USCA Case #20-1025 Document #1855212 Filed: 08/05/202 | Original pdf, here.

[ORAL ARGUMENT NOT YET SCHEDULED] No. 20-1025 [Consolidated with 20-1138]

---

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

---

ENVIRONMENTAL HEALTH TRUST, et al., Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES of AMERICA,Respondents,

---

PETITION FOR REVIEW OF FINAL ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION

---

AMICUS BRIEF OF
NATURAL RESOURCES DEFENSE COUNCIL
AND LOCAL ELECTED OFFICIALS
IN SUPPORT OF PETITIONERS

---

Sharon Buccino
Natural Resources Defense Council
1152 15th Street, NW, Suite 300
202-289-6868
sbuccino@nrdc.org

Counsel for Amici Curiae,
Natural Resources Defense Council et al.

---

RULE 26.1 DISCLOSURE STATEMENT

Pursuant to the United States Court of Appeals for the District of Columbia Rule 26.1 and Federal Rule of Appellate Procedure 26.1, Natural Resources Defense Council respectfully states that it is a non-profit corporation with no parent companies, subsidiaries or affiliates and has not issued shares to the public. No other amici curiae are corporations.

/s/ Sharon Buccino

Counsel for Amici Curiae, Natural Resources Defense Council et al.

Dated: August 5, 2020

---

CERTIFICATE AS TO PARTIES, RULINGS, RELATED CASES, AND FILING OF SEPARATE BRIEF

As required by Circuit Rules 28(a)(1) and 29(d), counsel for amici
curiae hereby certify as follows

A. Parties

All parties are listed in Petitioners’ Joint Opening Brief.

B. Rulings Under Review

The agency action under review is identified in Petitioners’ Joint Opening
Brief for Petitioners.

C. Related Cases

None.

D. Separate Brief

Undersigned counsel is aware of one additional potential amicus, the Building Biology Institute, in support of Petitioners. Counsel consulted to determine if a single amicus brief was practical and determined that it was not. Amici Natural Resources Defense Council et al. are focused on the adequacy of environmental review for the construction of wireless infrastructure and the relevance of the FCC’s RF standards to that review. The Building Biology Institute is focused on different issues including the relevance of the RF standards to tort liability for individual harm.

/s/ Sharon Buccino

Counsel for Amici Curiae,
Natural Resources Defense Council et al.

Dated: August 5, 2020

---

STATEMENT REGARDING ORAL ARGUMENT

Given the impact the challenged FCC order will have on this court’s previous decision in NRDC’s favor related to environmental review, undersigned counsel for amici respectfully requests the opportunity to participate in oral argument. NRDC successfully challenged a 2018 order by the Federal Communications Commission that had proposed to eliminate environmental and historic review for certain cell towers and other wireless infrastructure. United Keetoowah Band of Cherokee Indians v. FCC, 933 F.3d 728 (D.C. Cir. 2019).

The FCC’s 2019 order challenged by Petitioners in this case renders such environmental review meaningless. Under the challenged Order, environmental review is tied to the RF limits set by the FCC. As long as a wireless service provider certifies that the construction it proposes meets the FCC’s RF standards, no environmental analysis is required. The FCC’s arbitrary determination that the limits set in 1996 are still adequate today means that environmental review will not occur where it would otherwise if the FCC had followed the mandates of reasoned decision-making under the Administrative Procedure Act.

/s/ Sharon Buccino

Counsel for Amici Curiae,
Natural Resources Defense Council et al.

Dated: August 5, 2020

---

TABLE OF CONTENTS

• RULE 26.1 DISCLOSURE STATEMENT — i

• CERTIFICATE AS TO PARTIES, RULINGS, RELATED CASES, AND OF SEPARATE BRIEF — ii

• STATEMENT REGARDING ORAL ARGUMENT — iv

• TABLE OF AUTHORITIES — vii

• GLOSSARY — xii

• STATEMENT OF AUTHORITY TO FILE AND AUTHORSHIP AND FINANCIAL CONTRIBUTIONS — 3

• STATUTES AND REGULATIONS — 3

  • I. National Environmental Policy Act (NEPA) — 3
  • II. Telecommunications Act of 1996 (TCA) — 5

• SUMMARY OF THE ARGUMENT — 6

• ARGUMENT — 9

  • I. Exposure to Radiofrequency Radiation Has Increased with Proliferation of Wireless Services — 9

  • II. FCC Has Not Satisfied its Obligations under NEPA — 15

    • A. FCC Has Recognized Since 1985 that It Has Obligations under NEPA. — 15

    • B. 2019 Order Fails to Fulfill the FCC’s NEPA Obligations. — 16

  • III. FCC Misunderstands its Obligations under the TCA — 19

    • A. Congress Gave the FCC the Responsibility to Protect the Public from RF Hazards — 19

    • B. 2019 Order Fails to Fulfill the FCC’s Responsibility to Protect the Public — 22

