Golf. Trump. Lies. And NEPA.

What more could you ask for in a single court opinion?

In a Monday ruling, Judge Ana Reyes told the government to stop work on Trump’s plan to demolish a D.C. public golf course and replace it with one for pro tournaments.  There are intriguing legal issues: whether a President’s social media posts can establish the basis for judicial review; whether golfers have standing to sue to preserve an existing course; how to deal with apparent dishonesty by government lawyers; and last but not least, whether the Supreme Court has eliminated NEPA’s segmentation doctrine.  (That doctrine prevents an agency from avoiding environmental review by carving a single project into small innocuous-seeming pieces.) All of this in a beautifully written opinion by a judge who has lost her patience but not her sense of humor.

The opinion begins: “Rarely, if ever, has the United States Department of Justice urged a federal court not believe the sitting President. Not to believe him that a cabinet secretary has “developed” a federal land project. …Not to believe him that “Restoration work” will begin “IMMEDIATELY!” …Not to believe what the President has repeatedly told the American public.”  “And yet,” Judge Reyes adds, “here we are.”

The case had been before the court for months.  Plaintiffs claimed that the government was planning to demolish the existing golf course and replace  it with a fancier one. Each time they returned to court, they pointed to mounting evidence. But the judge accepted the representation by government lawyers that there was no final decision and that nothing abrupt would be done to the existing course. The lawyer promised to inform the judge in advance if any major action was in the offing.  The government did so at 4:45 on a holiday weekend. The next day, it bulldozed hundreds of trees on the course.  A government lawyer had told an agency official not to mention this plan in a related affidavit.

The judge set a hearing nine days later to determine whether this was part of a plan to redo the course.  The day before the hearing, Trump posted that the Secretary of Interior had a plan to redevelop the course, and hours before the hearing, he added that work would begin “IMMEDIATELY.”  The government continued to claim that there was no plan, something the judge found herself unable to accept.

In terms of standing, the question was whether golfers who frequently used the existing course and took advantage of its special features had standing to sue over its demolition and replacement. In a shadow docket case, the Supreme Court had held that a devotee of historic preservation had no standing to protest Trump’s ballroom plan, even though she walked by the White House frequently.  Judge Reyes correctly rejected the argument that this decision doomed the golfers’ standing. Unlike the ballroom case, in this case the plaintiffs actually used the facility, not merely looked at it from afar.

In the early stage of the litigation, the government’s lawyer had conceded that a plan to demolish and replace the course would require a full-scale environmental review.  The government then broke the project into smaller pieces: first, dump tons of soil on the course; then eliminate trees; then eliminate hundreds more trees; and then, presumably, pursue further stages of demolition and construction.  A longstanding NEPA doctrine held that the government can’t avoid environmental review by artificially subdividing a single project. The government claimed that this doctrine was defunct after the Supreme Court’s decision in the Seven County case, which said that the government could limit review to the single project that it was considering. But there’s no contradiction between that holding and insistence that when the government has a single planned project, it can’t pretend that it has only a series of unrelated projects.

This litigation is obviously not over. President Trump is clearly incensed. He especially disliked the idea that the government had to keep the court up to date about its actions, as it promised to do: “To have to give advanced notices to a judge who has no expertise in Golf, Architecture, Landscaping, Construction, or anything else having to do with building such a World Class Project, is not fair, appropriate, or Constitutional.”

Further litigation is a certainty, with a new hearing already scheduled. But for now we can leave Judge Reyes with the final word: “The Court earlier stated, ‘I am not the Lorax. I do not speak for the trees.’ The Court still does not speak for the trees. It speaks only for the rule of law.”

aesthetic harm, anti-segmentation doctrine, DOJ, DOJ misconduct, NEPA, standing, Trump Administration