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In Burwell v. Hobby Lobby, the Supreme Court required the government to provide objecting employers with accommodations when their religious beliefs conflict with requirements of the Affordable Care Act. Following the Supreme Court’s decision in Hobby Lobby a number of circuits have held that the government accommodation for non-profit, religious organizations does not substantially burden the non-profits’ religious beliefs. The accommodation allowed for non-profits to give “notice” to the government that they would not be providing contraceptive coverage in their health insurance plans. Once the government received notice, it would provide contraceptives to the objecting non-profit’s employees.
The Eighth Circuit chose to split from the other circuits in Sharpe Holdings v. US Department of Health and Human Service. It determined that it was not necessary for the court to decide if the accommodations actually made the plaintiffs complicit. Because the plaintiffs believed that it made them complicit, the court only had to determine if the penalties in question substantially burdened their sincere beliefs. Since the Supreme Court did not evaluate the reasonableness of Hobby Lobby’s beliefs, Sharpe Holdings is the case that most accurately reflects the Hobby Lobby standard.
The plaintiffs in Sharpe Holdings were non-profit religious organizations that offered employees health care coverage through a self-insured program. The plaintiffs’ religious beliefs prohibited them from directly or indirectly providing abortifacient devices. The government’s religious contraceptive accommodation required the plaintiffs to either fill out a Form 700 and send it to their third party administrator (TPA) as notice of the organization’s religious objections or self-certify by sending notice of their religious objections to Health and Human Services (HHS), which would then notify the TPA. Once the TPA is aware of the non-profit’s objections, it would be responsible for providing contraceptive coverage to the non-profit’s employees.
In Sharpe Holdings, the plaintiffs argued that by providing this notice either through the Form 700 or through HHS the plaintiffs were triggering the provision of abortifacient methods. They believe that their actions made them complicit in the act. If they chose not to provide notice, they would have to potentially pay a penalty of $2,000 per year per employee. In contrast, the government maintained that the TPAs have an independent legal obligation to provide contraceptive methods and even if the plaintiff’s beliefs were substantially burdened, it is the least restrictive means of effectuating the government’s compelling interest in providing contraceptives to all women.
In holding that closely held, for-profit corporations’ beliefs were substantially burdened by the Affordable Care Act’s contraceptive mandate, the Supreme Court declined to evaluate whether the Hobby Lobby plaintiffs’ beliefs were reasonable or not. The Court stated that “the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.” The Eighth Circuit was the first circuit to choose to refrain from evaluating whether the non-profit’s religious convictions were reasonable. The Tenth Circuit determined that, while the Little Sisters of the Poor’s beliefs were sincerely held, the accommodation did not actually cause or trigger the contraceptive coverage, which meant that the plaintiffs were not actually complicit in the matter.
However, the Supreme Court explicitly rejected this approach. In Hobby Lobby, the Court discussed Thomas v. Review Bd. Of Indiana, in which a metalworker asserted a religious objection when his employer changed his job. Instead of making the metal for the guns, he was required to make the weapons themselves. Even though the state court had difficulty determining whether his religious objection was reasonable, the Supreme Court held that, under the standard established by the Religious Freedom Restoration Act (RFRA), it was not the Courts’ place to determine this. Similarly, in Little Sisters of the Poor the court also had trouble evaluating whether the line the plaintiffs drew was reasonable. The plaintiffs believed that by notifying the HHS or their TPA of their objections, they were shifting their legal responsibility from themselves to someone else, which would make them complicit in the provision of contraceptives. Regardless of whether the notice actually triggers contraceptive coverage, the plaintiffs are still involved in the contraceptive distribution process (which they believe is morally objectionable) and the only way to remove the burden would be to remove the requirement of any action. According to the Supreme Court, a court’s only function is to determine whether the religious belief is a sincere one.
The RFRA was passed to ensure broader protections for religious liberty after the Supreme Court, in Employment Div., Dept. of Human Resources of Ore. v. Smith, determined that a lesser standard was all that the Constitution required. In keeping with this reasoning, it would be risky for the courts to evaluate religious beliefs and decide whether they are reasonable, logical, or correct. Although there may be some debate about whether courts are evaluating a belief verses the application or effect of a law on that belief, the end result is the same. If a court is deciding whether a law actually does what the religious objector says it does, it is still evaluating whether the religious objector’s belief is correct.