      • 1. FCC Failed to Justify Its RF Standard — 19

      • 2. FCC Failed to Respond to Evidence of Environmental Harm — 26

• CONCLUSION — 28

• CERTIFICATE OF COMPLIANCE

• CERTIFICATE OF SERVICE

• ADDENDUM

---

TABLE OF AUTHORITIES

Cases

1. Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027 (D.C. Cir. 2008). 16
2. Balt. Gas and Electric Co. v. NRDC, 462 U.S. 87 (1983) . 4
3. Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 757 (2004) 4
4. Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 371 (1989) 3
5. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) 15
6. Natural Resources Defense Council, Inc. v. S.E.C., 432 F.Supp. 1190 (D.D.C. 1977), rev’d on other grounds 606 F.2d 1031 (D.C. Cir. 1979) 12
7. New York v. Nuclear Regulatory Commission, 681 F.3d 471 (D.C. Cir. 2012) . 4
8. Ne. Pennsylvania SMSA LP v. Smithfield Twp. Bd. of Supervisors, 433 F. Supp. 3d 703, 717 (M.D. Pa. 2020) 25
9. Oglala Sioux Tribe v. Nuclear Regulatory Comm’n, 896 F.3d 520 (D.C. Cir. 2018) 4
10. United Keetoowah Band of Cherokee Indians v. FCC, 933 F.3d 728 (D.C. Cir. 2019) iv, 2,15, 18
11. Washington Utilities and Transp. Comm’n v. FCC, 513 F.2d 1142 ((9th Cir. 1975), abrogated on other grounds by Booth v. Churner, 532 U.S. 731 (2001) . 16

Statutes

1. PL 104–104, February 8, 1996, 110 Stat 56, §704(b) . 5, 20
2. 5 U.S.C. §706(2)(A) 11
3. 42 U.S.C. §2021(h) 11
4. 42 U.S.C. §4332(2)(C) 13
5. 47 U.S.C. §§301, 307, 309 . 5, 16
6. 47 U.S.C. §319 5, 16
7. 47 U.S.C. §332(c)(7) 6, 24

Regulations

1. 40 C.F.R. §1500.1(b) 4
2. 40 C.F.R. §1502.22 4
3. 40 C.F.R. §1502.24 4
4. 47 C.F.R. §1.903 5, 16
5. 47 C.F.R. §1.1307(b) 5, 17
6. 47 C.F.R. §1.1310 5, 17
7. 47C.F.R. §1.1312(a) . 19

Other Authorities

1. B. Blake Levitt, ed., Cell Towers, Wireless Convenience? Or Environmental Hazard? (Safe Goods/ New Century Publishing 2000) 13

2. BioInitiative Working Group, BioInitiative 2012: A Rationale for Biologicallybased Exposure Standards for Low-Intensity Electromagnetic Radiation 26

3. Carol R. Goforth, “A Bad Call: Preemption of State and Local Authority to Regulate Wireless Communication Facilities on the Basis of Radiofrequency Emissions,” 44 N.Y.L. Sch. L. Rev. 311 (2001) 20

4. Christian Kallen, “Sonoma’s Planning Commission Approves Verizon Application for 3 New Cell Towers,” Sonoma Index-Tribune (Jan. 27, 2020) 25

5. Christopher Ketchum, Is 5G Going to Kill Us?, New Republic (May 8, 2020) 15

6. Comments of B. Blake Levitt and Henry C. Lai, In Matter of Reassessment of Federal Communications Commission Radiofrequency Exposure Limits and Policies (E.T. Docket No. 13-84)(Aug. 25, 2013) 26

7. EPA, Federal Radiation Protection Guidance for Public Exposure to Radiofrequency Radiation, 47 Fed. Reg. 57338 (December 23, 1982) 11

8. FCC, In the Matter of Responsibility of the Fed. Commc’ns Comm’n to Consider Biological Effects of Radiofrequency Radiation When Authorizing the Use of Radiofrequency Devices. Potential Effects of A Reduction in the Allowable Level of Radiofrequency Radiation on FCC Authorized Commercial Services and Equipment, General Docket No. 79-144, Report and Order, 100 FCC 2d 543 (1985) 7, 12, 16

9. FCC, In the Matter of Guidelines for Evaluating the Envtl. Effects of Radiofrequency Radiation, ET Docket No. 93-62, Notice of Proposed Rulemaking, 8 FCC Rcd 2849 (1993) . 23

10. FCC, Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, ET Docket No. 93-62, Report and Order, 11 FCC Rcd 15123 (1996) 23

11. FCC, In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., WT Docket No. 17-79, Declaratory Ruling and Third Report and Order, 33 FCC Rcd 9088 (2018) 14, 22

12. FCC, In the Matter of Proposed Changes in the Commission’s Rules Regarding Human Exposure to Radiofrequency Electromagnetic Fields Reassessment of Fed. Commc’ns Comm’n Radiofrequency Exposure Limits & Policies Targeted Changes to the Commission’s Rules Regarding Human Exposure to Radiofrequency Electromagnetic Fields, Docket Nos. ET 03-137, 13-84, 19-226, FCC Rcd, 2019 WL 6681944 (Dec. 4, 2019) 6, 9, 17

13. GAO, Efforts by the Environmental Protection Agency to Protect the Public from Environmental Nonionizing Radiation (CED 78-79) (March 29, 1978) 11
    .

