American Bird Conservancy, Inc. v. F.C.C.

• Citation: 516 F.3d 1027
• Decision Date: 19 February 2008
• Docket Number: No. 06-1165.,06-1165.
• Parties: AMERICAN BIRD CONSERVANCY, INC. and Forest Conservation Council, Petitioners v. FEDERAL COMMUNICATIONS COMMISSION, Respondent CTIA—The Wireless Association, et al., Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

516 F.3d 1027

AMERICAN BIRD CONSERVANCY, INC. and Forest Conservation Council, Petitioners v. FEDERAL COMMUNICATIONS COMMISSION, Respondent CTIA—The Wireless Association, et al., Intervenors.

No. 06-1165.

United States Court of Appeals, District of Columbia Circuit.

Argued September 11, 2007.

Decided February 19, 2008.

Petition for Review of an Order of the Federal Communications Commission.

Jennifer C. Chavez argued the cause for petitioner. With her on the briefs was Stephen E. Roady.

Daniel M. Armstrong, Associate General Counsel, Federal Communications Commission, argued the cause for respondent. With him on the brief were Andrew C. Mergen and Jennifer L. Scheller, Attorneys, U.S. Department of Justice, Samuel L. Feder, General Counsel, Federal Communications Commission, Joseph R. Palmore, Acting Deputy General Counsel, and Laurel R. Bergold, Counsel.

Michael F. Altschul, Gary L. Phillips, Michael P. Goggin, M. Robert Sutherland, Ian H. Gershengorn, Elaine J. Goldenberg, Jane E. Map, Jerianne Timmerman, Ann West Bobeck, Michael T. Fitch, L. Andrew Tollin, and Craig E. Gilmore were on the

Before ROGERS, GARLAND and KAVANAUGH, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

PER CURIAM:

The American Bird Conservancy and Forest Conservation Council petition for review of an order by the Commission denying in part and dismissing in part their petition seeking protection of migratory birds from collisions with communications towers in the Gulf Coast region. In re Petition by Forest Conservation Council, American Bird Conservancy and Friends of the Earth for National Environmental Policy Act Compliance ("Order"), 21 F.C.C.R. 4462 (2006). Their petition claimed that Commission rules and procedures for approving new towers failed to comport with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., and the Migratory Bird Treaty Act ("META"), 16 U.S.C. § 701 et seq. We vacate the Order because the Commission failed to apply the proper NEPA standard, to provide a reasoned explanation on consultation under the ESA, and to provide meaningful notice of pending tower applications.

I.

Concerned about the. effect of "tower kill" on migratory birds in the Gulf Coast region of the United States, Petitioners, on August 26, 2002, formally requested that the Commission, among other things, (i) prepare an environmental impact statement ("EIS") under NEPA analyzing the effects of all past, present, and reasonably foreseeable tower registrations on migratory birds in the Gulf Coast region; (ii) initiate formal consultation with the United States Fish and Wildlife Service ("FWS") pursuant to the ESA regarding the Gulf Coast towers' impact on various bird species; and (iii) take steps in accordance with the META to reduce bird mortality at Gulf Coast tower sites. Petitioners also requested that they be provided notice of and an opportunity to comment on proposed Gulf Coast tower registration applications before they are granted.

While the Gulf Coast petition was pending, the Commission commenced a nationwide proceeding in a new docket. On August 20, 2003, it issued a Notice of Inquiry to gather evidence regarding communications towers' impact on migratory birds throughout the United States, and to determine whether to change its current rules and processes to better protect migratory birds. See In re Effects of Communications Towers on Migratory Birds, Notice of Inquiry, 18 F.C.C.R. 16,938, 16, 938 ¶ 1 (2003). In response, the Commission received more than 250 comments expressing divergent views on the law and the facts, including the frequency of fatal collisions and the overall effect on migratory bird populations. Environmental groups claimed that towers kill 4 million to 50 million birds per year, see, e.g., American Bird Conservancy Comments at 2, WT Docket No. 03-187 (Nov. 11, 2003), while industry groups claimed that such claims are overstated, see, e.g., Cellular Telecommunications & Internet Association and National Association of Broadcasters Comments at 9, WT Docket No. 03-17 (Nov. 12, 2003).

In April 2005, seeking to compel the Commission to act on the Gulf Coast petition, Petitioners filed a petition for a writ of mandamus in this court. Five days after oral argument, the Commission issued the Order denying in part, dismissing in part, and deferring in part the Gulf Coast petition. 21 F.C.C.R. 4,462. In dismissing the Gulf Coast petition, the Commission stated that it would address aspects of the migratory bird issue as part of a separate docket examining the issue on a nationwide basis. Order, 21 F.C.C.R. at 4463 ¶ 1. The court thereafter dismissed the mandamus case as moot. See. In re Am. Bird Conservancy, Inc., D.C.Cir. Docket No. 05-1112 (Apr. 19, 2006).