Even though a court may think that a religious belief is not affected by the law in question, the religious objector may still feel that the law substantially burdens their faith. For instance, in Little Sisters of the Poor, the plaintiffs felt complicit in an immoral activity when they gave notice to a third party. However, the court determined that the non-profit’s actions caused or triggered nothing because the beneficiaries of the non-profit’s plan were already entitled to the benefit. If courts were responsible for evaluating whether the religious objectors beliefs were reasonable, the court would effectively be telling persons that what they thought was a violation of their moral code was wrong or illogical. The courts would be basically deciding which religious beliefs have merit under the guise of deciding whether they legally make sense. This would possibly force religious objectors to decide between their faith and paying steep penalties.
This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable).
The Court rebuked the government for trying to evaluate the religious beliefs of Hobby Lobby. Instead, it focused on whether the law imposed a substantial burden on the companies’ ability to do business without violating their religious beliefs. It ultimately decided that the penalty constituted a substantial burden on Hobby Lobby’s religious beliefs because the plaintiffs had to either pay the penalty or violate their religious beliefs. The Court concluded that “[b]ecause the contraceptive mandate forces them to pay an enormous sum of money…if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.” This supports the notion that courts must ask whether this religious belief is sincerely held and, if so, whether this law forces the plaintiff to choose between violating that belief and facing an enormous penalty. If the answers to those questions are affirmative, then the law does substantially burden the religious beliefs of the plaintiff.
In Hobby Lobby, the Supreme Court set a precedent against courts evaluating the religious beliefs of persons. Allowing courts to determine whether religious beliefs are “reasonable” gives courts too much power. Under RFRA and the Hobby Lobby precedent, the only question courts may ask is if religious beliefs are sincerely held and if the penalty imposed on religious objectors is severe enough to be a substantial burden. The Supreme Court has determined the religious protection standard required from the Constitution, but Congress felt the need to raise that standard to protect religious liberty. Ultimately, the holding of the Eighth Circuit in Sharpe Holdings is the most accurate interpretation of the Supreme Court’s substantial burden standard set forth in Hobby Lobby.
 Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014).
 Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1176 (10th Cir. 2015).
 Sharpe Holdings, Inc. v. U.S. Dept. of Health and Human Services, 2015 BL 30098, *11-13 (8th Cir. Sept. 17, 2015).
 Little Sisters, 794 F.3d at 1187.
 Burwell v. Hobby Lobby, 134 S.Ct. 2751, 2779 (2014).
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For any company desiring to construct a natural gas pipeline, all roads lead to FERC. Millennium Pipeline Company, L.L.C. v. Seggos, 860 F.3d 696, 698 (D.C. Cir. 2017).
In a significant and already controversial decision issued in mid-September, the Federal Energy Regulatory Commission (FERC) granted approval for Millennium Pipeline Company L.L.C. (Millennium) to proceed with a pipeline extension project despite the prior denial of the companys application for a Clean Water Act (CWA) §401 water-quality certification by the New York Department of Environmental Conservation (NYDEC). See Millennium Pipeline Company, L.L.C., 160 FERC ¶ 61,065 (September 15, 2017).
As noted in prior articles of August 11, 2016 and September 7, 2017, the Natural Gas Act of 1938 (NGA) vests FERC with exclusive jurisdiction to regulate sales and transportation of natural gas in interstate commerce, including the construction and operation of pipelines. Prior to commencing construction, the NGA requires that the pipeline company obtain from FERC a certificate of public convenience and necessity. Armed with a certificate of public convenience and necessity, the pipeline company may exercise the right of eminent domain to gain property access and construct pipelines. Moreover, even though pipeline construction and operation must comply with environmental laws, the NGA restricts the rights of third parties to use state administrative remedies to challenge pipeline development.
For example, the NGA was amended in 2005 to grant exclusive jurisdiction to the Federal circuit courts of appeal for judicial review of determinations made by state agencies acting pursuant to Federal law on approvals required under Federal law with respect to applicable gas infrastructure. See 15 U.S.C. § 717r (d)(1). Challenges to FERC certificates must be filed either in the D.C. Circuit or in the circuit where the natural gas company is located or does business, where FERC is afforded deference in this decision making process. See 15 U.S.C. § 717r (b).
