NRDC and Tribes Win NEPA Ruling to Fight 5G Neighborhood Small Cell Towers

A Federal judge on August 9, 2019 provided some good news for Native American tribes as well as cities who are faced with pending applications for “small cell” towers. Many legal questions are swirling around, as communities join forces to fight the onslaught of “small cell” towers bringing us the promised and pervasive 5G for faster downloads anywhere. Health and environmental concerns are mounting as reports of 5G injury are appearing in the news. 5G has already appeared in space with tens of thousands more satellites planned. It has long been thought that the Telecommunications Act of 1996 prevents any legal way to fight these cell towers on health or environmental grounds. Some, like the NRDC, are challenging that notion and winning through a Federal policy act known as NEPA.

Update 1/18/20

Federal Court Rules that 5G Small Cells Could Have Major Environmental Impact

A recent court ruling examined the requirement for a Federal review for the placement of 5G small cell towers under the National Environmental Policy Act (NEPA). The court overruled the Federal Communications Commission (FCC) arguments in favor of Native American tribes, giving them and all cities the right to require NEPA analysis (or provide proof of exemption) before cell towers are placed. This decision has given some cities a possible means to at least temporarily deny 5G  “small cell” or macro towers, and maintain local control in their placement, to require either, NEPA review of cell towers (small and large), or categorical exclusion, for both historic preservation as well as impacts on the human environment (which is broadly defined-see below). This decision keeps the current NEPA process in place and annuls (or “vacates”) that portion of the 2018 FCC Ruling streamlining deployment exempting 5G small cells for both historic preservation as well as impacts on the human environment.

Cities Could Use a Lack of NEPA Evaluation to Delay or Deny Cell Tower Antenna Applications

According to some, this is how a city can proceed.  Go here for more information on that which is quoted below.

  1. “Every individual sWTF application must undergo NEPA review. Therefore, every sWTF application in the USA is incomplete until the applicant places in the public record substantial written evidence of a NEPA review. I would ask your local city to write such a letter to each applicant, declaring each application incomplete and the reason for the declaration of incompleteness (no evidence of NEPA review).
  2. A NEPA review is a several step process that starts off with a letter written by the applicant (the Wireless Co. or its agent) stating whether or not the sWTF in the application requires an Environmental Assessment (EA). This is simply a letter that will not be verified by any party: not by the FCC, not by the State and not by the locality. As you can guess, these letters by applicants will simply state that no EA will be needed and may or may not provide any rationale.
  3. Substantial Evidence-At this stage, the applicant’s NEPA letter could go unchallenged and the project could proceed — or — a member of the public could enter substantial evidence in the public record of “controversy on environmental grounds in the local community”; you can work with your city or county to do the following
    • Ask your city to send the applicant’s letter and the evidence provided by the public to the FCC at , so the FCC can open a new FCC case on this WTF. The locality then must wait for the FCC to render its eventual determination of whether or not an EA would be required.
    • If the City is unwilling to email this on your behalf, you can email the evidence to the following email address and open up the FCC case yourself: towercomments@fcc.gov
    • Ask your city to send another letter to the applicant, once again, declaring the application incomplete until the locality receives substantial written evidence of the FCC’s determination of the need for an EA requirement.”

Video: Cell Towers Proliferating “Like Measles”– Many very intelligent and valuable comments are made in this San Francisco Appeal to the SF Department of Public Works for a cell tower installation August 9, 2019. See full video here.

FCC Policy on Cell Tower Categorical Exclusions

The Telecommunications Act Here is the  FCC Policy on NEPA and Cell Tower and Antenna Siting. Regarding siting of cell towers, they state, “FCC environmental rules categorically exclude all actions from detailed environmental review except those associated with the construction of facilities that fall into certain categories.”

These categories include those:

  • In wilderness areas (typically Federal lands)
  • Affecting endangered species
  • In areas of National Register of Historic Preservation, or Indian religious or cultural areas
  • In floodplains

Industry Led American Legislative Exchange Council (ALEC) on “Small Cells”

ALEC, known to promote industry goals, not public or environmental policies, supported the 2018 FCC Ruling on small cells.  ALEC noted that AT&T estimated it spent over $13 million on Tribal fees.  They stated on their in 2018, “As part of the NHPA review process, federal agencies must consult with “any federally-recognized Tribal Nation.” This tribal review process has added both significant costs and time to wireless broadband infrastructure deployment…Companies must spend valuable time and resources complying with federal agency red-tape. If the FCC’s proposal is adopted, companies will be able to build tomorrow’s telecommunications network faster and reallocate regulatory costs to deployment costs.” An ALEC resolution was passed in 2016 to endorse the FCC efforts, A RESOLUTION ENCOURAGING THE SUPPORT OF INFRASTRUCTURE BUILDOUT TO PAVE THE PATHWAY FOR NEXT GENERATION NETWORKSThe NRDC case with Native Tribes preserved their rights to argue denying small cell deployment on grounds of harm to the human environment and historical preservation.

