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A law that was designed to empower crime victims and give them a stronger voice in the justice system is increasingly being used as a weapon to punish companies accused of environmental crimes.

To the chagrin of corporate defense lawyers, the 2004 Crime Victims Rights Act is increasingly turning up in the government's environmental prosecutions, with victims fighting to be heard, especially at sentencing.

The issue has triggered robust legal debate. Defense lawyers argue that the five-year-old statute is being used for unintended purposes. They also contend it gives prosecutors an unfair advantage by letting them use victims to play on the courts' emotions at sentencing.

But victims' rights advocates counter that people hurt in catastrophes such as explosions or chemical spills deserve a seat at the table -- and a say in the punishment.

Officials with the U.S. Department of Justice were unavailable for comment.

CLASHES IN COURT

The 9th U.S. Circuit Court of Appeals recently ruled that 34 victims could attend the trial -- and testify at sentencing -- of W.R. Grace & Co., accused of "knowingly endangering" the residents of Libby, Mont., by exposing them to asbestos through mining activities.

The ruling reversed a federal judge's decision to exclude the victims from the courtroom, holding that the judge erred in ruling that the "prospective victims do not meet the meaning of 'crime victim' set forth in the Crime Victims' Rights Act." The trial is pending. In re Parker; U.S. v. U.S. District Court and W.R. Grace & Co., nos. 09-70529, 09-70533 (9th Cir.).

In Texas, a federal judge is currently considering whether residents who claimed they suffered health problems due to uncovered oil tanks at a Citgo Petroleum Corp. refinery count as victims. Testifying residents could impact the sentence of Citgo, which was convicted in 2007 of violating air pollution laws. U.S. v. Citgo, No. CR-0-563 (S.D. Texas).

Also in Texas, a $50 million plea agreement involving the deadly BP PLC refinery explosion, which was held up by the families of victims for a year, was ultimately approved in March. The victims families' had argued that the $50 million fine wasn't enough and won a legal fight to have a say in the matter. In the end, the initial deal remained intact. U.S. v. BP Prods. North America Inc., 2008 WL 501321 (S.D. Texas).

"The BP case and the W.R. Grace case are harbingers of things to come," said Paul Cassell, who is representing the victims in the W.R. Grace case and represented victims in the BP case. "It's one of the new areas where crime victims advocates are trying to make sure victims' rights are protected," Cassell said of environmental crimes.

Cassell, a former federal judge who resigned in 2007 to take up the rights of crime victims, could not comment on the W.R. Grace case because a judge has issued a gag order.

But as for whether crime victims in general deserve a greater voice in environmental cases, he said the CVRA gives them that right. "It was designed to make victims participants in the criminal justice process," Cassell said. "And it was designed to extend rights to all victims of crimes -- across the board."

Victims' rights attorney Meg Garvin agreed, stressing that efforts need to undo a false but popular belief that environmental crimes are crimes only against the environment, not humans.

"Individual victims are suffering greatly from environmental crimes," said Garvin, executive director of the National Crime Victim Law Institute at the Lewis & Clark Law School said. "We have to find a way to make them whole. Having that happen in the criminal justice system makes sense because that process is already under way."

DEFENSE LAWYERS AREN'T CONVINCED

"You're blurring the criminal process with the traditional civil process where people can go and get any harm remedied and get compensation. And by blurring the process, I think you're potentially harming and prejudicing defendants' rights," said Jerry Block, a partner at Venable and a former chief of DOJ's environmental crimes section.

Judson W. Starr, also a Venable partner and a former chief of that DOJ section, believes the CVRA is being misused. "I think the act was originally intended for fraud, murder and drug cases, not environmental crimes," said Starr. "I'm feeling that the original intent of the act did not contemplate an array of witnesses as large as the potential is in environmental crimes cases. ... Right now, it puts another party at the table in what is already a complicated environment."

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