Abuse Tracker: July 2. Archives. UNITED STATESThe New York Times. Linda Greenhouse. JULY 2. 3, 2. 01. The court of Chief Justice John G. Nearly every religious claim presented to the court has emerged a winner, from explicitly sectarian prayer at town board meetings, in last year’s closely divided Town of Greece decision, to beards for Muslim inmates in a prison system that banned facial hair — a unanimous decision that defied the court’s tradition of deference to prison officials and their rules. Most famous, of course, was last year’s Hobby Lobby decision, exempting a for- profit company from having to cover contraception in its employee health plan, as otherwise required under the Affordable Care Act, because of the owners’ religious scruples about birth control. At issue are the options the Obama administration has made available to a category of employers deemed “religious nonprofit organizations” that object to including birth control in their employee health plans. These groups differ from “religious employers,” a category essentially limited to churches, which are deemed exempt under the Affordable Care Act regulations. Rather, these are religiously affiliated nonprofits such as colleges, seminaries and religious orders like the Little Sisters of the Poor, which runs nursing homes and describes itself as an equal- opportunity employer in its hiring practices for lay staff members. These nonprofits do have to provide contraception coverage unless they accept the administration’s offer to opt out of the requirement by passing the legal obligation on to their insurance carriers. Now the post- Hobby Lobby cases have, inevitably, arrived at the Supreme Court’s door. Three appeals have been filed so far, and the justices will decide shortly after the new term begins in October whether to accept any of them. At that point, the spotlight will return to the court, along with the heated rhetoric about the Obama administration’s supposed “war on religion.” Not only is there no such “war,” but the administration has bent over backward to accommodate religious claims that are by any measure extreme. The problem is that the religious groups pressing these claims refuse to take yes for an answer. The question is whether their arguments go too far, even for the Roberts court. ![]() ![]() ![]() These two rules do a lot to enrich the Pokémon experience. The first rule forces you to adapt to monsters you might otherwise never use. The second raises the stakes.Under pre- existing regulations that the Obama administration fine- tuned in the aftermath of the Hobby Lobby decision, all these organizations have to do to qualify for the exemption is to ask for it, by filling out a two- page form, or even more simply by sending a letter to the Department of Health and Human Services declaring that they have a religious objection to paying for birth control. At that point, their obligation ceases and the coverage has to be provided by the organizations’ insurance carrier or, in the case of a self- insured plan, by the third- party administrator, without any financial involvement by the organization. ![]()
Dozens of these organizations promptly filed suit claiming that they couldn’t possibly fill out the form or sign the letter because to do so would make them complicit in the ultimate choice their employees might make to use birth control. It’s important to understand the difference between these cases and the lawsuit by Hobby Lobby’s owners. As a for- profit company, Hobby Lobby had no accommodation available. It had either to provide the coverage or pay a huge fine. In fact, the court’s majority opinion, written by Justice Samuel A. Who are the six players Warren Gatland could turn to as he looks to bolster his Lions squad in the coming days? It is expected the Lions boss will summon half-a-dozen. Start Preamble Start Printed Page 54960 AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration (FDA or we) is. Alito Jr., strongly suggested that the problem, as the majority saw, it could be solved if only the administration would offer Hobby Lobby the same choice it was giving the religious nonprofits. Justice Alito wrote that the Department of Health and Human Services “itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.” In a footnote, he added: “The less restrictive approach we describe accommodates the religious beliefs asserted in these cases.” Justice Anthony M. Kennedy, who provided the fifth vote to the majority, wrote in a concurring opinion that the accommodation as described “does not impinge on the plaintiffs’ religious beliefs.”The Hobby Lobby case had not been argued on this basis, and Justice Alito noted that the court was not deciding whether such an accommodation would suffice “for purposes of all religious claims.” To that extent, the statements were nonbinding “dicta,” not part of the holding. But they have had a powerful influence in the lower courts. Cases challenging the adequacy of the accommodation as applied to religious nonprofits have now made their way through six of the 