Workers Can Refuse the J&J Shot For Religious Reasons

production of the vaccine itself, used some fetal cells. These are not cells from a fetus, but rather clones cells from fetuses that were aborted in the nineties. I mean, you get into a bit of a ship of THESEUS questions as far as you know, at what point does it stop being the cell of a fetus? You know, it's cloned so many times. But that is both the locus of the concern among some Catholics and the Maderna and Visor vaccines did not use any clone cells from

a fetus show those two other vaccines used UM. In the testing of the vaccine UM, there were fetle cells used, but the difference there's with Jane J who were used in the production of the actual vaccine. So now, what's the position of the US Council of Bishops and that of the Vatican show both of those um organizations, which are of course massive leading organizations in the Roman Catholic faith.

He sort of gave a qualified um okay on using the the Jane Ja shot where they recommended avoiding it if possible, but basically said that, you know, it's morally acceptable to take that vaccine. There is, you know, part of the faith about looking out for other people. The Pope did get vaccinated, right, both um, the current Pope and the former Pope Benedict also got vaccinated. Are their organizations or cardinals or archbishops in the US who are telling Catholics not to take the J and J shot.

Some of these very large influential Catholic groups, like the US Council of Bishops sort of um gave up qualified okay, you know, recommended avoiding it as possible, but but said it would be okay. There are a few church leaders to avoid stronger opposition to the change shot. One example is the Archdiocese of New Orleans. Yeah, they called the vaccine morally compromised. I believe there's been a few other U S leaders as well. So now, can workers refuse

the J and J vaccine on religious grounds? Yeah, the answer is yes. There are a few recognized ways that a worker can object to a workplace mandate, and one of those is by raising a religious objection. There's a civil rights law, if you know. It's titled seven, and it prohibits discrimination in the workplace along a whole bunch of different categories, erased sex, these sort of things. In religion is one of them. And the e o C,

the Equal Employment Opportunity Commission, which enforces Title seven. They have a very broad definition of religion. You know, it doesn't need to be belief in a particular church or a god, but any firmly insincerely held moral or ethical belief. So in this instance, the Catholic Church has had a pretty established opposition to abortion. You know, the church has voice opposition to you know, some forms of stem cell research because of the use of field cells tied to

its concern about abortion or opposition to abortion. So in this instant, yes, Catholic workers would be able to raise a religious objection. How do courts define religious beliefs or how do they analyze religious beliefs? Does it have to be sincere religious beliefs? Generally speaking, courts don't take uh super deep look at of professed religious belief There are some examples in history, like with the draft around the

Vietnam War, where courts were more skeptical. UM courts will sometimes be skeptical when it comes to UM prisoners claiming religious beliefs for a reason to have a certain privilege or avoid a certain aspect of their condition are in jail. But when it comes to a worker claiming a religious objection to something like a shot um, you know, they

might look to see, you know, is this plausible. You know, it's certainly plausible that a Catholic would have an opposition to something that uses clone field cells, and yeah, if they sincerely believe it. But again, of courts are not in the business of dissecting a person's religious belief and really drilling down in there, so that an employer just has to take the employee's word. The employee says, I have a religious objection to this, so the employer just

has to accept that. In general, yes, I mean, if there's some reason, uh for the employer to doubt the worker. Um. The e O se UM they recommend that employers, you know, be deferential to claim about faith beliefs made by workers because the Title seven coverage of religion and is very broad. Um. And there may be religious practices that a worker is referring to, our religious beliefs that a worker is referring

to that an employer just doesn't know about. You know, if it's totally unbelievable, you know, applying spetty monster, that's sort of a different a kettle of fish. But you know, if it's a Catholic claiming opposition to a shot based on the use of fetle cells in the vaccine. Um, Yeah, that's the sort of thing, then employer will be advised to just take the worker at their words. What's an

employer's defense? What kind of defenses can an employer raise? So, employers, while they're generally expected to take workers at their words when it comes to claims of religious beliefs, they do have a very strong defense. And that's basically would providing that accommodation in this case, allowing a worker not to get the shot, would that cause an unduburn and the U. S. Supreme Court in nine seven decisions came out with a very very low bar for what it takes to show

that it's an undue burden. The Court used the words days is a do minimus standard, which is a fancy Latin way of saying basically, anything more than trivial is going to be an undue burden. That's an extremely strong defense for em players in this case. And that standard has been criticized. Yes, yes, it's been criticized definitely by a lot of religious groups. Of the Justice Department has

in a case last term. I believe they filed an anarchist brief and a case that would have reviewed that standard. The Court ended up not taking the case. Um, there's no federal judges to have criticized the standard. Again, that idea is the minimus of anything more than a trivial, anything more than a trifling burden on an employer. Yeah, that's something that has come under criticism, Um, in this

