What interest would an environmental group have in battlefied preservation?

September 01, 2014 | By JONATHAN WOOD

The obvious answer is none.

Unless you’re a judge on the D.C. Circuit. Then it has a legally protected interest in having land listed as a historic battlefield in order to shut down any visible productive use of that private property.

As Judge Sentelle explained in dissent, this radically expands access to the courts.

It is true, as the majority states, that [cases] may support a generalization that “injury in fact can be found when a defendant adversely affects a plaintiff’s enjoyment of flora or fauna.” Nonetheless, none of these cases would lead me to suppose that my neighbor has a legally protected right that I have invaded when I trim the grass and behead the clovers, which he enjoys viewing. As the the majority recognizes, “the [environmental group] puts forward no evidence that its members … possess any legal entitlement to set foot on the privately owned property.”

We should call the rule announced by the majority “if you can see it, you can sue it.”

This case concerns an arcane legal doctrine known as standing. In essence, a federal court only has constitutional authority to hear cases that raise actual disputes brought by parties that have standing. To have standing, a plaintiff must have a direct, legally protected right at issue in a case.

In this case, the site of the Battle of Blair Mountain was nominated for the national register of historic places. Regulations provide that a historic place will be listed unless a majority of the affected property owners object. Because listing would forbid surface mining in the area, the people who owned the mineral rights to this private property objected and the site was not listed. Environmental groups challenged the decision not to list as arbitrary. The groups claimed standing on the grounds that their members preferred the landscape to be maintained without strip mining and, though the members have no right to enter the property, they would be able to see strip mining from public roads etc. should it ever occur.

For decades, federal courts have expanded standing in order to give environmental and NIMBY groups a right to challenge private and public activities that affect the environment. This latest decision goes so far that its difficult to imagine any case where NIMBY groups wouldn’t have standing.