On Public Plaintiffs and Private Harms: The Standing of Municipalities in Climate Change, Firearms, and Financial Crisis Litigation

For more than a decade, cities have taken a lead role in the use of affirmative tort litigation to combat some of the most pressing issues of the day: global climate change, the proliferation of firearms and the sale and marketing of subprime mortgage products. To date, with some exceptions, these actions have only had limited success in terms of securing outright court victories. Defendants in these cases have raised successful defenses to some of these actions, including the following: that their conduct was not the proximate cause of the harms the cities alleged; that the issues raised by the cities were pre-empted by state or federal law; or that the cities, as plaintiffs, lacked the requisite standing to sue. If cities are to continue to use litigation as a tool to tackle these and other social problems, they will have to overcome these defenses. This article attempts to assess the current state of the law with respect to one of these defenses: i.e., the standing of municipalities to bring litigation to remedy the harms caused by private parties within city limits. For this analysis, I analyze the decisions of courts handling three types of municipal lawsuits that have become prevalent: suits by municipalities against the firearms industry, suits by municipalities against financial institutions in the wake of the financial crisis, and suits by government and private plaintiffs against the emitters of greenhouse gas emissions alleged to be responsible for some of the harmful effects of climate change. As part of this analysis, I will take an in-depth look at the decision, from 2007, of the U.S. Supreme Court in Massachusetts v. EPA.Several conclusions can be drawn from this analysis. First, when courts assess the standing of municipalities suing under nuisance theories, they fail to recognize that the traditional approach to public nuisances actions under the common law often permitted municipalities to bring suits on their own, to prevent harm to their constituents. Instead of recognizing this common law right, courts often espouse a narrow reading of standing doctrine to defeat these municipalities’ standing: deploying what is often called a “private-law model” of standing. This private-law model claims to recognize only the types of “cases” and “controversies” that were available under “traditional” causes of action. Yet, in the context of public nuisance actions, the common law often recognized municipal plaintiffs as the proper parties to challenge the action of private actors carrying out a public nuisance. As a result, the private-law model of standing should recognize the common law’s acceptance of municipalities as proper parties to challenge the presence of public nuisances. Historically, courts of equity entertained such actions and did not question the “standing” of municipal plaintiffs; they simply assessed those municipalities’ claims on the merits to determine whether they had, in fact, proven that the defendants were causing public nuisances. As the following discussion of municipal actions sounding in public nuisance makes clear, despite a common law history that recognized the right of municipal plaintiffs to bring actions on behalf of their constituents, many courts are deploying standing doctrine using a private-law model to prevent municipalities from bringing such actions, actions that were long recognized under the common law. Such courts require that the municipal plaintiffs, in effect, make a showing of special damages in order to satisfy standing requirements, despite the fact that, for centuries, courts have recognized that municipalities could assert claims of public nuisance without any claim of such special damages. Thus, current standing jurisprudence, which looks at municipalities as having no special “public law” right (i.e., the right to challenge actions causing harm to others), is flawed, particularly when dealing with public nuisance actions filed by municipalities. Such jurisprudence fails to take into account that, under the common law, municipalities, like states, were able to bring suits in their own name for nuisances committed within their borders. In light of this history, a re-evaluation of standing law as it relates to the standing of municipalities when bringing nuisance actions is therefore in order.What also emerges from this review is that when courts are determined to utilize the private-law model of standing in cases filed by municipal plaintiffs, such parties are in the strongest position to satisfy the standing requirement when they assert rights as property owners and when they allege a reduction in their tax base due to the direct actions of defendants. This is true even when other forces might also impact the value of the property municipalities hold in a proprietary capacity or might cause a reduction in the value of the properties making up the local tax base. In this way, municipal plaintiffs are most likely in their strongest position when they characterize the injuries they suffer as “private” harms, as opposed to the harms suffered by them as “public” - that is, governmental - litigants.