instance with the J and J vaccine. Um, since there are two other vaccines that have not received the same sort of criticism from some leaders in the Catholic Church. When we're talking about an accommodation to an objection to the J and J vaccine. What we're talking about is waiting until that worker could get a different shot. Um show whether that's nondue burden. It's probably going to depend

on the availability of the other shot. If they have to wait weeks, um You know that that seems like it would be a lot easier for an employer to argue that's an undue burden, rather than if it's just a day that they have to wait to let the work or get a shot, that it doesn't conflict with their face. The Supreme Court, particularly with Amy Coney barrett On, it has been very protective of religious rights. Is there a case before the Court that might take up this

issue the standard and change it? So the Court does have at least one pending petition asking them to review that question. That's not guaranteed that they'll take it up, but as I mentioned, there has been a lot of criticisms from different areas about that standards, So it seems certainly plausible or that's something that could consider a review. Just generally, do we know the number of Americans who are who don't want to take a vaccine at all?

They certainly have been polls that are taken periodically. I do know that there are certainly pockets of resistance. For example, among nursing home employees. This is a work of population that's been provided the opportunity to have shots, and the refusal rate is approximately sixt So in some areas there still continues to be reluctant to take the vaccine, and again in some quarters that lauction seems to be growing.

If you know, have you heard of any lawsuits where employers are being sued by employees because they want them to take the vaccine or is it just in the talking about stage right now? I know at least one lawsuit that's been filed in federal court in which worker objected to a workplace vaccine mandate. That worker raised concerns about the fact that the vaccine was approved under the FDA's Emergency Use Authorization, which is definitely different than its

normal process. As it sounds, it's used to get things out when it's an emergency situation, and there is some language and um some FDA law that it's quite unclear. It does add some lack of clarity there that would like to get sorted out in the courts. In this lawsuit will probably be the first example of that. Thanks Robert.

That's Bloomberg Law reporter Robert Iafola. New legal attack on the Biden administration's climate agenda from twelve Republican attorneys general challenges President Joe Biden's executive order addressing the social cost of greenhouse gasses. The Trump administration slashed the values as sannia lower cost to emissions, but an interagency working group restored Obama era values last month responding to Biden's January

twenty executive order. The multi state lawsuit led by Missouri says the move is an illegal expansion of federal regulatory power. Joining me is Pat Parento, a professor of environmental law at the Vermont Law School. Pat explain why these states are suing. This is the one challenging Biden's executive order, which includes the requirement to reinstate the analysis that the social cost of carbon, which is of course a way of measuring the impacts of climate change from tea level

rise and wildfires and other things. You know, it's a standard practice, obviously for presidents to issue these executive orders. They're not final agency actions within the meaning of the administrative procedure acts, so the lawsuit is premature, and many of my colleagues that legal Academy have pointed out the case will be dismissed. It was more of a political stunt than a serious lawsuit. None of these social cost of carbon analyzes that they've even been done yet. They

will be coming. I mean, you know, there's gonna be a lot of rules. There's going to be the power plant rules, and the fuel economy rules, and the methane rules. There's gonna be a lot of rulemaking coming up in the Biden administration in which this new per Ton number that Biden is ordering his agencies to use is going to become a subject of litigation. I'm sure of that down the road, but as of right now, there's no basis for these lawsuits. Did the Trump administration also use

the social cost of carbon? Yes, it did. It lowered it down to one dollar, which is ridiculous. And the Europeans, for example, they use figures up in the eighty range. And you know, these figures do change over time because as the extreme events begin creating even more damaging storms like we've seen. Last year was the most damaging hurricane season on the Gulf Coast ever in the history of the United States, and the wildfires in California the same thing,

the most destructive wildfires we've ever seen. So the cost of climate change are increasing, and therefore that calculation that's being done will also increase. But the point is that there's another executive order that the conservatives love, and that's the order that requires cost benefit analysis for all of these rules. And so if you're going to require cost benefit analysis for environmental regulations, then you've got to do

it right. And every economist would tell you that carbon pollution has a cost, as does all other kinds of pollution, and that you have to figure out a way to quantify that cost and included in your analysis. Otherwise your analysis is no good. It's not accurate, it doesn't follow good sound economic analysis. So you need some kind of a model to develop that you can quantify these costs from carbon pollution. And that's what the Biden administration is doing.

