WEBVTT - Workers Can Refuse the J&J Shot For Religious Reasons 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.160 --> 0:00:12.840 Johnson and Johnson's use of fetal cells to make its 0:00:12.880 --> 0:00:17.640 COVID nineteen vaccine recently drew concerns from some Catholic leaders. 0:00:18.000 --> 0:00:21.560 Could this spark resistance to taking the shot? Joining me 0:00:21.640 --> 0:00:25.200 is robert Iafola Bloomberg Law reporter, So tell us about 0:00:25.200 --> 0:00:28.880 the J and J vaccine. Yeah, so, Unlike the other 0:00:28.960 --> 0:00:33.559 two vaccines that have so far one approval from the FDA, 0:00:34.320 --> 0:00:37.640 the J and J vaccine were, as part of the 0:00:37.640 --> 0:00:43.840 production of the vaccine itself, used some fetal cells. These 0:00:43.840 --> 0:00:50.400 are not cells from a fetus, but rather clones cells 0:00:50.400 --> 0:00:55.319 from fetuses that were aborted in the nineties. I mean, 0:00:55.440 --> 0:00:57.920 you get into a bit of a ship of THESEUS 0:00:58.000 --> 0:01:01.120 questions as far as you know, at what point does 0:01:01.160 --> 0:01:03.720 it stop being the cell of a fetus? You know, 0:01:03.840 --> 0:01:06.840 it's cloned so many times. But that is both the 0:01:06.880 --> 0:01:12.000 locus of the concern among some Catholics and the Maderna 0:01:12.080 --> 0:01:16.440 and Visor vaccines did not use any clone cells from 0:01:16.440 --> 0:01:22.200 a fetus show those two other vaccines used UM. In 0:01:22.240 --> 0:01:28.039 the testing of the vaccine UM, there were fetle cells used, 0:01:28.120 --> 0:01:31.440 but the difference there's with Jane J who were used 0:01:31.480 --> 0:01:35.120 in the production of the actual vaccine. So now, what's 0:01:35.319 --> 0:01:40.120 the position of the US Council of Bishops and that 0:01:40.240 --> 0:01:45.640 of the Vatican show both of those um organizations, which 0:01:45.640 --> 0:01:49.600 are of course massive leading organizations in the Roman Catholic faith. 0:01:50.080 --> 0:01:54.960 He sort of gave a qualified um okay on using 0:01:55.040 --> 0:02:00.680 the the Jane Ja shot where they recommended avoiding it 0:02:00.920 --> 0:02:04.800 if possible, but basically said that, you know, it's morally 0:02:04.840 --> 0:02:09.400 acceptable to take that vaccine. There is, you know, part 0:02:09.440 --> 0:02:12.600 of the faith about looking out for other people. The 0:02:12.680 --> 0:02:17.760 Pope did get vaccinated, right, both um, the current Pope 0:02:17.840 --> 0:02:22.720 and the former Pope Benedict also got vaccinated. Are their 0:02:22.960 --> 0:02:28.639 organizations or cardinals or archbishops in the US who are 0:02:29.240 --> 0:02:33.360 telling Catholics not to take the J and J shot. 0:02:34.400 --> 0:02:38.560 Some of these very large influential Catholic groups, like the 0:02:38.639 --> 0:02:42.960 US Council of Bishops sort of um gave up qualified okay, 0:02:43.040 --> 0:02:46.639 you know, recommended avoiding it as possible, but but said 0:02:46.639 --> 0:02:49.600 it would be okay. There are a few church leaders 0:02:49.600 --> 0:02:53.520 to avoid stronger opposition to the change shot. One example 0:02:53.600 --> 0:02:56.560 is the Archdiocese of New Orleans. Yeah, they called the 0:02:56.639 --> 0:03:00.239 vaccine morally compromised. I believe there's been a few other 0:03:00.919 --> 0:03:05.520 U S leaders as well. So now, can workers refuse 0:03:05.720 --> 0:03:10.600 the J and J vaccine on religious grounds? Yeah, the 0:03:10.639 --> 0:03:15.120 answer is yes. There are a few recognized ways that 0:03:15.200 --> 0:03:18.639 a worker can object to a workplace mandate, and one 0:03:18.639 --> 0:03:22.840 of those is by raising a religious objection. There's a 0:03:22.880 --> 0:03:26.280 civil rights law, if you know. It's titled seven, and 0:03:26.400 --> 0:03:30.240 it prohibits discrimination in the workplace along a whole bunch 0:03:30.280 --> 0:03:33.680 of different categories, erased sex, these sort of things. In 0:03:33.760 --> 0:03:36.760 religion is one of them. And the e o C, 0:03:37.400 --> 0:03:41.400 the Equal Employment Opportunity Commission, which enforces Title seven. They 0:03:41.400 --> 0:03:43.840 have a very broad definition of religion. You know, it 0:03:43.880 --> 0:03:47.960 doesn't need to be belief in a particular church or 0:03:47.600 --> 0:03:53.160 a god, but any firmly insincerely held moral or ethical belief. 