The recent ruling by the U.S. Court of Appeals for the Ninth Circuit, headquartered in Portland, Oregon, siding with BNSF Railway over the estates of two Libby asbestos victims is more than disappointing. It is a masterclass in how distance breeds indifference.
This decision was not handed down in Libby.
Not in Lincoln County.
Not by anyone who has buried a neighbor because of asbestos.
It came from a federal appellate panel sitting in Oregon — judges appointed by presidents far removed from the ground zero of America’s worst environmental public health disaster. Judges whose daily air does not carry the legacy of amphibole fibers. Judges who will never send their children to schools once supplied by equipment circulated through contaminated zones.
And yet they have spoken — with great procedural solemnity — about why a powerful railroad corporation should not bear strict responsibility.
Let’s pause on the irony.
The Ninth Circuit is famous for expansive environmental rulings. This is a court that will stretch statutory interpretation to protect wetlands, insects, obscure fish habitats, and yes — the smallest organisms in fragile ecosystems. It has written opinions that elevate environmental precaution to near-sacred status.
But when it comes to documented human death in rural Montana?
Suddenly restraint is discovered. Suddenly the doctrine of “common carrier” must be handled delicately. Suddenly we are told the law cannot possibly reach this far.
An amoeba gets the benefit of precaution.
A corporation gets the benefit of the doubt.
The people of Lincoln County get footnotes.
Let’s be clear: BNSF was not hauling teddy bears.
For decades, trains carried vermiculite laced with deadly asbestos through Libby’s rail yards and downtown corridors. Evidence presented at trial described visible dust clouds, contaminated cars, and fibers dispersing into neighborhoods where families lived and children played.
This was not theoretical harm.
This was not speculative risk.
This was disease with names and dates on headstones.
And yet the Ninth Circuit concluded that because BNSF operated as a “common carrier,” strict liability could not attach in the way the jury found appropriate.
Translation: when you are big enough, structured properly enough, and protected by the right federal framework, the law becomes very careful about inconveniencing you.
Lincoln County, meanwhile, continues to absorb the consequences.
The contamination did not stop at Libby’s boundary. Equipment and infrastructure circulated throughout the county. School buses reassigned from South Lincoln to North Lincoln transported children who had no connection to the mine — except through shared systems. Dust travels. Fibers embed. Jurisdictional lines mean nothing to airborne carcinogens.
And the trains did not stop in Libby.
BNSF rail lines carried contaminated material across Montana and through neighboring states. Rail workers, maintenance crews, and communities along those routes were placed in potential danger. Contamination rides steel rails as easily as grain or timber.
But from a courtroom in Portland, Oregon, the matter becomes abstract. A doctrinal exercise. A tidy legal question about the scope of liability.
This is the cold comfort of appellate distance: when you do not live with the harm, you can intellectualize it.
To be fair, the judges did not create the asbestos crisis. W.R. Grace mined it. Regulators failed to stop it in time. Local and state institutions faltered in oversight. BNSF transported it.
But when a jury hears evidence and decides that a corporation bears responsibility — and a distant appellate court steps in to narrow that accountability — the message is unmistakable.
Environmental protection, it seems, is sacred — until it threatens a major corporate defendant.
Then the law grows cautious.
Then precedent becomes fragile.
Then humanity becomes secondary to structure.
In Lincoln County, we do not have the luxury of abstraction. We live with oxygen tanks. With pulmonary fibrosis. With mesothelioma diagnoses that arrive decades after exposure.
If the Ninth Circuit wishes to be remembered as a champion of environmental justice, it might consider starting with human beings.
Because here in Montana, we have learned something painfully simple:
When the law protects power more fiercely than it protects people, justice becomes just another word on paper.
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