14. International Appeal, Scientists Call for Protection from Non-ionizing Electromagnetic Field Exposure . 26

15. J. Elder, RADIOFREQUENCY RADIATION: ACTIVITIES AND ISSUES. U.S. Environmental Protection Agency, Washington, D.C., EPA/600/D86/135 (NTIS PB86217155), 1986

16. 13 Kenneth A. Jacobsen, A Tale of Two Circuits: Curbs on Legal Remedies for Exposure to Potentially Harmful Cell Phone Radiation Emissions, 10 Seton Hall Circuit Review 1, 2-3 (2013) 13

17. Letter from E. Ramona Trovata, EPA, Office of Radiation and Indoor Air, to Richard M. Smith, Chief, FCC, Office of Engineering and Technology (June 19, 1995) 21

18. Letter from FCC Chairman Mark S. Fowler to Anne Burford, EPA Administrator re Docket 81-43 (February 22, 1983) 11

19. Letter from Willie R. Taylor, Director, Office of Environmental Policy and Compliance, Dept. of Interior, to Eli Veenendaal, National Telecommunications and Information Administration, Dept. of Commerce (Feb. 7, 2014) 28

20. Letter from Lee Ann B. Veal, Director of the Radiation Protection Division, U.S. Environmental Protection Agency to Theodora Scarato, Executive Director, Environmental Health Trust, (July 8, 2020) 21

21. Martin Blank, Overpowered: What Science Tells Us About the Dangers of Cell Phones and Other WIFI-Age Devices (2013) 10

22. Memorandum from Robert F. Cleveland, Office of Engineering and Technology to FCC Secretary, Ex Parte Presentation by U.S. Environmental Protection Agency (March 22, 1995) 21

23. Norbert M. Hankin, EPA, Office of Air and Radiation, The Radiofrequency Radiation Environment: Environmental Exposure Levels and RF Radiation Emitting Sources (July 1986)(EPA-520/1-85-014) 11

24. Peter Thalau, Dennis Gehring, Christine Nießner, Thorsten Ritz & Wolfgang Wiltschko, Magnetoreception in birds: the effect of radiofrequency fields, 12 J. R. SOC. INTERFACE, (Dec. 2, 2014) . 27

25. Pew Research Center, Mobile Fact Sheet (June 12, 2019) . 14

26. RFIAWG Letter to Richard Tell, Chair, IEEE SCC28 (SC4), Risk Assessment Group (June 17, 1999) 23

27. Sen. Report 104-140, Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Bill, 1996, (Sept. 13, 1995)(to accompany H.R. 2099) . 6, 8, 20

28. S. Cucurachi, W.L.M. Tamis, M.G. Vijver, W.J.G.M. Peijnenburg, J.F.B. Bolte & G.R. de Snoo, A review of the ecological effects of radiofrequency electromagneticfields (RF-EMF), 51 ENVTL. INT’L, 116 – 14 (2013) . 27

29. Senavirathna Mudalige, Don Hiranya Jayasanka and Takashi Asaeda, The significance of microwaves in the environment and its effect on plants, Environmental Reviews, 2014, 22(3): 220-228 27

30. United Nations, International Telecommunication Union, Global ICT Developments . 13

31. U.S. Government Accountability Office, GAO 12-771, Telecommunications: Exposure and Testing Requirements for Mobile Phones Should be Reassessed (2012) 10

GLOSSARY

• ANSI = American National Standards Institute
• APA = Administrative Procedure Act
• CEQ = Council on Environmental Quality
• EPA = U.S. Environmental Protection Agency
• EMF = Electro-magnetic Fields
• FCC = Federal Communications Commission
• IEEE = Institute of Electrical and Electronics Engineers
• ITU = International Telecommunications Union
• NCRP = National Council on Radiation Protection
• NEPA = National Environmental Policy Act
• RF = Radiofrequency
• RFIAWG = Radiofrequency Interagency Work Group
• TCA = Telecommunications Act of 1996

---

INTEREST OF AMICI CURIAE

Amici are a national environmental organization and elected officials who support environmental and public health protections for all and seek inclusive decision-making processes. They rely on the National Environmental Policy Act (NEPA) to ensure that federal government decisions – such as the licensing of use of the spectrum to provide wireless services – are informed by the best available science and input from citizens affected by those decisions.

The FCC’s December 4, 2019 order compromises interests of amici in three critical ways:

(1) The FCC failed to complete an Environmental Impact Statement under NEPA before terminating its inquiry into the adequacy of its radiofrequency (RF) standards.

(2) The FCC’s inadequate health standards excuse wireless service providers from conducting environmental review even though these services may expose humans and the environment in which they live to harmful radiation.