0:03:53.680 --> 0:03:56.960 So in this instance, the Catholic Church has had a 0:03:56.960 --> 0:04:01.760 pretty established opposition to abortion. You know, the church has 0:04:02.160 --> 0:04:05.440 voice opposition to you know, some forms of stem cell 0:04:05.520 --> 0:04:09.120 research because of the use of field cells tied to 0:04:09.240 --> 0:04:12.520 its concern about abortion or opposition to abortion. So in 0:04:12.560 --> 0:04:15.680 this instant, yes, Catholic workers would be able to raise 0:04:16.000 --> 0:04:21.400 a religious objection. How do courts define religious beliefs or 0:04:21.440 --> 0:04:24.640 how do they analyze religious beliefs? Does it have to 0:04:24.640 --> 0:04:30.560 be sincere religious beliefs? Generally speaking, courts don't take uh 0:04:30.880 --> 0:04:37.440 super deep look at of professed religious belief There are 0:04:37.520 --> 0:04:42.440 some examples in history, like with the draft around the 0:04:42.480 --> 0:04:46.720 Vietnam War, where courts were more skeptical. UM courts will 0:04:46.760 --> 0:04:51.640 sometimes be skeptical when it comes to UM prisoners claiming 0:04:51.839 --> 0:04:55.640 religious beliefs for a reason to have a certain privilege 0:04:55.800 --> 0:05:00.760 or avoid a certain aspect of their condition are in jail. 0:05:00.880 --> 0:05:04.240 But when it comes to a worker claiming a religious 0:05:04.240 --> 0:05:08.120 objection to something like a shot um, you know, they 0:05:08.200 --> 0:05:12.120 might look to see, you know, is this plausible. You know, 0:05:12.160 --> 0:05:15.760 it's certainly plausible that a Catholic would have an opposition 0:05:15.880 --> 0:05:22.000 to something that uses clone field cells, and yeah, if 0:05:22.000 --> 0:05:24.359 they sincerely believe it. But again, of courts are not 0:05:24.400 --> 0:05:28.240 in the business of dissecting a person's religious belief and 0:05:28.520 --> 0:05:31.480 really drilling down in there, so that an employer just 0:05:31.560 --> 0:05:34.920 has to take the employee's word. The employee says, I 0:05:34.960 --> 0:05:38.080 have a religious objection to this, so the employer just 0:05:38.160 --> 0:05:41.920 has to accept that. In general, yes, I mean, if 0:05:41.960 --> 0:05:48.039 there's some reason, uh for the employer to doubt the worker. Um. 0:05:48.160 --> 0:05:53.520 The e O se UM they recommend that employers, you know, 0:05:54.120 --> 0:05:59.240 be deferential to claim about faith beliefs made by workers 0:05:59.279 --> 0:06:05.359 because the Title seven coverage of religion and is very broad. Um. 0:06:05.360 --> 0:06:08.719 And there may be religious practices that a worker is 0:06:09.240 --> 0:06:12.000 referring to, our religious beliefs that a worker is referring 0:06:12.040 --> 0:06:15.039 to that an employer just doesn't know about. You know, 0:06:15.160 --> 0:06:19.320 if it's totally unbelievable, you know, applying spetty monster, that's 0:06:19.360 --> 0:06:22.360 sort of a different a kettle of fish. But you know, 0:06:22.400 --> 0:06:26.719 if it's a Catholic claiming opposition to a shot based 0:06:26.760 --> 0:06:31.000 on the use of fetle cells in the vaccine. Um, Yeah, 0:06:31.040 --> 0:06:33.479 that's the sort of thing, then employer will be advised 0:06:33.520 --> 0:06:36.240 to just take the worker at their words. What's an 0:06:36.240 --> 0:06:42.039 employer's defense? What kind of defenses can an employer raise? So, employers, 0:06:42.160 --> 0:06:45.360 while they're generally expected to take workers at their words 0:06:45.400 --> 0:06:48.919 when it comes to claims of religious beliefs, they do 0:06:48.960 --> 0:06:54.760 have a very strong defense. And that's basically would providing 0:06:54.839 --> 0:06:58.720 that accommodation in this case, allowing a worker not to 0:06:58.720 --> 0:07:03.240 get the shot, would that cause an unduburn and the U. S. 0:07:03.240 --> 0:07:07.680 Supreme Court in nine seven decisions came out with a 0:07:07.800 --> 0:07:10.800 very very low bar for what it takes to show 0:07:10.800 --> 0:07:14.040 that it's an undue burden. The Court used the words 0:07:14.080 --> 0:07:16.920 days is a do minimus standard, which is a fancy 0:07:17.040 --> 0:07:21.160 Latin way of saying basically, anything more than trivial is 0:07:21.200 --> 0:07:24.400 going to be an undue burden. That's an extremely strong 0:07:24.440 --> 0:07:29.600 defense for em players in this case. And that standard 0:07:29.640 --> 0:07:34.760 has been criticized. Yes, yes, it's been criticized definitely by 0:07:34.760 --> 0:07:38.520 a lot of religious groups. Of the Justice Department has 0:07:38.880 --> 0:07:42.720 in a case last term. I believe they filed an 0:07:42.760 --> 0:07:47.960 anarchist brief and a case that would have reviewed that standard. 0:07:48.080 --> 0:07:51.040 The Court ended up not taking the case. Um, there's 0:07:51.080 --> 0:07:54.280 no federal judges to have criticized the standard. Again, that 0:07:54.360 --> 0:07:57.680 idea is the minimus of anything more than a trivial, 0:07:57.920 --> 0:08:01.840 anything more than a trifling burden on an employer. Yeah, 0:08:01.840 --> 0:08:05.000 that's something that has come under criticism, Um, in this 0:08:05.120 --> 0:08:10.240 instance with the J and J vaccine. Um, since there 0:08:10.280 --> 0:08:14.000 are two other vaccines that have not received the same 0:08:14.240 --> 0:08:18.800 sort of criticism from some leaders in the Catholic Church. 0:08:19.720 --> 0:08:24.280 When we're talking about an accommodation to an objection to 0:08:24.320 --> 0:08:26.800 the J and J vaccine. What we're talking about is 0:08:27.320 --> 0:08:31.200 waiting until that worker could get a different shot. Um 0:08:31.400 --> 0:08:35.600 show whether that's nondue burden. It's probably going to depend 0:08:35.640 --> 0:08:38.800 on the availability of the other shot. If they have 0:08:38.880 --> 0:08:42.440 to wait weeks, um You know that that seems like 0:08:42.559 --> 0:08:45.040 it would be a lot easier for an employer to 0:08:45.120 --> 0:08:48.120 argue that's an undue burden, rather than if it's just 0:08:48.320 --> 0:08:50.360 a day that they have to wait to let the 0:08:50.400 --> 0:08:53.959 work or get a shot, that it doesn't conflict with 0:08:54.000 --> 0:08:59.440 their face. The Supreme Court, particularly with Amy Coney barrett On, 0:08:59.520 --> 0:09:04.400 it has been very protective of religious rights. Is there 0:09:04.400 --> 0:09:07.680 a case before the Court that might take up this 0:09:07.760 --> 0:09:11.880 issue the standard and change it? So the Court does 0:09:12.000 --> 0:09:17.000 have at least one pending petition asking them to review 0:09:17.080 --> 0:09:20.520 that question. That's not guaranteed that they'll take it up, 0:09:20.880 --> 0:09:22.680 but as I mentioned, there has been a lot of 0:09:22.679 --> 0:09:28.120 criticisms from different areas about that standards, So it seems 0:09:28.120 --> 0:09:31.800 certainly plausible or that's something that could consider a review. 0:09:32.559 --> 0:09:36.400 Just generally, do we know the number of Americans who 0:09:36.520 --> 0:09:39.680 are who don't want to take a vaccine at all? 0:09:40.800 --> 0:09:44.400 They certainly have been polls that are taken periodically. I 0:09:44.440 --> 0:09:48.800 do know that there are certainly pockets of resistance. For example, 0:09:49.760 --> 0:09:53.439 among nursing home employees. This is a work of population 0:09:53.480 --> 0:09:56.679 that's been provided the opportunity to have shots, and the 0:09:56.720 --> 0:10:01.520 refusal rate is approximately sixt So in some areas there 0:10:01.559 --> 0:10:05.600 still continues to be reluctant to take the vaccine, and 0:10:06.400 --> 0:10:08.920 again in some quarters that lauction seems to be growing. 0:10:09.640 --> 0:10:12.480 If you know, have you heard of any lawsuits where 0:10:12.520 --> 0:10:17.559 employers are being sued by employees because they want them 0:10:17.559 --> 0:10:19.520 to take the vaccine or is it just in the 0:10:19.760 --> 0:10:23.439 talking about stage right now? I know at least one 0:10:23.880 --> 0:10:29.720 lawsuit that's been filed in federal court in which worker 0:10:30.400 --> 0:10:39.000 objected to a workplace vaccine mandate. That worker raised concerns 0:10:39.040 --> 0:10:43.520 about the fact that the vaccine was approved under the 0:10:43.640 --> 0:10:48.719 FDA's Emergency Use Authorization, which is definitely different than its 0:10:48.760 --> 0:10:51.960 normal process. As it sounds, it's used to get things 0:10:51.960 --> 0:10:55.200 out when it's an emergency situation, and there is some 0:10:55.880 --> 0:11:01.040 language and um some FDA law that it's quite unclear. 