Envtl. Health Trust v. Fed. Commc'ns Comm'n

• Decision Date: 13 August 2021
• Docket Number: No. 20-1025,C/w 20-1138,20-1025
• Citation: 9 F.4th 893
• Parties: ENVIRONMENTAL HEALTH TRUST, et al., Petitioners v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents
• Court: U.S. Court of Appeals — District of Columbia Circuit

9 F.4th 893

ENVIRONMENTAL HEALTH TRUST, et al., Petitioners

v.FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents

No. 20-1025

C/w 20-1138

United States Court of Appeals, District of Columbia Circuit.

Argued January 25, 2021

Decided August 13, 2021

W. Scott McCollough argued the cause for petitioners. With him on the joint briefs were Edward B. Myers and Robert F. Kennedy, Jr.

Sharon Buccino was on the brief for amici curiae Natural Resources Defense Council and Local Elected Officials in support of petitioners.

Dan Kleiber and Catherine Kleiber, pro se, were on the brief for amici curiae Dan and Catherine Kleiber in support of peititioners.

James S. Turner was on the brief for amicus curiae Building Biology Institute in support of petitioners.

Stephen L. Goodman was on the brief for amicus curiae Joseph Sandri in support of petitioners.

Ashley S. Boizelle, Deputy General Counsel, Federal Communications Commission, argued the cause for respondents. With her on the brief were Jonathan D. Brightbill, Principal Deputy Assistant Attorney General at the time the brief was filed, U.S. Department of Justice, Eric Grant, Deputy Assistant Attorney General at the time the brief was filed, Jeffrey Beelaert and Justin Heminger, Attorneys, Thomas M. Johnson, Jr., General Counsel at the time the brief was filed, Federal Communications Commission, Jacob M. Lewis, Associate General Counsel, and William J. Scher and Rachel Proctor May, Counsel. Richard K. Welch, Deputy Associate General Counsel, entered an appearance.

Before: HENDERSON, MILLETT and WILKINS, Circuit Judges.

Opinion dissenting in part filed by Circuit Judge Henderson.

Wilkins, Circuit Judge:

Environmental Health Trust and several other groups and individuals petition for review of an order of the Federal Communications Commission ("the Commission") terminating a notice of inquiry regarding the adequacy of the Commission's guidelines for exposure to radiofrequency radiation. The notice of inquiry requested comment on whether the Commission should initiate a rulemaking to modify its guidelines. The Commission concluded that no rulemaking was necessary. Petitioners argue that the Commission violated the requirements of the Administrative Procedure Act by failing to respond to significant comments. Petitioners also argue that the National Environmental Policy Act required the Commission to issue an environmental assessment or environmental impact statement regarding its decision to terminate its notice of inquiry.

We grant the petitions in part and remand to the Commission. The Commission failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation unrelated to cancer

.

I.

The Federal Communications Commission regulates various facilities and devices that transmit radio waves and microwaves, including cell phones and facilities for radio, TV, and cell phone communications. 47 U.S.C. §§ 301, 302a(a) ; see EMR Network v. FCC , 391 F.3d 269, 271 (D.C. Cir. 2004). Radio waves and microwaves are forms of electromagnetic energy that are collectively described by the term "radiofrequency" ("RF"). Office of Eng'g & Tech., Fed. Commc'ns Comm'n, OET Bulletin No. 56 , Questions and Answers about Biological Effects and Potential Hazards of Radiofrequency Electromagnetic Fields 1 (4th ed. Aug. 1999). The phenomenon of radio waves and microwaves moving through space is described as "RF radiation." Id.

We often associate the term "radiation" with the term "radioactivity." "Radioactivity," however, refers only to the emission of radiation with enough energy to strip electrons from atoms. Id. at 5. That kind of radiation is called "ionizing radiation." Id. It can produce molecular changes and damage biological tissue and DNA. Id. Fortunately, RF radiation is "non-ionizing," meaning that it is not sufficiently energetic to strip electrons from atoms. Id. It can, however, heat certain kinds of materials, like food in your microwave oven or, at sufficiently high levels, human body tissue. Id. at 6–7. Biological effects that result from the heating of body tissue by RF energy are referred to as "thermal" effects, and are known to be harmful. Id. Exposure to lower levels of RF radiation might also cause other, "non-thermal" biological effects. Id. at 8. Whether it does, and whether such effects are harmful, are subjects of debate. Id.