I'm struggling to understand what the lawsuit is objecting to if the social cost of carbon was used by Trump and the Biden administration has just changed the numbers, But I have read the actual details of the complaints. They are probably arguing that the number is arbitrary, that there wasn't an opportunity yet for any kind of public input or vetting of the new analysis. And you know, those are the kinds of arguments that at the right time,

in the right case, could be raised. And you know, the Biden administration will have to defend the number that they've come up with. I don't think they're going to have much trouble defending it, but but they will have to defend it. They will have to say, well, this is what we included in the model as the assumptions for what kinds of damages we're trying to calculate. Here, we're looking at the past extreme weather events, and we do have actual numbers and calculations for those, and we

put those into the model. And then we put the science of what's happening with climate change into the model. How much sea level rise are we actually seeing and the answer is we're seeing a lot more than the models were originally projecting. And how much flooding are we seeing in Miami, well just about every day and so forth. So Biden administration will have to have a record that

demonstrates that the number they chose is reasonable. You know, the courts aren't going to dictate what the number should be, but they're going to demand that the administration justified the number that it picks. There's also a constitutional claim based on separation of powers. Yeah, this is what's called the non delegation doctrine. And this is a real reach because usually that's a claim against the statutes, the Congress and acts.

And the most famous case, uh and the opinion by the late Justice Scalia none other is the American Trucking Association case, in which Scalia wrote an opinion for unanimous Supreme Court upholding e p AS authority to set air quality standards based only on public health, regardless of costs. And the question was, when Congress delegates to e p A that kind of, you know, incredibly powerful sweeping authority, is that actually giving e p A too much authority?

That's what the non delegation doctrine is all about, where Congress is abdicating its responsibility to set more defined policy guidance for the agency. But as I say, the Court voted unanimously in American Trucking and saying the delegation of authority the e p A to quote protect the public

health and welfare. That language was enough to authorize e PA to say, we are going to base air quality standards on public health data and you know, the advice of the medical profession and so forth in setting these numbers, and we're not going to take into account how much

is it gonna cost to protect the public health. So the idea that now, uh, these states that have challenged Biden's executive order, that's not even legislation, that's just Biden telling his agencies this is the way in which I would I want you to calculate these costs. So it isn't even a delegation of authority from Congress. It's Biden saying, this is how I want my administration to conduct the

proper economic analysis of the rules that were adopting. So I don't think this non delegation doctrine has any legs at all In challenge Biden's order. Former President Trump was the king of executive orders. How did challenges against his orders his executive orders fair and court? Well, the one that did break through was the travel band, But that one actually had immediate impacts on people. If you remember, people were stuck in airports all over the world, some

even even in some cases Americans. They may have been of multiple you know, multi ethnic origin, but they were American citizens couldn't even get back to the country. So in those cases, the courts are saying, we're an executive order like that has immediate impact injury. The individuals who can come to court and swear under oath of course that they are being impacted by this order. That's a

different case altogether. But in the other kinds of executive orders, where there wasn't that kind of immediate injury or impact from the order, the courts would routinely reject challenges to those kinds of orders. The government's defense, the go to defense, is the boiler plate language in the executive order at the bottom. Yeah, these modern executive orders all included provision saying there are no rights or responsibilities created by this order.

It is not enforceable in court. And the courts by and large have accepted that and basically said that's right. These orders. The courts view them as housekeeping orders. You know, as the president of the executive branch, these are instructions to his cabinet officers for how he wants his administration to conduct business. And you'll notice in this executive order, and in other orders, there's always a line that says this,

the direction is always consistent with statutory authority. In other words, executive orders can't amend legislation and they can't contradict, you know, the direction from Congress. But because Congress always gives agencies an awful lot of discretion, and these statutes contain very broad, general and and oftentimes ambiguous language, there's a lot of interpretation that has to happen. And these executive orders are directions to the agencies as to how they should exercise

their discretion consistent with the statutory authority. So the orders themselves aren't making new law, they aren't creating new rules. They're telling the agencies these are the kinds of policies, of course I want you to consider and incorporate. And also in the case of social cost of carbon, this is the procedure, this is the process that I want

you to follow. And this social cost of carbon model that they used was developed by seventeen agencies, So it's a it's a large inter agency working group comprised of economists and technical people, so it isn't even just the White House dictating this particular number it's the White House saying this agency inter agency working group should be re established trumpet abolished, it should be re established, and it should be the one to go to to look for

guidance on how to do this. Since everyone seems to agree that this is not this lawsuit is not going to survive, is it then a publicity stunt? Sort of? Yeah, I would call it a publicity stunt. It's not all of the states that we're attacking the Obama administration's environmental rules and climate rules, but it's a lot of the

same states. They're all Republicans controlled state attorneys general that are suing, and I mean, I guess they just want some some publicity and some attention, and and it's a warning shot, you know as well. I mean, they probably realized in their heart of hearts that this case isn't going to survive. But it's a warning shot to the Adviten administration of what's going to be coming. So that's fine.