The Village of Western Springs Uses NEPA to State 5G Application Incomplete

The Village of Western Springs, Illinois, in December 2019, challenged Crown Castle on NEPA review in a strongly worded letter, citing several areas where their application was incomplete. This included the areas of insurance and liability compliance, clarification of carriers vs equipment owners and operators, performance and monitoring specifications, and proof that establishes the small cell tower installation meets requirements for NEPA exemption.  Crown Castle later withdrew their application.

Screen Shot 2020-01-12 at 3.13.35 PM

5G in Space May Also Violate NEPA as Night Sky is Obscured

After low orbit Starlink satellites were recently launched to support 5G high speed internet anywhere, astronomers looking to map the stars saw on their photographs  trails of reflected light, instead of constellations.  The nonprofit, International Dark Sky Association, notes this will permanently change our view of the Cosmos, obscuring stars and planets and changing forever our connection to these inspiring visions of the Universe. An article in Scientific American, January 16, 2020, underscores that the launch of these and tens of thousands more planned satellites could be a violation of NEPA, on the grounds of aesthetic, historical and cultural harm to the human environment. The author notes that the FCC grants most space and environmental projects a broad categorical exclusion from NEPA, however, NASA is required to file a NEPA environmental assessment.  The launch of  mega constellations of commercial satellites, has not had proper NEPA review to identify impacts, thus the FCC, it is argued, has good reason to be sued for a violation of NEPA. Unfortunately, there is an effort in Washington to remove or gut NEPA, which would have far reaching effects on the environment and public input into major projects. The NRDC states NEPA, which has been under attack for years, is not a tree-hugging law it is about “democracy, accountability, and government transparency.”  Amazon is joining the space war, announcing plans to launch 3,236 satellites and requesting the FCC to skip even modest review for spectrum usage.

NRDC Attorney Weighs in on Requirement for Federal NEPA Review

The article by NRDC attorney Sharon Buccino quoted later in this blog states, “Local governments can condition approval for new 5G cell construction upon compliance with state and federal requirements for environmental review. While a local government cannot add new requirements for environmental review, it can require proof that the necessary federal review has been done. Given the mounting evidence that the FCC’s radio frequency limits are inadequate, such federal review should include an evaluation of the adequacy of these limits.”

What Does this Mean for Cities with Pending Applications for Small Cell Towers?

This means that any pending application for “small cell” antenna is incomplete unless there is proof of NEPA compliance.  These small cell applications can be denied unless they qualify for an exclusion (see below), similar to what the law was before the FCC Order to streamline deployment of small cells.  Telecommunications companies will need to resubmit the applications once there is compliance. See NRDC Update followed by letter below from FCC regarding “Inquiry re environmental review requirement for telecom permits”

NRDC Fights for Environmental Protection Using NEPA

The Natural Resources Defense Council (NRDC) has been a champion of NEPA since Nixon signed this Act into law act in 1970.  NEPA was the first major environmental law in the United States and is often called the “Magna Carta” of Federal environmental laws. Congress enacted a series of environmental laws after NEPA in the 1970’s, such as the Clean Air Act, the Clean Water Act and  the Toxic Substances Control Act.  Many international laws have been modeled after NEPA as well.

NEPA Requires Environmental Impact Statements 

NEPA requires Federal agencies to assess the effects of major federal actions that would significantly affect the human environment.  NEPA encourages public participation, transparency, and accountability to improve decision making. In NEPA, the human environment is broadly defined to include aesthetic, ecologic, historic, social, cumulative and indirect.   Environmental Assessments (EAs) and Environmental Impact Statements (EISs), are typically required from all Federal agencies with NEPA. The EPA is charged with reviewing the Environmental Impact Statements and to comment on their adequacy and acceptability. The EPA has reviewed reports and prepared policies on a number of issues through the NEPA process. These include air quality, *children’s health, *energy efficiency, *environmental justice, *fishery management, *grazing, *health impact assessment,  pollution prevention.  It could be argued that the next generation of 5G “small cell” telecommunications currently being deployed has not had proper NEPA review.

