Lack of precedence 

Grace decision offers little legal or emotional closure

Moments after a jury acquitted three former W.R. Grace & Co. executives of charges that they knowingly poisoned the town of Libby with asbestos, Mike Crill, a former mine worker dying of asbestos exposure, leaned on a bike rack in front of the Russell Smith Courthouse and sobbed into his arm. 

“They’re guilty of killing us,” he screamed to anyone who would listen.

A few days later, after he’d had time to process the verdict, Crill tried again to put the jury’s decision into perspective. “I’ve been going 150,000 miles an hour here,” he says. “It’s hard to explain for somebody who’s been involved this long, trying to fight for justice and standing up for the people and keeping a face on this, to come to the end of this road and have this be the end of it. It’s just a total numbness.”

Crill’s not the only one feeling numb to the jury’s decision. A guilty verdict would have given Libby residents a chance “for justice,” as Crill puts it, and their disdain for the decision was well documented. But the case was also expected to set legal precedence relating to the Clean Air Act, and that expectation was also unfulfilled with the jury’s verdict.

“The way we work in the legal system is that you kinda have to get to a court of appeals decision to set a precedent,” says University of Montana law professor Andrew King-Reis. “Judge [Donald] Molloy made a lot rulings that are significant, but the court of appeals won’t have the opportunity to review any of the ones made during the trial.”

King-Reis, who advised UM’s Grace Case bloggers during the trial, followed the proceedings as closely as anybody. He explains that Congress enacted the Clean Air Act in 1990 and, since it’s still relatively new, “there are really interesting, important legal questions surrounding the interpretation of the Clean Air Act” that this case was expected to answer.

Typically, King-Reis says, prosecutors use the Clean Air Act to press charges against an employer who, say, has a railroad tanker that needs cleaning. The employer sends workers into the car and the workers become sick as a result of the toxic fumes—and then the employer sends them back in again.

“It’s never been used in a situation where you release something [like asbestos] that is hazardous until it’s cleaned up,” King-Reis says. “There isn’t the immediacy in asbestos exposure that we’ve seen in other Clean Air Act cases. It could have set a very interesting precedent for the Clean Air Act. But because of the posture, I don’t think it has much precedential value.”

King-Reis says the government needed to win its case, forcing Grace’s attorneys to appeal the decision to the Ninth Circuit Court of Appeals.

“A Ninth Circuit [decision] would be binding to all the other judges in the circuit and persuasive to other courts of appeals,” King-Reis says. “But because of the way it worked out, we can’t really assess its precedential value.”

Local environmental lawyer Bill Rossbach was interested to see how the case potentially changed criminal trials involving asbestos. Civil lawsuits have already proven successful, but criminal cases are a completely different ballgame.

“To prove that asbestos is hazardous and caused injury, the burden of proof is that it’s more likely true than not,” he says. “But in a criminal case, it’s beyond a reasonable doubt. This has to do with the difference between making somebody pay you some money and making somebody go to jail…In a criminal case, there has to be an intent to harm. In a civil case, you just have to show that you did cause harm. It’s a very, very different type of lawsuit.”

Former state auditor John Morrison says the lack of precedence isn’t the only issue. He’s worried the verdict may discourage other prosecutors.

“I was proud of the U.S. attorney for bringing the case, but they were trying to accomplish something that had never been accomplished before,” he says. “It’s hard to prove criminal violations in a toxic waste case. Very hard. The case will not have precedential value, but it might discourage some prosecutors from filing these types of cases in the future. I hope it doesn’t.”

The outcome has Crill concerned that the decision sets an unintended precedent outside of the courtroom. He says he’s been given a death sentence after being diagnosed with pleural thickening that will eventually lead to mesothelioma. To see the executives he believes are responsible for his illness walk away free sends a haunting message.

“It’s been a pretty bad blow for us,” he says. “Their stocks are going up now. It’s like they’re being awarded for killing people. I guess you have to walk in my shoes to see this point, but everybody is making a killing off killing us.”
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