0:11:01.600 --> 0:11:05.240 It does add some lack of clarity there that would 0:11:05.280 --> 0:11:07.240 like to get sorted out in the courts. In this 0:11:07.600 --> 0:11:12.040 lawsuit will probably be the first example of that. Thanks Robert. 0:11:12.280 --> 0:11:17.600 That's Bloomberg Law reporter Robert Iafola. New legal attack on 0:11:17.640 --> 0:11:22.000 the Biden administration's climate agenda from twelve Republican attorneys general 0:11:22.480 --> 0:11:26.560 challenges President Joe Biden's executive order addressing the social cost 0:11:26.600 --> 0:11:30.960 of greenhouse gasses. The Trump administration slashed the values as 0:11:31.000 --> 0:11:34.800 sannia lower cost to emissions, but an interagency working group 0:11:34.960 --> 0:11:39.760 restored Obama era values last month responding to Biden's January 0:11:39.480 --> 0:11:43.360 twenty executive order. The multi state lawsuit led by Missouri 0:11:43.720 --> 0:11:47.600 says the move is an illegal expansion of federal regulatory power. 0:11:48.080 --> 0:11:50.920 Joining me is Pat Parento, a professor of environmental law 0:11:50.960 --> 0:11:54.319 at the Vermont Law School. Pat explain why these states 0:11:54.360 --> 0:11:58.600 are suing. This is the one challenging Biden's executive order, 0:11:58.840 --> 0:12:03.120 which includes the requirement to reinstate the analysis that the 0:12:03.200 --> 0:12:05.240 social cost of carbon, which is of course a way 0:12:05.280 --> 0:12:08.280 of measuring the impacts of climate change from tea level 0:12:08.360 --> 0:12:10.920 rise and wildfires and other things. You know, it's a 0:12:11.000 --> 0:12:15.760 standard practice, obviously for presidents to issue these executive orders. 0:12:16.000 --> 0:12:19.080 They're not final agency actions within the meaning of the 0:12:19.080 --> 0:12:23.200 administrative procedure acts, so the lawsuit is premature, and many 0:12:23.200 --> 0:12:26.240 of my colleagues that legal Academy have pointed out the 0:12:26.280 --> 0:12:28.760 case will be dismissed. It was more of a political 0:12:28.840 --> 0:12:32.640 stunt than a serious lawsuit. None of these social cost 0:12:32.679 --> 0:12:36.199 of carbon analyzes that they've even been done yet. They 0:12:36.200 --> 0:12:38.120 will be coming. I mean, you know, there's gonna be 0:12:38.160 --> 0:12:39.920 a lot of rules. There's going to be the power 0:12:39.960 --> 0:12:43.360 plant rules, and the fuel economy rules, and the methane rules. 0:12:43.360 --> 0:12:45.839 There's gonna be a lot of rulemaking coming up in 0:12:45.880 --> 0:12:50.280 the Biden administration in which this new per Ton number 0:12:50.559 --> 0:12:53.800 that Biden is ordering his agencies to use is going 0:12:53.840 --> 0:12:56.679 to become a subject of litigation. I'm sure of that 0:12:56.800 --> 0:12:59.400 down the road, but as of right now, there's no 0:12:59.440 --> 0:13:03.040 basis for these lawsuits. Did the Trump administration also use 0:13:03.120 --> 0:13:06.400 the social cost of carbon? Yes, it did. It lowered 0:13:06.440 --> 0:13:09.800 it down to one dollar, which is ridiculous. And the Europeans, 0:13:09.840 --> 0:13:13.760 for example, they use figures up in the eighty range. 0:13:14.360 --> 0:13:16.959 And you know, these figures do change over time because 0:13:16.960 --> 0:13:21.880 as the extreme events begin creating even more damaging storms 0:13:21.920 --> 0:13:26.719 like we've seen. Last year was the most damaging hurricane 0:13:26.760 --> 0:13:29.160 season on the Gulf Coast ever in the history of 0:13:29.200 --> 0:13:32.240 the United States, and the wildfires in California the same thing, 0:13:32.280 --> 0:13:36.360 the most destructive wildfires we've ever seen. So the cost 0:13:36.559 --> 0:13:40.640 of climate change are increasing, and therefore that calculation that's 0:13:40.679 --> 0:13:44.319 being done will also increase. But the point is that 0:13:44.600 --> 0:13:48.760 