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D.C. Council Overrides Veto
Of Revised Criminal Code

     The District of Columbia Council last week overrode a veto by the city’s mayor of a bill to overhaul the local criminal code.
     Mayor Muriel E. Bowser (D) said when she vetoed the bill that its reduction in penalties for gun crimes might lead to more homicides and that its jury trial requirements for misdemeanors would overwhelm the courts.
     “This bill does not make us safer,” Bowser wrote in a letter to the D.C. Council to explain her reasons for vetoing it.
     Other members of the D.C. Council disagreed when they voted 12-to-1 to override the veto. Only Trayon White Sr., D-Ward 8, voted against the majority.
     Council members who voted to keep the Revised Criminal Code Act of 2022 said it reflected a lengthy review to update more than century-old laws.
     Charles Allen, D-Ward 6, and Brooke Pinto, D-Ward 2, said in a joint statement the new criminal code is “more equitable and just.” Pinto is replacing Allen as chair of the public safety committee.
     They offered a concession to Bowser by saying the code could be amended before it is implemented. The law would take effect after three years to give the police and courts time to prepare for it.
     Other provisions of the law would eliminate most mandatory minimum sentences and reduce maximum penalties for crimes such as burglary, carjacking and robbery. Its supporters say the sentence reductions are consistent with penalties courts have imposed in recent years.
     Bowser said in her letter to Council Chairman Phil Mendelson (D) that she agreed with 95 percent of the law but opposed provisions she said would weaken “already lenient sentencing for gun possession.” She was referring to reduced maximum penalties for carrying a handgun without a license and being a felon in possession of a gun.
     The vote to override by the D.C. Council faces another hurdle in Congress, which has the option to block city legislation. Republicans in the House are threatening to overturn it.
     For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.

Lawsuit Seeks to Block Pot Smoking
In D.C.’s Multi-Unit Residences

     A homeowner’s lawsuit in D.C. Superior Court pits new rights to possess marijuana against the risk smoking the weed might intrude upon neighbors.
     A Cleveland Park resident says her neighbor’s marijuana smoke is creeping into her home from a downstairs apartment, creating a public nuisance that prompted her to sue.
     The outcome in its first-of-its-kind lawsuit in Washington is likely to determine the limits on use of marijuana in multi-unit dwellings.
     Josefa Ippolito-Shepherd tried asking the neighbor to stop smoking marijuana but she refused. 
     She then appealed to the D.C. Council for help but was told the only way the city could intervene would be by repealing its 2014 law that decriminalized possession of as much as two ounces of marijuana. A repeal based on her request was highly unlikely, she was told.
     Similar disputes are arising nationwide as more states legalize marijuana.
     On one hand, nonsmokers say marijuana smoke has a foul smell that is a potential health hazard. Smokers say the complaints interfere with their right to use the drug in the privacy of their homes.
     California courts appear to be taking the lead in placing restrictions on marijuana smoke. In general, they say marijuana cannot be smoked in residential buildings where other residents complain about it.
     California also bans marijuana smoking from most public gathering places.
     A 2015 Washington Post survey found that 57 percent of local residents said they smelled marijuana at least once a month. Forty-five percent of them said the smell did not bother them while just under 40 percent said it did bother them.
     The health effects of secondhand marijuana smoke still are being studied.
     For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.

Justice Dept. Creates Incentives
For Corporate Self-Disclosure

     A Justice Department official announced a new policy last week during a Georgetown University speech intended to encourage corporations to self-report misconduct.
     The companies could receive sharp discounts on fines and avoid prosecution if they disclose internal wrongdoing and agree to remedy the problems.
     "This revised policy is sending an undeniable message to the public. Come forward, cooperate, remediate," said Assistant Attorney General Kenneth Polite Jr. "We are going to be closely examining how companies discipline bad actors and reward the good ones."
     To qualify for the incentives, the firms must prove they have regulatory compliance and accounting programs that can identify illegal activity. They also must report any allegations as soon as they learn of them.
     Afterward, the Justice Department requires the companies to participate in "extraordinary" cooperation and remediation.
     Companies that self-disclose and cooperate could receive discounts of as much as 75 percent below the normal fines. If they do not self-report but still cooperate in remediation, they could get 50 percent discounts.
     Polite defined extraordinary cooperation as meaning truthfulness and willingness to provide evidence that could help in the prosecution of offenders.
     The incentives Polite announced are only the latest in a crackdown on corporate bad behavior President Joe Biden pledged shortly after taking office.
     In an announcement in September, Deputy Attorney General Lisa Monaco said the Justice Department would base some decisions on whether to prosecute corporate directors on their compensation systems.
     Companies that incentivize regulatory compliance but punish misconduct through compensation would be least likely to be prosecuted. Use of secret messaging apps to conduct business would create suspicions among prosecutors, Monaco said.
     For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.