1. Remarkably, every court has rejected the religious claims. Not all the decisions have been unanimous; there have been dissenting opinions by individual judges, a fact that may lead the Supreme Court to accept one or more of the pending appeals despite the absence of the “conflict in the circuits” that the court usually waits for. But, notably, judges across the ideological spectrum have ruled for the government. One of the country’s most conservative federal judges, Jerry E. Smith, wrote the opinion last month for a unanimous panel of one of the country’s most conservative courts, the United States Court of Appeals for the Fifth Circuit. The Supreme Court’s Hobby Lobby decision “is of no help to the plaintiffs’ position,” Judge Smith wrote in East Texas Baptist University v. Burwell. The reason, he explained, was “not just that there are more links in the causal chain here than in Hobby Lobby.” Rather, it was that “what the regulations require of the plaintiffs here has nothing to do with providing contraceptives.”It’s worth quoting Judge Smith at some length, including his reference to the Religious Freedom Restoration Act, the federal law under which the Hobby Lobby case and the current cases were brought: “The plaintiffs urge that the accommodation uses their plans as vehicles for payments for contraceptives. But that is just what the regulations prohibit. Once the plaintiffs apply for the accommodation, the insurers may not include contraceptive coverage in the plans. The insurers and third- party administrators may not impose any direct or indirect costs for contraceptives on the plaintiffs; they may not send materials about contraceptives together with plan materials; in fact, they must send plan participants a notice explaining that the plaintiffs do not administer or fund contraceptives. The payments for contraceptives are completely independent of the plans. The acts that violate their faith are the acts of the government, insurers, and third- party administrators, but R. F. R. A. It is not only that female employees, and not their bosses, make the choice to use birth control. It is that the employers’ religious objections, if honored, would cause these third parties actual harm — harm that would be avoided if the employers simply signed the form or sent the letter. The extreme to which the plaintiffs’ refusal takes their “complicity” argument is what the appeals courts have found so alarming. The organizations don’t want to pay for birth control and they don’t want anyone else to pay for it either. The United States Court of Appeals for the 1. Circuit had this to say in a decision last week, Little Sisters of the Poor v. Burwell: “Plaintiffs sincerely oppose contraception, but their religious objection cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which they are entitled.”Writing in The National Catholic Reporter last week, Michael Sean Winters, author of a blog on the publication’s website called Distinctly Catholic, praised the 1. Circuit decision, saying: “If you think the form used to object to participation is itself a form of participation, I am not sure how we, as a nation, can ever carve out religious exemptions.”Evidently, the religious groups pressing this litigation would rather keep fighting than declare victory. Mark Rienzi, senior counsel of the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor and is involved in many of the other cases, responded to the 1. Circuit’s decision by accusing the Obama administration of an “unrelenting pursuit of the Little Sisters of the Poor” and of seeking to “crush the Little Sisters’ faith.”Hyperbole in defense of a legal position is no crime, certainly. But the vigor with which the complicity claim is being pressed does raise the question: What’s going on? In an illuminating article last month in The American Prospect titled “Conscience and the Culture Wars,” two constitutional scholars, Reva B. Siegel of Yale and Douglas Ne. Jaime of U. C. L. A., observe that “the new conservative campaign for religious exemptions follows a well- established pattern” in which advocates whose core positions have lost legitimacy in the public mind “look for new ways to frame their views, often borrowing from their opponents.”The Religious Freedom Restoration Act was passed in 1. Congress and signed into law by President Bill Clinton; it was not proposed or seen as an agent of the culture wars. But it has become one, Professors Siegel and Ne. Jaime argue: “After failing to prohibit abortion and same- sex marriage, conservatives have sought to create religious exemptions from laws that protect the right to abortion or same- sex marriage.” They explain: “If unable to protect traditional sexual morality through laws of general application, conservatives can protect traditional values through liberal frames — by asserting claims to religious exemption and by appealing to secular commitments to pluralism and nondiscrimination.” Reva Siegel has elsewhere described this strategy as “preservation through transformation.”Will the Roberts court buy it? Or, I suppose, the question might be framed more precisely: Will Justice Kennedy? I don’t see it. The implications are too enormous. Regional transmission organization (North America)A regional transmission organization (RTO) in the United States is an electric powertransmission system operator (TSO) which coordinates, controls and monitors a multi- state electric grid. The transfer of electricity between states is considered interstate commerce and electric grids spanning multiple states are therefore regulated by the Federal Energy Regulatory Commission (FERC). December 2. 