there's another executive order that the conservatives love, and that's 0:13:48.800 --> 0:13:52.200 the order that requires cost benefit analysis for all of 0:13:52.240 --> 0:13:56.199 these rules. And so if you're going to require cost 0:13:56.240 --> 0:13:59.440 benefit analysis for environmental regulations, then you've got to do 0:13:59.480 --> 0:14:03.720 it right. And every economist would tell you that carbon 0:14:04.000 --> 0:14:07.520 pollution has a cost, as does all other kinds of pollution, 0:14:08.040 --> 0:14:09.800 and that you have to figure out a way to 0:14:09.880 --> 0:14:13.240 quantify that cost and included in your analysis. Otherwise your 0:14:13.280 --> 0:14:16.880 analysis is no good. It's not accurate, it doesn't follow 0:14:17.120 --> 0:14:20.800 good sound economic analysis. So you need some kind of 0:14:20.800 --> 0:14:24.920 a model to develop that you can quantify these costs 0:14:24.920 --> 0:14:28.480 from carbon pollution. And that's what the Biden administration is doing. 0:14:29.000 --> 0:14:34.600 I'm struggling to understand what the lawsuit is objecting to 0:14:34.920 --> 0:14:38.440 if the social cost of carbon was used by Trump 0:14:38.880 --> 0:14:42.040 and the Biden administration has just changed the numbers, But 0:14:42.320 --> 0:14:45.440 I have read the actual details of the complaints. They 0:14:45.480 --> 0:14:49.600 are probably arguing that the number is arbitrary, that there 0:14:49.720 --> 0:14:54.360 wasn't an opportunity yet for any kind of public input 0:14:54.640 --> 0:14:58.120 or vetting of the new analysis. And you know, those 0:14:58.160 --> 0:15:00.840 are the kinds of arguments that at the right time, 0:15:00.880 --> 0:15:03.080 in the right case, could be raised. And you know, 0:15:03.120 --> 0:15:05.600 the Biden administration will have to defend the number that 0:15:05.680 --> 0:15:07.320 they've come up with. I don't think they're going to 0:15:07.400 --> 0:15:09.920 have much trouble defending it, but but they will have 0:15:10.000 --> 0:15:11.720 to defend it. They will have to say, well, this 0:15:11.800 --> 0:15:15.120 is what we included in the model as the assumptions 0:15:15.200 --> 0:15:18.160 for what kinds of damages we're trying to calculate. Here, 0:15:18.200 --> 0:15:20.920 we're looking at the past extreme weather events, and we 0:15:21.000 --> 0:15:24.520 do have actual numbers and calculations for those, and we 0:15:24.600 --> 0:15:26.920 put those into the model. And then we put the 0:15:27.000 --> 0:15:29.880 science of what's happening with climate change into the model. 0:15:30.120 --> 0:15:33.080 How much sea level rise are we actually seeing and 0:15:33.120 --> 0:15:36.000 the answer is we're seeing a lot more than the 0:15:36.120 --> 0:15:40.360 models were originally projecting. And how much flooding are we 0:15:40.440 --> 0:15:43.760 seeing in Miami, well just about every day and so forth. 0:15:43.800 --> 0:15:47.400 So Biden administration will have to have a record that 0:15:47.520 --> 0:15:50.800 demonstrates that the number they chose is reasonable. You know, 0:15:50.840 --> 0:15:53.480 the courts aren't going to dictate what the number should be, 0:15:53.640 --> 0:15:56.840 but they're going to demand that the administration justified the 0:15:56.920 --> 0:16:00.440 number that it picks. There's also a constitutional claim based 0:16:00.440 --> 0:16:04.640 on separation of powers. Yeah, this is what's called the 0:16:04.680 --> 0:16:08.680 non delegation doctrine. And this is a real reach because 0:16:08.800 --> 0:16:14.640 usually that's a claim against the statutes, the Congress and acts. 0:16:14.640 --> 0:16:17.920 And the most famous case, uh and the opinion by 0:16:17.920 --> 0:16:22.240 the late Justice Scalia none other is the American Trucking 0:16:22.240 --> 0:16:26.360 Association case, in which Scalia wrote an opinion for unanimous 0:16:26.360 --> 0:16:30.600 Supreme Court upholding e p AS authority to set air 0:16:30.680 --> 0:16:35.720 quality standards based only on public health, regardless of costs. 0:16:36.520 --> 0:16:40.320 And the question was, when Congress delegates to e p 0:16:40.520 --> 0:16:45.880 A that kind of, you know, incredibly powerful sweeping authority, 0:16:45.920 --> 0:16:48.760 is that actually giving e p A too much authority? 