How the Supreme Court could use Trump’s ballroom to gut environmental law

The question of whether President Donald Trump may, without seeking permission from Congress, demolish much of the White House and replace it with his own projects is now before the Supreme Court.

Last fall, construction crews acting under Trump’s orders abruptly tore down the East Wing of the White House, the first step in Trump’s plan to replace the historic building with an enormous ballroom. A conservationist organization, the National Trust for Historic Preservation, soon sued to stop the construction on the ballroom in a case that is still ongoing. Lower courts have thus far agreed with this plaintiff that the ballroom is illegal.

Trump’s claim that he may tear down large sections of the White House and replace them with the ballroom is not supported by law. A federal statute provides that “a building or structure shall not be erected on any reservation, park, or public grounds of the Federal Government in the District of Columbia without express authority of Congress.” Although Trump’s lawyers claimed that two separate statutes allow him to get around this provision, the federal appeals court that heard National Park Service thoroughly dismantled that claim in a 101-page opinion.

That said, the Court could potentially hand Trump a victory by prohibiting anyone from bringing a lawsuit against his ballroom to begin with. Should this argument succeed, it could have major ramifications for a wide range of laws that seek to conserve environmental resources or preserve sacred or historical sites.

Under current law, a plaintiff who alleges that a defendant’s actions will illegally damage such a site may file a federal lawsuit so long as they can demonstrate that they plan to visit the site in the near future and will find the site less attractive if it is altered. This is exactly what happened in National Park Service: A member of a conservationist group — the National Trust for Historic Preservation — who often went by the White House said the new construction would diminish the beauty of the site.

More broadly, the Court has long held that plaintiffs who wish to observe something beautiful may often sue to enforce environmental statutes that seek to preserve that beauty. As the Court said in Lujan v. Defenders of Wildlife (1992), a seminal case that is often cited because it laid out limits on who is allowed to bring federal lawsuits, “the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest” that can be asserted in federal court.

Trump’s brief, however, rejects this longstanding rule. Without it, numerous environmental, conservationist, and historical preservation laws could effectively cease to function, because no one would be able to file a lawsuit enforcing them.

The stakes in National Park Service, in other words, are far greater than whether Trump can replace the East Wing with an eyesore. And they are even greater than the question of whether Trump can remake one of America’s most cherished landmarks without congressional authorization. If Trump prevails in National Park Service, he could fundamentally wound America’s environmental protection regime in the process.

Recall that federal law bars new construction on federal lands within the District of Columbia “without express authority of Congress.” So, unless there is some existing statute that allows Trump’s ballroom to move forward, the ballroom is illegal.

But Trump cited no such law in his brief. Instead, he relied on two statutes that might be read to authorize parts of what Trump needs permission to do.

The first is a provision that permits Congress to appropriate money that the president may use to pay for “the care, maintenance, repair, alteration, refurnishing, improvement, air-conditioning, heating, and lighting (including electric power and fixtures) of the Executive Residence at the White House.” But, as the appeals court that ruled against Trump explained, there are numerous reasons why this statute cannot be read to permit the ballroom.

The most straightforward reason is that Congress only gave the president a $2.475 million budget to spend under this statute. But Trump’s lawyers claimed this project will be funded by “approximately $400 million in private donations.” So, even if Trump’s ballroom counts as an “alteration” or “improvement” of the existing “Executive Residence at the White House” — and all three of these points are contested — Trump cannot use his White House maintenance budget to fund a $400 million project.

To get around this problem, Trump’s lawyers argued that the National Park Service is allowed to accept private donations, so it can use donated money to build the ballroom.

But, while it is true that the Park Service may accept donated funds, that doesn’t mean that it can use these funds to tear down an historic federal building and replace it with something completely different. The relevant federal law permits the Park Service to “promote and regulate the use of the National Park System by means and measures that conform to the fundamental purpose of the System units, which purpose is to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”

This law could not be clearer that it calls on the Park Service to “conserve” historic objects such as the East Wing and to leave them “unimpaired for the enjoyment of future generations.” So, if anything, this law prohibits Trump from using Park Service funds to build his ballroom. Tearing down an historical structure and replacing it with a different, much larger, and architecturally distinct structure is the opposite of conservation.

Still, there’s one big reason why Trump’s argument might win over the justices anyway. According to Trump’s brief in the case, the ballroom will sit on top of an enormous bunker that extends five stories underground and that includes “bomb shelters,” “secret military structures and equipment,” and “state of the art hospital and medical facilities.” The lower courts have already permitted construction on this bunker to continue; its legality isn’t before the justices.

Trump’s lawyers’ attempt to characterize the ballroom as part of what their brief calls an “integrated military complex” is savvy, as the courts often defer to the other branches on questions of national security. And Trump’s Justice Department also makes an argument that plausibly could persuade this Supreme Court to rule in Trump’s favor despite the fact that the ballroom has no legal support.

As a general rule, no one is allowed to file a federal lawsuit unless they have been injured in some way by the defendant that they are suing; this requirement is known as “standing.” But the Court has long held that plaintiffs may challenge illegal practices that might alter the aesthetic beauty of a site that is protected by law. As the Court said in Friends of the Earth v. Laidlaw Environmental Services (2000), “environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.’”

Friends of the Earth does not permit literally anyone to challenge any alteration to protected lands or buildings. Such a plaintiff only has standing if they can show that they will visit the site at issue in their lawsuit and that the planned alterations to that site will actually reduce their aesthetic enjoyment of it — but that’s enough.

The plaintiff in National Park Service is a conservationist organization whose members include a professor emerita of architectural history who said that she travels “to the White House neighborhood frequently”; that she “regularly view[s] the White House”; and that she believes that Trump’s proposed ballroom would render the White House less attractive because it would “diminish the primacy of the White House,” because “no longer would the eye be drawn to the jewel of the building at the center,” aka the residential section of the White House complex.

Thus, because organizations are typically allowed to sue on behalf of their members, this conservationist group has standing. They have at least one member who clears the low bar the Court set in Friends of the Earth.

Trump’s brief, however, dismissed this “seeing-is-standing theory,” claiming that the professor’s mere discomfort, produced by “‘observation of conduct” that she disagreed with is “not an injury sufficient to confer standing.” Trump, in other words, is effectively asking the Court to overrule Friends of the Earth, along with many other cases establishing that plaintiffs may often sue over aesthetic injuries.

If that gambit succeeds, the consequences for conservationist laws of all kinds would likely be catastrophic. As the appeals court explained, Trump’s “cramped standing theory would deem no one injured by a decision to raze the Statue of Liberty, to obscure the names on the Vietnam War Memorial, or to install a political billboard atop Mount Rushmore.” It could also prevent private lawsuits against a company that dumps foul-smelling chemicals in a national park.

The whole point of many environmental and historical preservation laws is to ensure that something that Congress believes is beautiful will remain beautiful. If no plaintiff can assert an aesthetic injury, that means that laws intended to preserve pristine, sacred, or historical sites will go unenforced — and may become completely unenforceable.

So, the stakes in National Park Service are quite high. While Trump’s statutory arguments are meritless, this case is potentially an existential threat to numerous environmental laws. The question is whether the justices will be persuaded by some combination of Trump’s attacks on Friends of the Earth and his allusions to national security to upend many decades of established law.