0, 1. In the areas where an ISO is established, it coordinates, controls and monitors the operation of the electrical power system, usually within a single US State, but sometimes encompassing multiple states. RTOs typically perform the same functions as ISOs, but cover a larger geographic area. The two are similar, with an RTO being more clearly defined and born out of the concept of electrical grid reliability. The delineation between an ISO and an RTO is subtle to some and quite specific to others as the similarities in the table below illustrate: Various definitions from web- based glossaries. ISORTO. Today's RTOs do the same thing with an added component of greater responsibility for the transmission network as established by the FERC. Background. 8. 88/8. Commission suggested the concept of an Independent System Operator as one way for existing tight power pools to satisfy the requirement of providing non- discriminatory access to transmission. Subsequently, in Order No. Commission encouraged the voluntary formation of Regional Transmission Organizations to administer the transmission grid on a regional basis throughout North America (including Canada). Regional Transmission Organization. Prior to these rulings, generated power and the subsequent energy provided to customers by local service providers was owned and controlled by single entities who often owned the entire generation, transmission, and distribution assets. Because these companies controlled the retail delivery of the energy from generation through their own power lines, consumers had little to no choice regarding whose electricity they were buying. In economic terms, this structure constituted an impediment for new providers who would want to generate power, move energy, or provide retail electricity to individual consumers. Order No. 8. 88 is often cited as the . In actuality, the electricity industry is still regulated (depending on the region) by a series of federal, state, and local agencies and various public commissions. Relative to this article, however, it defined two key elements: An acknowledgment that barriers to competitive wholesale markets may exist and that those barriers must be removed. Permit utilities to recover stranded costs associated with providing open access to transmission. A second critical aspect of the rules is to address recovery of the transition costs of moving from a monopoly- regulated regime to one in which all sellers can compete on a fair basis and in which electricity is more competitively priced. ISO to “. Rather, in an attempt to comply with the FERC’s order, groups of participants (or “Power Pools” composed of generators, transmission providers and utilities) partnered, and proposed to the FERC, for the right to establish designs of independent system operations. Through negotiation, collaboration and legal challenges, the first ISOs to emerge included California ISO, PJM Interconnection, New York ISO and New England ISO. In order to facilitate competitive wholesale markets, Order No. In other words, it requires non- discriminatory (comparable) treatment for all eligible users of the monopolists' transmission facilities. The non- discriminatory services required by Order No. Rule. The Rule also requires functional separation of the utilities' transmission and power marketing functions (also referred to as functional unbundling) and the adoption of an electric transmission system information network. The FERC continues to receive rehearing petitions regarding stranded cost recovery as it has clearly placed the importance on remedying what it terms as “undue discrimination” at the forefront. Requests for rehearing and/or clarification were filed by 1. The majority agreed with the FERC’s assertion for the need to harness the benefits of competitive electricity markets. Open Access Same- time Information System (OASIS) (formerly real- time information networks) and prescribed standards of conduct for its use and access. Subsequent orders provided clarifications, standards and protocols. This final rule requires (1) each public utility subject to the rule to implement standards of conduct to functionally separate transmission and wholesale power merchant functions and (2) the creation of a basic OASIS system. ISO) to facilitate open access, it was not written with the intent to establish one. FERC Order No. The regulations require that each public utility that owns, operates, or controls facilities