0:16:48.880 --> 0:16:51.760 That's what the non delegation doctrine is all about, where 0:16:51.800 --> 0:16:57.880 Congress is abdicating its responsibility to set more defined policy 0:16:57.920 --> 0:17:00.960 guidance for the agency. But as I say, the Court 0:17:01.080 --> 0:17:05.280 voted unanimously in American Trucking and saying the delegation of 0:17:05.320 --> 0:17:08.160 authority the e p A to quote protect the public 0:17:08.359 --> 0:17:12.320 health and welfare. That language was enough to authorize e 0:17:12.440 --> 0:17:15.520 PA to say, we are going to base air quality 0:17:15.640 --> 0:17:19.520 standards on public health data and you know, the advice 0:17:19.560 --> 0:17:23.080 of the medical profession and so forth in setting these numbers, 0:17:23.160 --> 0:17:25.320 and we're not going to take into account how much 0:17:25.359 --> 0:17:28.400 is it gonna cost to protect the public health. So 0:17:28.880 --> 0:17:32.199 the idea that now, uh, these states that have challenged 0:17:32.240 --> 0:17:36.600 Biden's executive order, that's not even legislation, that's just Biden 0:17:36.720 --> 0:17:39.280 telling his agencies this is the way in which I 0:17:39.320 --> 0:17:42.679 would I want you to calculate these costs. So it 0:17:42.800 --> 0:17:47.399 isn't even a delegation of authority from Congress. It's Biden saying, 0:17:47.760 --> 0:17:51.000 this is how I want my administration to conduct the 0:17:51.080 --> 0:17:54.959 proper economic analysis of the rules that were adopting. So 0:17:55.359 --> 0:17:58.840 I don't think this non delegation doctrine has any legs 0:17:58.880 --> 0:18:02.760 at all In challenge Biden's order. Former President Trump was 0:18:02.800 --> 0:18:07.399 the king of executive orders. How did challenges against his 0:18:07.600 --> 0:18:11.760 orders his executive orders fair and court? Well, the one 0:18:11.840 --> 0:18:14.360 that did break through was the travel band, But that 0:18:14.400 --> 0:18:17.600 one actually had immediate impacts on people. If you remember, 0:18:17.880 --> 0:18:20.720 people were stuck in airports all over the world, some 0:18:20.920 --> 0:18:23.479 even even in some cases Americans. They may have been 0:18:23.520 --> 0:18:27.000 of multiple you know, multi ethnic origin, but they were 0:18:27.040 --> 0:18:30.119 American citizens couldn't even get back to the country. So 0:18:30.160 --> 0:18:33.080 in those cases, the courts are saying, we're an executive 0:18:33.160 --> 0:18:38.520 order like that has immediate impact injury. The individuals who 0:18:38.560 --> 0:18:41.200 can come to court and swear under oath of course 0:18:41.600 --> 0:18:44.040 that they are being impacted by this order. That's a 0:18:44.119 --> 0:18:48.119 different case altogether. But in the other kinds of executive orders, 0:18:48.119 --> 0:18:51.600 where there wasn't that kind of immediate injury or impact 0:18:51.680 --> 0:18:55.320 from the order, the courts would routinely reject challenges to 0:18:55.359 --> 0:18:59.080 those kinds of orders. The government's defense, the go to defense, 0:18:59.240 --> 0:19:02.359 is the boiler plate language in the executive order at 0:19:02.400 --> 0:19:07.160 the bottom. Yeah, these modern executive orders all included provision 0:19:07.240 --> 0:19:11.320 saying there are no rights or responsibilities created by this order. 0:19:11.640 --> 0:19:14.880 It is not enforceable in court. And the courts by 0:19:14.920 --> 0:19:18.320 and large have accepted that and basically said that's right. 0:19:18.359 --> 0:19:22.840 These orders. The courts view them as housekeeping orders. You know, 0:19:23.119 --> 0:19:27.080 as the president of the executive branch, these are instructions 0:19:27.119 --> 0:19:31.800 to his cabinet officers for how he wants his administration 0:19:31.840 --> 0:19:35.080 to conduct business. And you'll notice in this executive order, 0:19:35.119 --> 0:19:38.879 and in other orders, there's always a line that says this, 0:19:39.320 --> 0:19:43.480 the direction is always consistent with statutory authority. In other words, 0:19:43.760 --> 0:19:48.439 executive orders can't amend legislation and they can't contradict, you know, 0:19:48.520 --> 0:19:52.600 the direction from Congress. But because Congress always gives agencies 0:19:52.640 --> 0:19:56.920 an awful lot of discretion, and these statutes contain very broad, 0:19:57.160 --> 0:20:00.879 general and and oftentimes ambiguous language, there's a lot of 0:20:00.920 --> 0:20:04.840 interpretation that has to happen. And these executive orders are 0:20:04.920 --> 0:20:09.119 directions to the agencies as to how they should exercise 0:20:09.200 --> 0:20:13.680 their discretion consistent with the statutory authority. So the orders 0:20:13.720 --> 0:20:16.959 themselves aren't making new law, they aren't creating new rules. 