(3) The FCC’s order renders any environment review that is done inadequate because it is based on inadequate health standards. Rather than conduct new analysis of the potential environmental harm its actions may cause, the FCC will simply point to its decision in its December 4 order that its RF standards are adequate to satisfy NEPA. This might be fine if the FCC supported its decision with sufficient evidence. As explained by Petitioners, the Commission did not.

Natural Resources Defense Council (NRDC) is a national non-profit environmental advocacy organization that seeks effective environmental and public health policies for all communities. NRDC successfully challenged a 2018 order by the Federal Communications Commission that proposed to eliminate environmental and historic review for certain cell towers and other wireless infrastructure. United Keetoowah Band of Cherokee Indians v. FCC, 933 F.3d 728 (D.C. Cir. 2019). The FCC’s 2019 order challenged by Petitioners in this case would render such environmental review practically meaningless. When reviewing actions wireless service providers take to use the spectrum as the FCC has authorized, the Commission is unlikely to conduct new environmental analysis. Instead, the FCC will point to its determination in the challenged 2019 order that its health standards are adequate as satisfaction of its duty to look at potential harm. This might be fine if the FCC analyzed recent science and changed its standards to reflect this science. The FCC, however, failed to do so.

Local elected officials¹ are and have been directly affected by the FCC’s failure to set RF standards adequate to protect public health and the environment. Verizon and other telecom companies are rapidly constructing enhanced 4G LTE and 5G networks in communities across the country. Elected officials in these communities are accountable to their constituents to protect their health and the environment. The Telecommunications Act of 1996 limits local and state regulation of wireless services based on environmental effects. Congress concentrated authority to set RF standards applicable to construction of wireless infrastructure in the FCC. The FCC’s failure to set adequate standards prevents local elected amici from delivering the protection they owe those who have elected them.

STATEMENT OF AUTHORITY TO FILE AND AUTHORSHIP AND FINANCIAL CONTRIBUTIONS

All parties have consented to the filing of this brief. This brief was not authored in whole or part by counsel for a party. No party or counsel for a party, and no person other than the amici curiae or their counsel, contributed money intended to fund its preparation or submission.

---

STATUTES AND REGULATIONS

I. National Environmental Policy Act (NEPA)

Signed into law in 1970 by President Nixon, NEPA is an action-forcing statute applicable to all federal agencies. Its commitment is to “prevent or eliminate damage to the environment . . . by focusing government and public attention on the environmental effects of proposed agency action.” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 371 (1989) (internal quotations omitted). The statute requires “that the agency will inform the public that it has indeed considered environmental concerns in its decision-making process.” Balt. Gas and Electric Co. v. NRDC, 462 U.S. 87, 97 (1983).

NEPA is designed to ensure that agencies look before they leap. NEPA established the Council on Environmental Quality (CEQ) “with the authority to issue regulations interpreting it.” New York v. Nuclear Regulatory Commission, 681 F.3d 471, 476 (D.C. Cir. 2012), quoting Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 757 (2004). CEQ regulations require that “environmental information is available to public officials and citizens before decisions are made and before actions are taken.” 40 C.F.R. §1500.1(b). See Oglala Sioux Tribe v. Nuclear Regulatory Comm’n, 896 F.3d 520 (D.C. Cir. 2018).

CEQ’s NEPA regulations require agencies to “insure the professional integrity, including scientific integrity, of the [agency’s] discussions and analyses….” 40 C.F.R. §1502.24. Where data is not presented in the NEPA document, the agency must justify not obtaining that data. 40 C.F.R. §1502.22. In addition, the regulations provide that the “[h]uman environment shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment.”²

II. Telecommunications Act of 1996 (TCA)

Pursuant to the TCA, the FCC regulates use of spectrum that makes wireless communication possible. Providers of personal wireless services must obtain an FCC license. 47 U.S.C. §§301, 307, 309; 47 C.F.R. §1.903. In addition, a construction permit is required before certain wireless infrastructure can be built. 47 U.S.C. §319. The FCC’s regulations require that “[s]tations in Wireless Radio Services . . . be used and operated . . . with a valid authorization granted by the Commission under the provisions of this part. . . .” 47 C.F.R. §1.903.

The FCC’s responsibilities include setting standards to protect the public from the environmental effects of radiofrequency (RF) radiation. While several agencies had engaged in research regarding the health and other environmental impacts of RF radiation, Congress in 1996 concentrated regulatory authority over human exposure to RF radiation from communication services and facilities in the FCC. The TCA required the FCC to “prescribe and make effective rules regarding the environmental effects of radio frequency emissions” within 180 days of the Act’s enactment.³ The Act also prohibited state and local regulation of wireless facilities based on environmental effects of RF emissions so long as those facilities complied with relevant FCC regulations. 47 U.S.C. §332(c)(7)(B)(iv). That same year [1996], Congress eliminated funding for Environmental Protection Agency (EPA) activities related to RF radiation.⁴

---

SUMMARY OF ARGUMENT

The Federal Communications Commission has failed to protect the public from radiofrequency emissions. The Commission’s legal obligations flow from two statutes – the National Environmental Policy Act and the Telecommunications Act. NEPA requires the Commission to analyze the environmental impacts – including those of radiofrequency radiation – of its authorization of wireless service providers. The Telecommunications Act goes further and imposes an affirmative duty on the FCC to protect the public from environmental effects of radiofrequency radiation. The FCC’s December 4, 2019,⁵ order misinterprets the Commission’s responsibilities. The FCC fails to support its decision to rely on its 1996 standards.