That seems to be the era we're in where it's partisan warfare, you know, not conducting the public's business necessarily in a very rational way. But it is what it is. That's the kind of world we're living. In I was very surprised because Texas was the first state to sue the Body administration. Tex has led so many of the lawsuits against the Obama administration, and Texas is nowhere to

be found in this lawsuit. Yeah, neither is West Virginia, which surprised a lot of people because Patrick Morrissey, the Attorney General of West Virginia, led the charge. He and Scott Threwitt, of course from Oklahoma, led the charge against the Obama rules and they didn't join. And that might that might actually reflect that they looked at this case and said, this is not a good case. We don't need to be jumping the gun here. We're gonna have

plenty of opportunities to sue Biden. Let's pick our target for cases that have a better chance. Turning to another environmental issue, I think most environmentalists breathed a sigh of relief when Joe Biden became president because of his environmental concerns. But now the Biden administration is throwing its legal weight behind the Penny's pipeline in a high stake Supreme Court case that could affect natural gas projects across the US.

The Justice Department is urging the High Court to overturn a ruling that had blocked Pennies from using federal eminent domain authority to take New Jersey land along the one billion dollar project's route. So this came as a surprise to a lot of people, especially because one of Biden's first moves was to stop the Keystone Excel pipeline. So why do you think the administration is backing the Pennies pipeline at the Supreme Court. Oh yeah, that's an interesting one,

isn't it. So you know, eminent domain authority can be used for good or bad. I guess from from an environmental standpoint, I think one of the concerns the administration has is what if we wanted to approve a solar array, or a wind farm or an offshore wind project, you know the states we're trying to oppose that that Maybe some of the concern here is that they want the authority to be able to install the infrastructure for the

clean energy economy they want to build. If that's the case, if that's the thinking behind biden administration support for condemning State Land to build an interstate pipeline, what I would say is a better approach would be to you know, get you'd have to get legislation to do this, but they have a statute that authorizes the use of eminent

domain but put limits on it. And frankly, you could make an argument now, and of course, consistent with the Biden administration's statements that we're in a climate crisis, you could make an argument that eminent domain should not be used to construct further fossil fuel infrastructure because we can't

use it all. The science is telling us you're not going to be able to be using interstate gas pipelines for the next thirty or forty or fifty years, which is what they require to repay the tremendous capital costs to build them. These are multibillion dollar projects we're talking about.

You don't build those things and then operate them, you know, for five or ten years, And the science is telling us that's all we've got basically to get serious about decarbonizing the energy sector, the transportation sector, and other sectors. So you could deploy eminent domain more strategically to advantage clean energy and not dirty energy, but that's not what we have right now. The Natural Gas Act doesn't distinguish, of course, between you know, good projects and bad projects.

It authorizes eminent domain for all gas pipeline projects. So the Biden administration is sticking with the current status of the law of eminent domain because I think it wants to use it. For example, that they've got a big push to electrify the transportation system, you know, to build

the kind of clean energy system we need. For example, for electric vehicles, you need a lot of charging stations all over the country deployed in the strategic locations so that people can quickly recharge their cars wherever they are. And that's a massive, almost like interstate highway system requirement. The same thing with with the grid, the electricity grids. We saw what happened in Texas. Obviously lots of reasons for that, but the lesson is that our grid system

is too vulnerable to extreme weather. It needs to be weather rized. We need more micro grids, more distributed energy, so we're not reliant on you know, single grid systems that can go down in extreme weather events, whether they be heat or rain or storms or whatever whatever the

extreme weather is. And again, you know that's going to mean having to build new structures infrastructure for this clean energy economy and it's going to mean having to overcome opposition, you know, not in my backyard, opposition, opposition from states. You might have to actually condemn state owned land in

order to build some of these energy systems. So that's what's in the background here with eminent domain, as they say, it can be used to promote clean energy or to promote fossil fuel energy, and the question is how are we going to decide which forms of energy we really want to prioritize. What is the Biden administration doing as

far as endangered species? For endangered species, they're setting about reversing Trump's rules, which revise all of the protections for endangered species, including things like not protecting species that are threatened from what it's called take, which is any kind of form of harm, killing, or injuring. There's a rulemaking underway to reverse the Trump rules and replace them with

more protective rules for endangered species. And the Biden administration has also revoked the rule that the Trump administration adopted under the Migratory Bird Treaty Act, which basically said unless you can prove that someone intentionally is killing birds, there's

no violation of that Act. And the problem with that is a lot of the death to migratory birds occur from things like boil pits in the oil and gas industry around the country, and these birds are attracted, of course to what looks like water, but it's toxic to them, and believe it or not, there are millions of birds killed every year from contact with with that kind of industrial operation. So restoring protection for migratory birds is important because that will prevent a lot of these birds from

becoming endangered. And that's the real strategy with wildlife conservation obviously, is to protect the species that are still viable and relatively healthy so that they don't become endangered. Thanks Pat, that's Professor Pat Parento off the Vermont Law School. I'm June Gralso and you're listening to Bloomberg.