On November 13, 2015, Millennium applied to FERC for a certificate of public convenience and necessity requesting authorization to construct a 7.8 mile pipeline spur to provide services to the Valley Energy Center in Wawayanda, New York. On November 9, 2016, FERC issued a provisional certificate of public convenience and necessity for the proposed project. FERC, however, conditioned its approval on proof of Millenniums receipt of all authorizations required under federal law, including the CWA. Because Millenniums proposed pipeline would traverse several streams in New York, the CWA required that New Yorks NYDEC certify that any impacts from the pipeline will comply with the state-issued water quality standards. See 33 U.S.C. § 1341(a)(1).
In December 2016, more than a year after applying to the NYDEC for CWA § 401 certification, Millennium petitioned the D.C. Circuit under § 19(d)(2) of the NGA alleging that NYDEC had unlawfully delayed action on the water quality certification and waived its authority under CWA § 401. The D.C. Circuit dismissed Millenniums petition on jurisdictional grounds, finding that Millennium had not been damaged in light of its other remedies. Millennium, 860 F.3d 696, 698 (D.C. Cir. 2017).
On July 21, 2017, Millennium requested permission from FERC to proceed with construction of the Valley Lateral Project pursuant to the previously-issued provisional certificate of necessity. In its request, Millennium asserted that NYDEC had waived its authority to issue a CWA § 401 certification by failing to act within one year of November 23, 2015, the date of Millenniums application. NYDEC disagreed, contending that the time to act on the application had not been waived since the time did not start to run until NYDEC received a complete application, which it contended was August 31, 2016.
On August 30, 2017, NYDEC denied Millenniums CWA § 401 water certification application. In support of its denial, NYDEC found that FERCs review of the 7.8 mile pipeline spur failed to consider the indirect effects of downstream emissions that would come from the power plant if the connecting pipeline was approved.
Subsequently, on September 15, 2017, FERC rejected NYDECs denial of the CWA § 401 water quality certification for Millenniums pipeline project, finding that the NYDEC had waived its authority to act on the application by failing to do so within the one-year statutory deadline. Citing the plain meaning of the statute, FERC found that state agency had waived its right to review Millenniums application for a water quality certification under CWA § 401. See Millennium Pipeline Company, L.L.C., 160 FERC ¶ 61,065, at 5 (September 15, 2017).
fails or refuses to act on a request for certification within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of [Section 401] shall be waived with respect to such Federal application. See Millennium Pipeline Company, L.L.C., 160 FERC ¶ 61,065, at 2 (September 15, 2017) citing 33 U.S.C. 1341(a)(1) (emphasis in original). FERC concluded that receipt was the triggering event and, after consulting the dictionary definition, concluded that the plain meaning of after receipt of the request is the day the agency received a certification application, as opposed to when the agency considers the application to be complete. See Millennium Pipeline Company, L.L.C., 160 FERC ¶ 61,065, at 5 (September 15, 2017).
will not frustrate the federal application. See Millennium Pipeline Company, L.L.C., 160 FERC ¶ 61,065, at 6 (September 15, 2017). Similarly, in Georgia Strait Crossing Pipeline LP, 107 FERC ¶61, 065 (2004), FERC found that the Washington Department of Ecology had waived its CWA § 401 authority after it declined the pipelines certification request more than two years after receipt. See also AES Sparrows Point LNG, LLC 126 FERC ¶ 61,019 (2009) (Order Issuing Certificate).
FERC found further support in its hydropower regulations and case law, as well as D.C. Circuit precedent. As explained by the D.C. Circuit, [i]n imposing a one-year time limit on States to act, Congress plainly intended to limit the amount of time that a State could delay a federal licensing proceeding without making a decision on the certification request. This is clear from the plain text. See Millennium Pipeline Company, L.L.C., 160 FERC ¶ 61,065, at 5 (September 15, 2017) citing Alcoa Power Generating Inc. v. FERC, 643 F.3d 963, 972 (D.C. Cir. 2011). In the final analysis, FERC concluded that, consistent with its precedent in both NGA cases and hydroelectric licensing proceedings under the Federal Power Act, the triggering date for waiver under § 401 of the CWA is the date the certifying agency receives the application.
if the [NYDEC] has delayed for more than a yearas Millennium allegesthe delay cannot injure Millennium. Instead, the delay triggers the Acts waiver provision, and Millennium then can present evidence of waiver directly to FERC to obtain the agencys go-ahead to begin construction.