When the FCC first addressed RF exposure standards, it did so in response to the Commission’s obligations under NEPA. In 1985, the FCC recognized that it was “required to make a threshold determination as to whether the facilities it approves are ‘major Federal actions significantly affecting the quality of the human environment,’ thus triggering environmental review, regardless of whether federal guidelines or standards currently exist for general public exposure to RF radiation.”⁶ The Commission’s duty under NEPA is to inform.⁷ As the FCC itself recognized, it could not authorize the use of the electromagnetic spectrum for wireless services without analyzing the environmental impacts.

Congress gave the FCC additional duties in the TCA, including the responsibility to set standards adequate to protect the environment (including humans) from radiofrequency emissions. The TCA limits state and local regulation of wireless service facilities to the extent they comply with FCC emission regulations.

In restricting state and local authority to protect the public from radiofrequency emissions, Congress placed the responsibility to protect on the FCC. Congress further concentrated responsibility in the FCC by eliminating funding for EPA activities related to electro-magnetic fields (EMF).⁸ The Senate Report on EPA appropriations declares that “EPA should not engage in EMF activities.”⁹

Once entrusted with the authority to protect the public from RF emissions, the FCC had the responsibility to exercise that authority. The Commission has failed to do so. The FCC’s December 4, 2019, order terminates the Commission’s inquiry into the adequacy of its RF standards without making any change to limits that were set over twenty years ago. This action lacks the support in the record that the Administrative Procedure Act (APA) requires. Without meaningful RF limits and an effective way to ensure that they are met, the FCC leaves the public without the protection or even the information that Congress required the FCC to provide.

---

ARGUMENT

As Petitioners explain, the FCC’s 2019 Order violates fundamental principles of the APA. The FCC finalized several actions in the December 4, 2019, order. Most important, it resolved the inquiry it had initiated in 2013 regarding the adequacy of its RF radiation limits. Despite numerous scientific studies of potential harm from exposure below the limits set by the FCC in 1996, the Commission chose not to change them.¹⁰ The FCC misunderstands its responsibilities under NEPA and the TCA. As a result, the record lacks the support for the FCC’s decision to continue to rely upon its 1996 limits for RF exposure.

I. Exposure to Radiofrequency Radiation Has Increased with Proliferation of Wireless Services.

Wireless services such as cell phones operate by using a form of electromagnetic radiation – energy moving through space as a series of electric and magnetic waves. The spectrum of electromagnetic radiation ranges from very low frequencies, such as electrical power from power lines to extremely high frequencies such as gamma rays. The portion of the spectrum used by mobile phones and other telecommunications such as radio and television broadcasting is referred to as the radiofrequency (or RF) spectrum as shown below.¹¹

Scientific studies have raised concern about the health and environmental effects of non-ionizing radiation from wireless communication services. Ionizing radiation from x-rays and nuclear power plants, which vibrates at high frequencies and produces large amounts of energy, has long been regarded as extremely dangerous to humans and other living creatures.¹² With enough energy to knock electrons free from their orbit around the nucleus of an atom, ionizing radiation creates unstable atoms with positive and negative charges. Scientists are now realizing that non-ionizing radiation also can cause biological effects in all systems of the body and in wildlife, including changes in DNA.¹³

From its earliest days, the U.S. Environmental Protection Agency (EPA)¹⁴ investigated adverse health and environmental effects of non-ionizing radiation. Pursuant to authority under 42 U.S.C. §2021(h), EPA published notice of its intent to develop guidance for federal agencies to limit public exposure to radiofrequency radiation in 1982.¹⁵ FCC Chairman Mark Fowler wrote to EPA encouraging the agency to complete guidance “as expeditiously as possible so that a uniform federal standard will be available for use by the FCC and other affected agencies.”¹⁶ In 1986, EPA published a report discussing the sources and levels of radiofrequency radiation to which the public was exposed and other analysis relevant to the development of exposure guidelines.¹⁷

Even as the EPA investigation was underway, the FCC recognized that it had its own legal obligation under NEPA to determine whether the facilities it approves are major federal actions triggering an environmental review. The Commission issued its first regulations addressing RF radiation in 1985.¹⁸ The Commission’s obligation to assess the environmental impacts of the actions it authorized did not depend on whether federal guidelines or standards otherwise existed for general public exposure to RF radiation.¹⁹ In the Commission’s words, “an agency ‘cannot refuse to give serious consideration to environmental factors merely because it thinks that another agency should assume the responsibility for promoting the policies of NEPA.’”²⁰