In November 2006, the Commission issued a notice of proposed rulemaking in the nationwide proceeding in which it sought further comment on the factual, legal, and policy issues regarding the impact of communications towers on migratory birds. In re Effects of Communications Towers on Migratory Birds, Notice of Proposed Rulemaking ("NPRM"), 21 F.C.C.R. 13,241 (2006). The Commission asked generally whether the impact warrants Commission action under the environmental statutes, id. at 13,242 ¶ 1, and expressed uncertainty about the underlying facts, seeking "further comment supported by evidence regarding the number of migratory birds killed annually by communications towers," id. at 13,259 ¶ 36. It also sought comments on "the legal framework governing the Commission's obligations in this area," id. at 13,256 ¶ 32, and on how to define significant environmental effects in this context. Additionally, the Commission invited comment on whether it should amend its environmental rules or take action "to reduce the number of instances in which migratory birds collide with communications towers." Id. at 13, 242 ¶1, 13,258 ¶ 34. The Commission "tentatively" proposed that communications towers use "medium intensity white strobe lights" rather than red lights that may present a higher risk of tower kill. Id. at 13,242-43 ¶3. The comment period in the nationwide rulemaking proceeding closed in May 2007, but the Commission has yet to take final action.

Meanwhile, in May 2006, Petitioners sought review of the Order. See 47 U.S.C. § 403(a); 28 U.S.C. § 2342(1). Petitioners have standing, for members of these organizations engage in recreational birdwatching and research on birds in the Gulf Coast region, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and we proceed to review the Order to determine whether it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, 5 U.S.C. § 706(2)(A).¹

II.

Petitioners contend that the MBTA, NEPA, and ESA require changes to the Commission's rules and procedures regarding communications towers in the Gulf-Coast region. See 47 C.F.R. Part 17.

A.

The MBTA provides, with certain exceptions, that it shall be unlawful "to pursue, hunt, take, capture, [or] kill" any migratory bird. 16 U.S.C. § 703. The court has held that the MBTA applies to federal agencies. Humane Soc'y of the United States v. Glickman, 217 F.3d 882, 885-86 (D.C.Cir.2000). Petitioners contend that the Commission unlawfully "takes" migratory birds when birds die in collisions with Commission-licensed towers and sought to have the Commission comply with the MBTA "by taking steps to reduce or eliminate intentional or unintentional `takes' of migratory birds." Gulf Coast Petition at 20.

The Commission stated in the Order that it was analyzing the MBTA issue in the ongoing nationwide proceeding and would therefore defer consideration of the MBTA issue to that docket. Collisions of birds and towers occur throughout the United States and the nationwide proceeding was designed to obtain additional relevant information. We thus conclude that the Commission acted reasonably in deferring consideration of this issue. See Mobil Oil Exploration & Producing Se. Inc. v. United Distrib. Cos., 498 U.S. 211, 230, 111 S.Ct. 615, 112 L.Ed.2d 636 (1991); see also FCC v. Schreiber, 381 U.S. 279, 290-91, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1965).

B.

NEPA does not impose substantive environmental mandates, but it does require federal agencies to establish procedures to account for the environmental effects of certain proposed actions. See Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756-57, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). In particular, for "major Federal actions significantly affecting the quality of the human environment," agencies must prepare an EIS that examines, among other things, the adverse environmental effects of a proposed action and potential alternatives. 42 U.S.C. § 4332(2)(C). Petitioners contend that NEPA requires the Commission to prepare a programmatic EIS to assess the environmental impact of towers in the Gulf Coast region.

The regulations issued by the Council on Environmental Quality ("CEQ") to implement NEPA include as a "major Federal action" approvals by Executive Branch agencies of specific projects "by permit or other regulatory decision." 40 C.F.R. § 1508.18(b)(4). The regulations allow agencies to divide their actions into three categories: those that ordinarily require an EIS; those that require an initial, less rigorous "environmental assessment" ("EA") but not necessarily an EIS; and those that are "categorically excluded" and require neither an EIS nor an EA. Id. § 1507.3(b)(2). Agencies implementing categorical exclusions "shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect." Id. §§ 1508.4, 1507.3(b)(1). CEQ regulations also provide that an agency should prepare a programmatic EIS if actions are "connected," "cumulative," or "similar," such that...