The NEPA Process

“NEPA applies to all major federal actions, including projects and programs entirely or partly funded, assisted, conducted, regulated, or approved by federal agencies. To ensure that environmental impacts of those actions are considered before final decisions are made, NEPA requires the preparation of an environmental impact statement (EIS) for any major federal action significantly affecting the quality of the human environment. An EIS is a full disclosure document that provides a description of the proposed action, and the existing environment, as well as analysis of the anticipated beneficial and adverse environmental effects of all reasonable alternatives.

As required under CEQ’s regulations, some level of analysis is also required when environmental impacts are uncertain or not significant. Projects for which it is not initially clear whether impacts will be significant require the preparation of an environmental assessment (EA).” (Environmental Laws:Summaries of Major Statutes)

NRDC Declares Victory Over  FCC

The NRDC has been very involved with a recent case, NRDC vs FCC, that tested the rights of Indian Reservations to apply NEPA rules in the placement of cell towers for both environmental impacts and also historic preservation. They testified in court with 19 other Indian tribes to uphold NEPA review for 5G projects.  The NRDC notes that on Aug 9, 2019 “the federal appeals court in D.C. ruled that the FCC illegally eliminated historic-preservation and environmental review—and important opportunities for public participation—for 5G wireless infrastructure projects. Emphasizing the importance of such review, the court held that that the FCC’s attempted explanations for the elimination “did not meet the standard of reasoned decision-making.”

Judge Pillard’s Arguments for the United Keetoowah Band of Cherokee Indians In Oklahoma

Judge Pillard argues, “We grant in part the petitions for review because the Order [FCC] does not justify the Commission’s determination that it was not in the public interest to require review of small cell deployments. In particular, the Commission failed to justify its confidence that small cell deployments pose little to no cognizable religious, cultural, or environmental risk, particularly given the vast number of proposed deployments and the reality that the Order will principally affect small cells that require new construction. The Commission accordingly did not, pursuant to its public interest authority, 47 U.S.C. § 319(d), adequately address possible harms of deregulation and benefits of environmental and historic-preservation review. The Order’s deregulation of small cells is thus arbitrary and capricious.”

“5G Coming to Your Neighborhood? Here’s What You Need to Know.” Article by NRDC Attorney Sharon Buccino

Attorney Sharon Buccino, Senior Director of NRDC’s Public Land Program, has written a concise FAQ document ,5G Coming to Your Neighborhood?

She writes, “The next generation of wireless technology—5G—is dramatically different from previous versions. The 5G technology will enable more data to be carried more quickly, but in many places relies on low waves of the electromagnetic spectrum. As a result, its signal does not travel as far requiring the construction of thousands of new cells to repeat the wireless signals to make 5G work. As companies like AT&T, Verizon and Sprint construct these new small cell wireless facilities in communities across the country, citizens are organizing to ensure this infrastructure is built in a way that protects their health and quality of life. As communities face a flood of applications for this new wireless infrastructure, many want to know what laws and regulations govern 5G. Here’s some information that may help.

Q:  Who is responsible for setting health standards for new cell towers and other wireless infrastructure?

A:  The Federal Communications Commission is responsible for setting health standards for radio frequency emissions.  As long as proposed wireless service facilities comply with the FCC’s radio frequency standards, federal law prohibits state and local governments from regulating them based on “the environmental effects of radio frequency emissions.”  47 USC § 332(c)(7)(iv).

Q:  What are the current FCC standards and are they adequate?

A:  The FCC has set limits for radio frequency emissions, with specific limits for occupational exposure and general population exposure. These limits are found in the FCC’s regulations at 47 C.F.R. § 1.1301.

Unfortunately, the FCC has not updated its guidelines since 1996. Based on 30-year-old studies, today’s FCC limits were designed to protect only against the gross effects of heat or burning of human tissue. Since then, extensive research has raised concerns about other serious health effects. The FCC initiated a review of its limits in 2013, but had not completed it until early this week. On December 4, the FCC issued an order ending its inquiry into the adequacy of its radio frequency exposure limits without changing the limits.

Q:  What can local governments do?

A:  Local governments can condition approval for new 5G cell construction upon compliance with state and federal requirements for environmental review. While a local government cannot add new requirements for environmental review, it can require proof that the necessary federal review has been done. Given the mounting evidence that the FCC’s radio frequency limits are inadequate, such federal review should include an evaluation of the adequacy of these limits.