The Commission based its 1985 action on privately promulgated health and safety guidelines for RF radiation established by the American National Standards Institute (ANSI) in 1982,²¹ which were based on short-term, acute thermal effects of exposure to RF radiation. The assumption underlying these standards was that electromagnetic fields were harmful to humans only at levels powerful enough to increase the temperature of human tissue.²²

At the time, the FCC did not impose specific radiation limits on all the industries it regulated. Rather than prohibiting services that exceeded the voluntary ANSI/IEEE guidelines, the FCC used the guidelines as a trigger to require an analysis of environmental impacts by wireless service providers.²³

The worldwide explosion of wireless services has dramatically increased exposure of humans and wildlife to radiofrequency radiation. The International Telecommunications Union (ITU) reported an increase in global cellular subscriptions from 15.5% of the population in 2001 to an estimated 96.2% in 2013.²⁴

Ninety-six percent of Americans own a cell phone, over three-quarters of which are smartphones. In contrast to the largely stationary internet of the early 2000s, Americans today are connected to the world of digital information while “on the go” via these smartphones and other mobile devices.²⁵ According to the FCC’s recent wireless competition report, “American demand for wireless services continues to grow exponentially.”²⁶

So-called 5G – the fifth generation of wireless service technology – dramatically increases human exposure to RF radiation. Previous generations of macro towers could be built several miles apart, but the 5G “millimeter wave spectrum simply cannot propagate long distances over a few thousand feet—let alone a few hundred.”²⁷ As a result, the FCC anticipates “hundreds of thousands of wireless facilities” will be deployed in the next few years, “equal to or more than the number providers have deployed in total over the last few decades.”²⁸ As the 5G buildout continues, Americans are forced to “live with involuntary 24/7 radiation.”²⁹

As Petitioners explain, the FCC’s December 4, 2019, action ignores this new technology and its impacts. Pet. Br. at 34-36. Such failure to “consider an important aspect of the problem” is exactly the kind of arbitrary and capricious decision-making the Administrative Procedure Act prohibits. United Keetoowah Band of Cherokee Indians, 933 F.3d at 738, citing Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

II. FCC Has Not Satisfied its Obligations under NEPA

A. FCC Has Recognized Since 1985 that It Has Obligations under NEPA

As the FCC itself acknowledged, the Commission is “required to make a threshold determination as to whether the facilities it approves are ‘major Federal actions significantly affecting the quality of the human environment,’ thus triggering environmental review.”³⁰ Providers of personal wireless services must obtain an FCC license. 47 U.S.C. §§301, 307, 309; 47 C.F.R. §1.903. In addition, a construction of certain wireless infrastructure such as a cell tower sometimes requires an FCC permit. 47 U.S.C. §319. Courts have confirmed the application of NEPA to FCC actions. See, e.g., Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027 (D.C. Cir. 2008)(failure to consider potential impacts of cell towers on migratory birds violated NEPA); Washington Utilities and Transp. Comm’n v. FCC, 513 F.2d 1142, 1167 (9th Cir. 1975)(The Commission is required “to consider environmental values ‘at every distinctive and comprehensive stage of the (agency’s) process.’”), abrogated on other grounds by Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001).

B. 2019 Order Fails to Fulfill the FCC’s NEPA Obligations

The FCC’s Order fails to satisfy its duties to inform the public as well as to inform its own decision. First, the FCC failed to complete any NEPA analysis to support its order or explain why the order did not trigger the FCC’s NEPA obligations. Pet. Br. at 78-79. Numerous scientific studies were available to the FCC if it had taken its environmental review responsibilities seriously.³¹ Instead, the FCC stuck its head in the sand and did not even mention many of these studies of potential environmental harm in its 2019 order.

Second, the 2019 order limits the environmental review that occurs when companies construct facilities to provide the services that the FCC has licensed. As amended by the December 4 order, the FCC’s rules excuse companies from submitting an environmental assessment of the impacts of proposed wireless services and facilities as long as such actions meet the FCC’s RF limits.³² Whether environmental review occurs rests upon whether the FCC has done its job in setting adequate RF radiation limits. As explained in Petitioners’ brief, the FCC has failed to complete the job Congress gave it. Pet. Br. at 62-68.

If allowed to stand, the FCC’s 2019 order eviscerates the environmental review this court recently ruled that the Commission must provide. On August 9, 2019, this court held that the FCC had failed to justify its elimination of review under NEPA and the National Historic Preservation Act. United Keetoowah Band of Cherokee Indians, 933 F.3d 728. The FCC did not appeal that decision.

Instead, the FCC tries to circumvent the court’s prior decision with the challenged order. The Commission ended its inquiry into the adequacy of its 1996 limits on RF radiation without changing them or providing sufficient evidence to justify them. Pet. Br. 67-68. Moreover, the Commission offered no meaningful response to the numerous peer-reviewed scientific studies received as part of the inquiry that raised concerns about the environmental effects from exposure to radiation below the FCC’s limits. Pet. Br. 65. The FCC’s inadequate RF standards preclude adequate environmental review.