for the transmission of electric energy in interstate commerce make certain filings with respect to forming and participating in an RTO. The Commission also codifies minimum characteristics and functions that a transmission entity must satisfy in order to be considered an RTO. RTO including its minimum characteristics, functions and ratemaking policy. The order also stated its commitment toward open architecture with a stated goal that an RTO . Likewise, the Commission did not propose a . In the areas where an ISO is established, it coordinates, controls and monitors the operation of the electrical power system, usually within a single US State, but sometimes encompassing multiple states. It appears that the principal motivation for creating ISOs in these situations was the Order No. In contrast, the establishment of the California ISO and the ERCOT ISO was the direct result of mandates by state governments. The Midwest ISO, which is not yet operational, is unique. It was neither required by government nor based on an existing institution. Two states in the region subsequently required utilities in their states to participate in either a Commission- approved ISO (Illinois and Wisconsin), or sell their transmission assets to an independent transmission company that would operate under a regional ISO (Wisconsin). Not all utilities are members of ISOs. All utilities and ISOs, however, are responsible to meet the compliance of a larger organization called the North American Electric Reliability Corporation (NERC) which overlays the entire FERC footprint and also includes a Mexican utility and several Canadian utilities. As such, international reciprocity is commonplace, and rules or recommendations introduced by FERC often are voluntarily accepted by NERC members outside of FERC’s jurisdiction. Therefore, one Canadian Province is a member of a US- based RTO, while two others function as an Electric System Operator (ESO), an organization essentially equal to a US- based ISO. Within the United States one ISO, and its participating utilities, does not fall under FERC authority: The Electric Reliability Council of Texas (ERCOT). ERCOT does fall under the authority of NERC and operates a reliability function, separate from its market function, in order to comply with NERC requirements. ISOs act as a marketplace operator in wholesale power, resulting from FERC order No. Most are set up as nonprofitcorporations using governance models approved by FERC and/or regional or local commissions. There are regions of the United States where ISOs do not exist and, subsequently, the utilities do not engage in wholesale power markets. The Pacific Northwest, and states east of California and west of the Dakotas, Nebraska, Kansas and Texas largely do not participate. The majority of Southeastern states also do not participate in wholesale markets. While these regions must conform to open access as mandated by FERC, the power exchanges between utilities is mostly facilitated through bilateral contracts and power purchase agreements. Current ISOs. In the areas where an RTO is established, it coordinates, controls and monitors the operation of the electrical power system, usually within a single US State, but sometimes encompassing multiple states. The official definition for an RTO: . In addition, an organization wanting to achieve RTO status must petition the FERC for approval and meet 4 minimum characteristics and 8 minimum functions. OASIS and Total Transmission Capability (TTC) and Available Transmission Capability (ATC) – an RTO must be the single OASIS site administrator for all transmission facilities under its control and independently calculate TTC and ATC. Market monitoring – an RTO must monitor market behavior and report market power abuses and market design flaws to FERC. Planning and expansion – an RTO must have ultimate responsibility for both transmission planning and expansion within its region that will enable it to provide efficient, reliable and non- discriminatory service. Interregional coordination – an RTO must coordinate its activities with other regions. Only electric utilities that are located within the United States fall under FERC authority, but a larger organization called the North American Electric Reliability Corporation (NERC) overlays the entire FERC footprint and also includes a Mexican utility and several Canadian utilities. As such, international reciprocity is commonplace, and rules or recommendations introduced by FERC often are voluntarily accepted by NERC members outside of FERC’s jurisdiction. Therefore, one Canadian Province is a member of a U. S.- based RTO, while two others function as an Electric System Operator (ESO), an organization essentially equal to a U. S.- based ISO. Some ISOs and RTOs also act as a marketplace in wholesale power, especially since the electricity marketderegulation of the late 1. Most are set up as nonprofitcorporations using governance models developed by FERC. FERC Orders 8. 88 and 8.
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