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When things happen that seem illegal, most Americans assume that they can seek relief from our judicial system. That is not always the case. For a lawsuit to be heard in Court, the plaintiff must have legal “standing”. This requirement comes from Article III of the Constitution, which requires that only “cases” or “controversies” can be heard by Courts. This requirement helps protect our judicial system from being bogged down by frivolous legal actions, but it can also serve as a difficult barrier even for worthy plaintiffs.

Legal standing tests help Courts determine whether a matter is indeed a “case” or “controversy” that’s ripe for judicial review. Standing tests typically consider the relevant facts and the nature of the parties. For example, most standing tests require that a plaintiff satisfy these three elements:

1. Injury in Fact

The plaintiff must have suffered, or be in imminent danger of suffering, a concrete and particularized injury. The injury can be economic, environmental, aesthetic, or otherwise, but it cannot be hypothetical or generalized.

2. Causation

There must be a causal connection between the defendant’s conduct and the injury; in other words, the injury must be fairly traceable to the defendant’s actions.

3. Redressability

It must be likely (and not merely speculative) that the court can provide a remedy that will redress the injury.

If a plaintiff fails to satisfy even one of these three elements, they will be found to lack standing. However, in addition to these criteria, there are several other tests that can provide a basis for plaintiffs to have standing. For example, third-party standing is possible when the litigant has a close relationship with a party (such as a family member) who has standing, and there is a hindrance preventing that person from suing directly (like incapacity). Some laws also establish their own statutory standing tests, like Section 505 of the Clean Water Act. In historic preservation, by far the most important type of standing is organizational standing. Generally, an organization such as a historic preservation non-profit can file suit on behalf of its members if:

1. Any number of its members have standing individually (i.e. they pass the standard 3-part test above).
2. The issue is germane to the organization’s purpose.
3. The case doesn’t require each member’s direct participation.

Local, statewide, and national historic preservation organizations frequently rely on their organizational standing to file lawsuits to protect our nation’s historic resources. Unfortunately, when historic preservation advocates and organizations file lawsuits, one of the most common arguments made by defendants is that historic preservationists lack standing. In the past year, the National Trust for Historic Preservation has participated in two such cases where the defendants argued that historic preservation organizations lacked standing.

Arizona Preservation Foundation and Tucson Historic Preservation Foundation v. Pima Community College

The Superior Court ruled in favor of Pima Community College, but did not address the issue of standing. The plaintiffs appealed, and the National Trust submitted an amicus brief in support of the plaintiffs. The National Trust was moved to participate in the case because an unfavorable ruling by the Court of Appeals concerning standing would have made Arizona’s most important historic preservation law effectively unenforceable. Ultimately, the Court of Appeals issued its opinion on April 3, 2025, and while the court ruled against the preservation groups on the merits, the Court declined to address the issue of standing, based on a concession by Pima Community College that the record was not sufficiently developed on that issue. As a result, the decision has not undermined the ability of Arizona’s historic preservation organizations to file similar lawsuits in the future.

Historic Fredericksburg Foundation, Inc. v. City of Fredericksburg City Council

Historic Fredericksburg Foundation challenged that decision in court, and after the Circuit Court and the Court of Appeals both upheld the City Council’s decision, the case is now pending before the Virginia Supreme Court.

The National Trust’s amicus brief focused on the potential ramifications of the case for historic preservation advocates in Virginia. If the Court of Appeals decision is left in place by the Virginia Supreme Court, local governments would gain the power to prevent historic preservation organizations from challenging their demolition decisions by denying them standing. Oral arguments have not yet been scheduled in the case, and the demolition of the historic building is enjoined while the case is still pending.

Importance of Standing

In both of these cases, the National Trust’s legal advocacy team participated in litigation to help fight for the right of historic preservation organizations to enforce compliance with historic preservation laws, and to have their cases heard in court. This is directly relevant to the National Trust’s congressional charter to “facilitate public participation” in historic preservation. In both of these cases, the defendants put forth multi-faceted arguments that challenged the standing of historic preservation organizations statewide.