As a result of its 2019 order, the FCC avoids providing the information that NEPA requires. As wireless service providers propose to construct hundreds [of thousands] of new towers and other infrastructure across the country to use the spectrum pursuant to FCC licenses, the FCC is unlikely to conduct new environmental analysis. Instead, the Commission will invoke the determination that its health standards are adequate as satisfaction of its duty to look at potential harm. This might be fine had the FCC analyzed recent science and changed its standards to reflect this science. Instead, the Commission chose to stick its head in the sand – exactly the kind of government action that NEPA is designed to prevent.

Under the FCC’s Order, no environmental review under NEPA is required if proposed wireless services fall below the FCC’s RF standards. And the wireless service provider determines on its own whether it has met the standards. A wireless service provider’s determination that its facilities are exempt excuses completion of an environmental assessment under NEPA. 47 C.F.R. § 1.1312(a). As a result of the provider’s determination that it is exempt, the FCC receives no information from the company about the environmental effects of RF radiation from those facilities and the devices they support. The public does not get any information either.

III. FCC Misunderstands Its Obligations under the TCA

A. Congress Gave the FCC the Responsibility to Protect the Public from RF Hazards

As wireless communication expanded, Congress fundamentally changed the legal framework governing telecommunications. The Telecommunications Act of 1996 was the first major revision to federal telecommunications law since 1934. In deregulating the radio, television, cable and telephone industries, the Act touched off an explosion of wireless communication services. One way the Act facilitated rapid deployment of new technologies was by concentrating regulatory authority over the environmental effects of RF radiation in the FCC.

Congress prohibited state and local regulation of wireless facilities based on environmental effects of radiofrequency emissions so long as the facilities complied with FCC regulations concerning such emissions.³³ The Act required the FCC to “prescribe and make effective rules regarding the environmental effects of radio frequency emissions” within 180 days.³⁴

Seeking to avoid a patchwork of standards across the country, Congress gave the FCC the authority and responsibility to establish exposure limi ts to address the environmental effects of RF radiation.³⁵ Wireless service providers did not want the difficulty and expense of complying with different local and state regulations.³⁶ The regulatory responsibility that Congress gave the FCC in 1996 to limit the environmental impacts differed from its previous responsibility under NEPA to understand the impacts.

In addition to barring state and local regulation of the environmental effects of RF radiation, Congress limited EPA oversight by eliminating EPA’s funding for activities related to RF radiation.³⁷ At the time, EPA was poised to issue new standards for RF radiation. It had briefed both the FCC and the National Telecommunications and Information Administration regarding its work to develop RF exposure guidelines.

• In Phase 1, EPA recommended moving forward immediately to address thermal impacts of RF radiation.

• In Phase 2, acknowledging potential non-thermal effects, EPA proposed convening a group of national experts to address “modulated and nonthermal exposures.”³⁸

• Three months later, EPA informed the FCC that it would have final guidelines by early 1996³⁹ based on technical input from the Radiofrequency Interagency Work Group (RFIAWG),⁴⁰ in which the FCC participated.

• EPA never completed this work.⁴¹ By eliminating EPA’s funding for it, Congress gave the FCC the authority to control limits on RF radiation from wireless services. With that authority came responsibility.

B. 2019 Order Fails to Fulfill the FCC’s Responsibility to Protect the Public

The FCC fails in the 2019 order to recognize its regulatory responsibility to protect the public from RF radiation. Although the FCC has aggressively limited state and local authority to protect the public from the environmental effects of RF radiation,⁴² it has failed to collect and review the information it needs to support its own RF radiation standards, which were last updated in 1996.

1. FCC Failed to Justify its RF Standards

In its 2019 order, the FCC resolved the inquiry it had initiated in 2013 regarding the adequacy of its RF radiation limits. Despite numerous scientific studies of potential harm from exposure below the limits set by the FCC in 1996, the Commission made the decision not to change them.⁴³

The Commission had not updated its RF standards since 1996.

• Following issuance of the FCC’s original standards in 1985, ANSI/IEEE adopted new guidelines in 1992 for RF radiation exposure that applied to additional categories, including cell phones.

• The FCC proposed updating its NEPA regulations to reflect ANSI/IEEE’s new findings.⁴⁴

While the FCC’s proposal was pending, Congress passed the Telecommunications Act, which directed the FCC to “prescribe and make effective rules regarding the environmental effects of radio frequency emissions.”⁴⁵ Recognizing the importance of these standards, Congress dictated that the FCC complete its pending rulemaking within 180 days of enactment of the TCA. The Commission finalized its rules on August 1, 1996.⁴⁶

The FCC’s responsibility did not end with its 1996 rulemaking. Just like EPA must ensure that its public-health protections reflect current science, the FCC must ensure its RF standards are up-to-date based on current knowledge. The Commission has failed to do so.