Environmentalists Fire Back Against Oil Industry
In Lawsuit over Greenhouse Gas Regulation

     Environmentalists tried last week to strike down efforts by oil-industry supporters who are challenging U.S. government warnings about greenhouse gasses.
     They filed a brief that urged a federal appeals court in Washington, D.C., to dismiss a lawsuit by the pro-fossil fuel groups against the Environmental Protection Agency.
     The EPA issued the warnings about health and welfare consequences in 2009 as a pretext to a regulatory crackdown on greenhouse gas emissions.
     The lawsuit by Concerned Household Electricity Consumers Council and others says the EPA is unrealistic in its fossil fuel restrictions while endangering the economy. They also say the EPA warnings are not well-established by science.
     The environmentalists’ brief filed last week says the plaintiffs have no legal basis for a right to sue the EPA.
     They failed to explain how the EPA warnings hurt them or anyone else, which is a prerequisite to any right to sue, the brief says.
     The U.S. Circuit Court of Appeals for the District of Columbia has ruled in previous cases that the EPA findings of danger from greenhouse gasses are well-supported. Other evidence comes from the United Nations and scientific groups.
     "The Clean Air Act and this court's precedents do not lightly allow for relitigation of agency determinations that have been subject to a comprehensive public rulemaking process and judicial review," the environmentalists’ brief says. "Petitioners' briefs fail to grapple with the robust body of law and the great weight of evidence supporting EPA's 2009 finding and its subsequent reaffirmations."
     In 2009, the EPA declared that carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride create a health hazard with current atmospheric concentrations. 
     The D.C. Circuit upheld the EPA’s endangerment warning in its 2012 ruling in Coalition for Responsible Regulation et al. v. EPA et al. The U.S. Supreme Court let the ruling stand on appeal.
     The EPA issued the endangerment warning before beginning a new round of tougher emission regulations on power plants.
     The agency gained greater legal support last year when Congress approved the Inflation Reduction Act. The legislation aims to curb inflation by reducing the deficit, lowering prescription drug prices and by promoting domestic clean energy.
     The Inflation Reduction Act identifies the six greenhouse gasses listed by the EPA’s 2009 endangerment warning as pollutants subject to Clean Air Act regulation.
     "These provisions express Congress's own judgment that each of these compounds falls within the definition of 'air pollutant,' which applies throughout the act," the environmentalists’ brief says. "Furthermore, the Inflation Reduction Act requires that EPA use existing Clean Air Act regulatory authorities to reduce emissions of greenhouse gasses. Because those Clean Air Act provisions authorize EPA to regulate emissions of 'air pollutants,' they further confirm that greenhouse gasses are indeed such pollutants."
     The brief responds to statements made in the lawsuit by the Concerned Household Electricity Consumers Council, which was joined in suing by the FAIR Energy Foundation, the Competitive Enterprise Institute and Texas Public Policy Foundation.
     They petitioned the EPA beginning in 2017 to overturn its endangerment findings but the agency refused. They then sued in federal court to override the EPA.
     The oil industry supporters said the EPA’s endangerment finding has set the nation on "a technically and economically impossible crusade to decarbonize the U.S. economy."
     The lawsuit revives some of the issues in last June’s Supreme Court ruling in West Virginia v. EPA, which infuriated environmentalists.
     The case focused on the EPA’s Clean Power Plan, which required power plants to implement clean energy technology, such as solar panels and wind generators. The EPA drew authority from the Clean Air Act.
     Several states and coal companies sued to block the plan.
     The Supreme Court ruled that Congress never gave the EPA authority to require power plants to use specific technologies to comply with the Clean Air Act. The agency could regulate emissions from existing power plants but not interfere with their choice of how they generate electricity.
     Similarly, Concerned Household Electricity Consumers Council is once again arguing the EPA exceeds its authority with its warning about the greenhouse gasses.
     The case is Concerned Household Electricity Consumers Council et al. v. U.S. Environmental Protection Agency, case number 22-1139, in the U.S. Court of Appeals for the District of Columbia.
     For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.

Government Audits Nursing Home Use
Of Antipsychotic Drugs for Schizophrenia

     The federal government is likely to have created a new opportunity for law firms that handle elder care cases with an announcement last week of a planned review of whether nursing homes are overusing antipsychotic drugs on their residents.
     The drugs are supposed to be used for schizophrenia but the Centers for Medicare and Medicaid Services has received recent reports that some nursing homes also try to sedate patients unnecessarily, often after incorrect diagnoses.
     The drugs are potentially life-threatening if overused.
     “No nursing home resident should be improperly diagnosed with schizophrenia or given an inappropriate antipsychotic,” Health and Human Services Secretary Xavier Becerra said in a statement. “The steps we are taking today will help prevent these errors and give families peace of mind.”
     The audits that begin this month follow a Department of Health and Human Services report last year finding some nursing home residents were coded as having schizophrenia even when they did not show symptoms of the disorder. The symptoms include delusions, hallucinations and confusion.
     The number of nursing homes reporting patients with schizophrenia rose steadily between 2015 and 2019, according to the Health and Human Services inspector general’s report. There were 99 nursing homes that reported 20 percent or more of their residents were schizophrenic.
     The disorder, which normally starts in late adolescence or early adulthood, is found in less than 1 percent of the U.S. population. 
     “The number of unsupported schizophrenia diagnoses increased and in 2019 was concentrated in relatively few nursing homes,” the inspector general’s report concluded.
     The government audits are expected to have a broad impact on the nursing home industry because of the likelihood they will influence each facility’s Medicare quality rating.
     The Centers for Medicare and Medicaid Services is assigned to monitor whether the facilities take corrective action that might be recommended.
    For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.

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