0:20:17.280 --> 0:20:20.440 They're telling the agencies these are the kinds of policies, 0:20:20.520 --> 0:20:23.560 of course I want you to consider and incorporate. And 0:20:23.640 --> 0:20:26.960 also in the case of social cost of carbon, this 0:20:27.040 --> 0:20:30.360 is the procedure, this is the process that I want 0:20:30.400 --> 0:20:33.959 you to follow. And this social cost of carbon model 0:20:34.080 --> 0:20:38.320 that they used was developed by seventeen agencies, So it's 0:20:38.359 --> 0:20:41.560 a it's a large inter agency working group comprised of 0:20:41.600 --> 0:20:45.720 economists and technical people, so it isn't even just the 0:20:45.800 --> 0:20:50.000 White House dictating this particular number it's the White House 0:20:50.000 --> 0:20:54.159 saying this agency inter agency working group should be re 0:20:54.480 --> 0:20:58.680 established trumpet abolished, it should be re established, and it 0:20:58.760 --> 0:21:01.199 should be the one to go to to look for 0:21:01.240 --> 0:21:04.720 guidance on how to do this. Since everyone seems to 0:21:04.720 --> 0:21:07.320 agree that this is not this lawsuit is not going 0:21:07.359 --> 0:21:11.720 to survive, is it then a publicity stunt? Sort of? Yeah, 0:21:11.720 --> 0:21:14.280 I would call it a publicity stunt. It's not all 0:21:14.280 --> 0:21:17.840 of the states that we're attacking the Obama administration's environmental 0:21:17.880 --> 0:21:20.040 rules and climate rules, but it's a lot of the 0:21:20.119 --> 0:21:24.119 same states. They're all Republicans controlled state attorneys general that 0:21:24.160 --> 0:21:27.000 are suing, and I mean, I guess they just want 0:21:27.119 --> 0:21:30.359 some some publicity and some attention, and and it's a 0:21:30.359 --> 0:21:33.520 warning shot, you know as well. I mean, they probably 0:21:33.560 --> 0:21:36.240 realized in their heart of hearts that this case isn't 0:21:36.280 --> 0:21:38.760 going to survive. But it's a warning shot to the 0:21:38.760 --> 0:21:42.000 Adviten administration of what's going to be coming. So that's fine. 0:21:42.080 --> 0:21:44.480 That seems to be the era we're in where it's 0:21:44.520 --> 0:21:49.040 partisan warfare, you know, not conducting the public's business necessarily 0:21:49.080 --> 0:21:52.119 in a very rational way. But it is what it is. 0:21:52.280 --> 0:21:55.119 That's the kind of world we're living. In I was 0:21:55.280 --> 0:21:58.440 very surprised because Texas was the first state to sue 0:21:58.480 --> 0:22:02.040 the Body administration. Tex has led so many of the 0:22:02.119 --> 0:22:05.840 lawsuits against the Obama administration, and Texas is nowhere to 0:22:05.840 --> 0:22:09.240 be found in this lawsuit. Yeah, neither is West Virginia, 0:22:09.240 --> 0:22:12.159 which surprised a lot of people because Patrick Morrissey, the 0:22:12.160 --> 0:22:14.760 Attorney General of West Virginia, led the charge. He and 0:22:14.800 --> 0:22:18.479 Scott Threwitt, of course from Oklahoma, led the charge against 0:22:18.480 --> 0:22:20.960 the Obama rules and they didn't join. And that might 0:22:21.240 --> 0:22:23.840 that might actually reflect that they looked at this case 0:22:23.880 --> 0:22:26.359 and said, this is not a good case. We don't 0:22:26.400 --> 0:22:28.439 need to be jumping the gun here. We're gonna have 0:22:28.520 --> 0:22:32.040 plenty of opportunities to sue Biden. Let's pick our target 0:22:32.720 --> 0:22:35.639 for cases that have a better chance. Turning to another 0:22:35.720 --> 0:22:40.399 environmental issue, I think most environmentalists breathed a sigh of 0:22:40.440 --> 0:22:45.440 relief when Joe Biden became president because of his environmental concerns. 