As early as 1999, the RFIAWG, which included scientists and officials from across the government, criticized the FCC’s standards for failing to be based on biological factors.⁴⁷ Based instead on dosimetric factors, the standards were designed to make the technology work rather than to protect life. Over ten [twenty] years later, the FCC still has not changed the limits to address the RFIAWG’s criticism. The Commission ignored the critical issues raised by the RFIAWG even though the group included the FCC’s own Senior Scientist in the Office of Engineering & Technology, Robert Cleveland.⁴⁸

The FCC’s obligation to “prescribe and make effective rules” is especially critical given the limit on the ability of state and local governments to set their own health standards applicable to radiofrequency emissions.⁴⁹ The TCA prohibits state and local regulation of “the placement, construction and modification of personal wireless service facilities on the basis of the environmental effects of RF emissions to the extent that such facilities comply with the [FCC’s] RF standard.”⁵⁰ Adding more force to this prohibition, the Act gives companies the right to sue a state or local government challenging “any final action or failure to act” inconsistent with the TCA’s limitations on state and local authority.⁵¹ The Act requires courts to resolve such lawsuits on an expedited basis.⁵²

Such large limitations on state and local authority have left elected officials across the country reluctant to restrict industry proposals for new wireless services and towers and other infrastructure necessary to provide them. In approving use permits for three Verizon wireless telecommunications towers in Sonoma, for example, the [City of] Sonoma County [Planning] Commission felt “there was no other option that wouldn’t invite a lawsuit from Verizon.”⁵³ In fact, Verizon had previously filed suit against multiple jurisdictions in California that refused their applications, including Monterey, Danville, Piedmont, Hillsborough, Seaside and Los Altos[_xxx].⁵⁴

Courts have frequently struck down local government attempts to regulate siting of wireless facilities. In Pennsylvania, for example, a court held the Smithfield Township Board of Supervisors unlawfully denied a permit application because the proposed use was “detrimental to the health, safety and general welfare of the present or future residents of Smithfield Township.” The court granted the application.

According to the court, the permit applicant Verizon Wireless did not bear the burden to establish that its proposed activity did not have detrimental effects to health, safety and welfare. Ne. Pennsylvania SMSA LP v. Smithfield Twp. Bd. of Supervisors, 433 F. Supp. 3d 703, 717 (M.D. Pa. 2020).

Given the cost of litigation, local governments are reluctant to spend taxpayer dollars to defend efforts to regulate wireless infrastructure even when they might prevail in the end. The result is local governments feel powerless to respond to citizen concerns about the wireless infrastructure including the potential impacts to constituents’ health.

Congress gave the FCC responsibility to protect the public from RF hazards. The Commission has the burden to justify that its standards are effective. Rather than provide such justification, the Commission’s 2019 order decides that its 1996 limits are adequate despite significant evidence suggesting that they are not.

2. FCC Failed to Respond to Evidence of Environmental Harm

As Petitioners explain, radiofrequency radiation generated by wireless service has biological effects that can harm human health as well as other living creatures in the environment. Pet. Br. at 18-20, 23, 26, 34-35. In 2012, in twenty four technical chapters, the BioInitiative Working Group authors discussed the content and implications of about 1,800 peer-reviewed scientific studies conducted since 2007.⁵⁵ These studies indicate, among other things, DNA damage, carcinogenicity and reproductive effects. Over 250 scientists from over 44 nations have signed an International Appeal calling for protection from non-ionizing electromagnetic field exposure.⁵⁶ Such information was in the record before the FCC, but the Commission failed to address it. Pet. Br. 19, 23-24, 36.

In addition to its impact on humans, radiofrequency radiation poses harmful effects to flora and fauna. In a review of 113 studies from peer-reviewed publications, seventy percent of the studies concluded that radiofrequency electromagnetic fields had a significant effect on birds, insects and plants.⁵⁷ In a 2013 literature review, the authors concluded that even for short exposure periods (<15 mins to a few hours), non-thermal effects were seen that can persist for long periods.⁵⁸

Scientific research also indicates that electromagnetic fields can disrupt navigation abilities of migratory birds.⁵⁹ In five field studies analyzing the impact of RF-EMF exposure on bird populations living near cell phone towers or base stations, a significant effect was observed in breeding density, reproduction, or species composition.⁶⁰ The Department of the Interior raised concerns regarding the harm that non-ionizing electromagnetic radiation may cause to migratory birds.⁶¹ These are just a few of the many scientific studies that were available to the FCC if it had chosen to take its duty to protect the public from environmental harm seriously. As Petitioners explain, such failure to consider and respond to the studies addressing the potential of environmental harm violated fundamental principles of the Administrative Procedures Act as well as the responsibility that Congress gave the FCC in the TCA. Pet. Br. at 50-51, 62-68.

CONCLUSION

With authority comes responsibility. When Congress concentrated authority over radiofrequency radiation in the FCC, it imposed a duty to protect as well as inform. The Telecommunications Act of 1996 required the FCC to “prescribe and make effective rules regarding the environmental effects of radio frequency emissions.” As a result, the record supporting the FCC’s December 4, 2019, action must show that its RF standards are safe and reliable. The environmental review required by NEPA is indispensable to such determination. The burden is on the FCC to justify its RF standards. It is a burden the Commission has failed to meet. For the reasons stated herein, as well as in Petitioners’ Brief, the Court should vacate the challenged order.

Footnotes