The National Environmental Policy Act ("NEPA") and its implementing regulations require federal agencies to "establish procedures to account for the environmental effects of [their] proposed actions." Am. Bird Conservancy, Inc. v. FCC , 516 F.3d 1027, 1032 (D.C. Cir. 2008) (per curiam). If an agency proposes a "major Federal action[ ]" that stands to "significantly affect[ ] the quality of the human environment," the agency must prepare an environmental impact statement ("EIS") that examines the adverse environmental effects of the proposed action and potential alternatives. 42 U.S.C. § 4332(C). Not every agency action, however, requires the preparation of a full EIS. Theodore Roosevelt Conservation P'ship v. Salazar , 616 F.3d 497, 503 (D.C. Cir. 2010). If it is unclear whether a proposed action will "significantly affect[ ] the quality of the human environment," 42 U.S.C. § 4332(C), the responsible agency may prepare a more limited environmental assessment ("EA"). See 40 C.F.R. § 1501.5(a). An EA serves to "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact." 40 C.F.R. § 1501.5(c)(1). Additionally, an agency may use "categorical exclusions" to "define categories of actions that normally do not have a significant effect on the human environment and therefore do not require preparation of an environmental impact statement." 40 C.F.R. § 1500.4(a) ; see also 40 C.F.R. § 1501.4(a).

To fulfill its obligations under NEPA, the Commission has promulgated guidelines for human exposure to RF radiation. Cellular Phone Taskforce v. FCC , 205 F.3d 82, 87 (2d Cir. 2000). The guidelines set limits for RF exposure. Before the Commission authorizes the construction or use of any wireless facility or device, the applicant for authorization must determine whether the facility or device is likely to expose people to RF radiation in excess of the limits set by the guidelines. 47 C.F.R. § 1.1307(b). If the answer is yes, the applicant must prepare an EA regarding the likely effects of the Commission's authorization of the facility or device. Id. Depending on the contents of the EA, the Commission may require the preparation of an EIS, and may subject approval of the application to a full vote by the Commission. Office of Eng'g & Tech., Fed. Commc'ns Comm'n, OET Bulletin No. 65 , Evaluating Compliance with FCC Guidelines for Human Exposure to Radiofrequency Electromagnetic Fields 6 (ed. 97-01, Aug. 1997). If the answer is no, the applicant is generally not required to prepare an EA. 47 C.F.R. § 1.1306(a).

The Commission last updated its limits for RF exposure in 1996. Resolution of Notice of Inquiry, Second Report and Order, Notice of Proposed Rulemaking, and Memorandum Opinion and Order , 34 FCC Rcd. 11,687, 11,689–90 (2019) ("2019 Order") ; see also Telecommunications Act of 1996, Pub. L. No. 104-104, § 704(b), 110 Stat. 56, 152 (directing the Commission to "prescribe and make effective rules regarding the environmental effects of radio frequency emissions" within 180 days). The limits are based on standards for RF exposure issued by the American National Standards Institute Committee ("ANSI"), the Institute of Electrical and Electronic Engineers, Inc. ("IEEE"), and the National Council on Radiation Protection and Measurements ("NCRP"). In re Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation , 11 FCC Rcd. 15,123, 15,134–35, 15,146–47 (1996). The limits are designed to protect against "thermal effects" of exposure to RF radiation, but not "non-thermal" effects. EMR Network , 391 F.3d at 271.

In March 2013, the Commission issued a notice of inquiry regarding the adequacy of its 1996 guidelines. See Reassessment of Radiofrequency Exposure Limits & Policies, Notice of Inquiry , 28 FCC Rcd. 3,498 (2013) ("2013 Notice of Inquiry"). The Commission divided its notice of inquiry into five sections. In the first section, it sought comment on the propriety of its exposure limits for RF radiation, particularly as they relate to device use by children. Id. at 3,575–80. In the second section, the Commission sought comment on how to better provide information to consumers and the public about exposure to RF radiation and methods for reducing exposure. Id. at 3,580–82. In the third section, the Commission sought comment on whether it should impose additional precautionary restrictions on devices and facilities that are unlikely to expose people to RF radiation in excess of the limits set by the Commission's guidelines.

Id. at 3,582–85. In the fourth and fifth sections, the Commission sought comment on whether it should change its methods for determining whether devices and facilities comply with the Commission's guidelines. Id. at 3,585–89.

The Commission explained that it was issuing the notice of inquiry in response to changes in the ubiquity of wireless devices and in scientific standards and research since 1996. Id. at 3,570. Specifically, the Commission noted that the IEEE had "published a major revision to its RF exposure standard in 2006." Id. at 3,572. The Commission also noted that the International Commission on Non-Ionizing Radiation Protection had published RF exposure guidelines in 1998 that differed somewhat from the Commission's 1996 guidelines, and was likely to release a revision of those guidelines "in the near future." Id. at 3,573. And the Commission noted that the International Agency for Research on Cancer ("IARC") had classified RF radiation...