0:22:45.800 --> 0:22:49.280 But now the Biden administration is throwing its legal weight 0:22:49.520 --> 0:22:53.080 behind the Penny's pipeline in a high stake Supreme Court 0:22:53.119 --> 0:22:57.240 case that could affect natural gas projects across the US. 0:22:57.520 --> 0:23:00.840 The Justice Department is urging the High Court to overturn 0:23:00.880 --> 0:23:04.720 a ruling that had blocked Pennies from using federal eminent 0:23:04.760 --> 0:23:08.760 domain authority to take New Jersey land along the one 0:23:08.800 --> 0:23:13.000 billion dollar project's route. So this came as a surprise 0:23:13.160 --> 0:23:16.480 to a lot of people, especially because one of Biden's 0:23:16.560 --> 0:23:21.280 first moves was to stop the Keystone Excel pipeline. So 0:23:21.359 --> 0:23:24.360 why do you think the administration is backing the Pennies 0:23:24.520 --> 0:23:28.280 pipeline at the Supreme Court. Oh yeah, that's an interesting one, 0:23:28.359 --> 0:23:31.119 isn't it. So you know, eminent domain authority can be 0:23:31.240 --> 0:23:33.199 used for good or bad. I guess from from an 0:23:33.280 --> 0:23:36.920 environmental standpoint, I think one of the concerns the administration 0:23:37.000 --> 0:23:40.600 has is what if we wanted to approve a solar array, 0:23:41.400 --> 0:23:45.320 or a wind farm or an offshore wind project, you 0:23:45.359 --> 0:23:48.840 know the states we're trying to oppose that that Maybe 0:23:48.920 --> 0:23:51.119 some of the concern here is that they want the 0:23:51.160 --> 0:23:54.639 authority to be able to install the infrastructure for the 0:23:54.680 --> 0:23:58.000 clean energy economy they want to build. If that's the case, 0:23:58.080 --> 0:24:02.960 if that's the thinking behind biden administration support for condemning 0:24:03.000 --> 0:24:06.920 State Land to build an interstate pipeline, what I would 0:24:06.960 --> 0:24:10.719 say is a better approach would be to you know, 0:24:10.800 --> 0:24:12.960 get you'd have to get legislation to do this, but 0:24:13.040 --> 0:24:17.199 they have a statute that authorizes the use of eminent 0:24:17.240 --> 0:24:20.440 domain but put limits on it. And frankly, you could 0:24:20.440 --> 0:24:23.600 make an argument now, and of course, consistent with the 0:24:23.600 --> 0:24:28.199 Biden administration's statements that we're in a climate crisis, you 0:24:28.200 --> 0:24:31.000 could make an argument that eminent domain should not be 0:24:31.200 --> 0:24:35.680 used to construct further fossil fuel infrastructure because we can't 0:24:35.800 --> 0:24:38.119 use it all. The science is telling us you're not 0:24:38.160 --> 0:24:41.520 going to be able to be using interstate gas pipelines 0:24:41.880 --> 0:24:44.800 for the next thirty or forty or fifty years, which 0:24:44.840 --> 0:24:48.840 is what they require to repay the tremendous capital costs 0:24:48.840 --> 0:24:52.639 to build them. These are multibillion dollar projects we're talking about. 0:24:52.920 --> 0:24:55.639 You don't build those things and then operate them, you know, 0:24:55.760 --> 0:24:58.760 for five or ten years, And the science is telling 0:24:58.840 --> 0:25:01.960 us that's all we've got basically to get serious about 0:25:02.000 --> 0:25:07.000 decarbonizing the energy sector, the transportation sector, and other sectors. 0:25:07.040 --> 0:25:13.400 So you could deploy eminent domain more strategically to advantage 0:25:13.520 --> 0:25:17.359 clean energy and not dirty energy, but that's not what 0:25:17.480 --> 0:25:21.160 we have right now. The Natural Gas Act doesn't distinguish, 0:25:21.200 --> 0:25:24.800 of course, between you know, good projects and bad projects. 0:25:25.080 --> 0:25:29.280 It authorizes eminent domain for all gas pipeline projects. So 0:25:29.520 --> 0:25:33.800 the Biden administration is sticking with the current status of 0:25:33.840 --> 0:25:37.080 the law of eminent domain because I think it wants 0:25:37.119 --> 0:25:39.200 to use it. For example, that they've got a big 0:25:39.240 --> 0:25:43.320 push to electrify the transportation system, you know, to build 0:25:43.320 --> 0:25:46.480 the kind of clean energy system we need. For example, 0:25:46.520 --> 0:25:49.040