make a clear showing of imminent aesthetic injury to a member.If Hoagland’s aesthetic injury is instead incidentally viewing a ballroom she finds displeasing, her harm is imminent but not particularized. Her declaration merely states that about once a month she will walk by the White House on her way to other buildings. Id. On these walks, she anticipates being “impressed” with the White House but displeased with the planned ballroom. Id. These allegations mirror those of the petitioner in Environmental Defense Fund, who lacked standing because she complained only about an “eyesore” that she occasionally passed while traveling elsewhere. 2 F.4th at 968–69. Since Hoagland’s objection to the appearance of the
ballroom could be made by anyone planning to travel by the White House, it constitutes nothing more than a generalized grievance insufficient for Article III standing. . . .By allowing standing for the Trust based only on Hoagland’s declaration, the majority’s reasoning would permit adjudication of any government action that a plaintiff finds unsightly. But that contravenes the settled understanding that
“general emotional ‘harm,’ no matter how deeply felt, cannot suffice for injury-in-fact for standing purposes.” Humane Soc. of U.S. v. Babbitt, 46 F.3d 93, 98 (D.C. Cir. 1995). I would decline the Trust’s “unprecedented and limitless” assertion of standing, which would improperly convert the federal courts into a “vehicle for the vindication of the value interests of concerned bystanders.” Alliance, 144 S. Ct. at 1556, 1562 (cleaned up).In sum, Hoagland falls short of making a clear showing of standing for a preliminary injunction. And having failed to demonstrate it likely has a member with standing, the Trust lacks associational standing.
Judge Rao also contests the majority’s statutory holding, but I suspect the standing issues alone will be enough to engage the Supreme Court’s interest and (if I had to predict) reverse this decision.
Perhaps the bigger question is whether we will get a standing opinion from Justice Kavanaugh, who is perhaps becoming the Court’s leading expositor of standing principles, having authored Transunion, U.S. v. Texas, Alliance for Hippocratic Medicine, and Diamond Alternative.