Q:  What are the requirements for environmental review of new wireless infrastructure?

A:  The National Environmental Policy Act (NEPA) requires an analysis of environmental impacts of major federal actions. Such actions include various types of federal approvals including for pipelines, oil and gas wells, dams and wireless infrastructure.  If the impacts may be significant, the agency must prepare an Environmental Impact Statement. If an agency is unsure whether the impacts may be significant, it can prepare a shorter Environmental Assessment. Based on the Environmental Assessment, the agency will either move forward to prepare an EIS or instead prepare a Finding of No Significant Impact (FONSI). The only way to avoid an EA or an EIS is if the action qualifies for a categorical exclusion. While some new cell construction may qualify for a categorical exclusion (CE), the FCC has identified circumstances where a CE does not apply. For more information on the difference between an EIS and an EA, as well as information on the use and limits of categorical exclusions, see The Citizen’s Guide to the National Environmental Policy Act prepared by the White House Council on Environmental Quality.

Anyone wishing to construct a facility that uses an FCC license must submit an Environmental Assessment to the FCC or certification that the facility is categorically excluded. 47 C.F.R. § 1.1307. An Environmental Assessment is required if the proposed construction:

  • Will be in a wilderness area or wildlife preserve (generally on federal land);
  • Might affect threatened and endangered species or their habitat (Endangered Species Act);
  • Might affect properties included or eligible for inclusion in the National Register of Historic Places or Indian religious and cultural sites;
  • Will be in a flood plain;
  • Will involve “significant changes in surface features” during construction (e.g., wetlands, water diversion, deforestation);
  • Will be taller than 450 feet and so might affect migratory birds;
  • Involves high intensity lighting in a residential area; or
  • Would cause radio frequency emission exposure in excess of FCC-established limits.

A company seeking to build a wireless facility that falls into any of the above categories must obtain a Finding of No Significant Impact before building. “Building without following the requirements at 47 CFR 1.1301-1.1319 can constitute a violation of FCC rules and subject the constructing party to potential enforcement action,” the FCC said in its fact sheet on this topic.

Even when these conditions do not apply, the public can request and the FCC can order environmental review. 

Q:  What was the effect of NRDC’s lawsuit against the FCC regarding the siting of small cell wireless construction?

A:  In March 2018, the FCC issued an order that attempted to eliminate environmental review requirements for small cell wireless facilities. NRDC challenged this order in court along with various other groups including the 19 Indian nations, the National Trust for Historic Preservation and the National Association of Tribal Historic Preservation Officers. While some of the construction might be called “small,” it can include new cell towers.

In August 2019, the U.S. Court of the Appeals for the District of Columbia struck down the FCC’s elimination of review under NEPA and the National Historic Preservation Act. No one appealed the decision to the U.S. Supreme Court. As a result, companies must comply with the environmental review requirements (listed above) that existed prior to the FCC’s order attempting to eliminate them.

As a result, companies wishing to construct new small cell wireless facilities must complete an Environmental Assessment or certify that the proposed facility is categorically excluded from review. Construction cannot proceed without such documentation.

Q:  Where can I find out more about the environmental review requirements for new cell towers and other wireless infrastructure?

A:  The FCC’s Wireless Telecommunications Bureau develops and executes policies and procedures for fast, fair licensing of all wireless services, from fixed microwave links to amateur radio to mobile broadband services. This bureau has developed various materials explaining the environmental reviews required for various types of wireless infrastructure.

Q:  Is NRDC monitoring the effects of 5G on human health or the environment?

A:  No. NRDC’s work is focused on protecting the right of each of us to have a say in government decisions that affect our lives and communities. We are not monitoring the effects of 5G on human health or the environment. Instead, we are working to hold the FCC accountable to its obligations under NEPA to ensure that the environmental effects of the activities it licenses are adequately evaluated and addressed.

Q:  What groups are working on the health impacts of 5G?

A:  Numerous citizen groups have organized across the country to address the impacts of 5G deployment. These groups include:  Napa/Sonoma Neighborhood Association – CA; Our Town, Our Choice – San Francisco, CA; Stop 5G Bellingham – Bellingham, WA; Stop 5G Chicago – Chicago, IL; Safe Tech Forward – Detroit, MI; Pima County 5G Awareness Coalition – Tucson, AZ;  Stop 5G Charlotte – Charlotte, NC;  5G Colorado Action – Denver, CO; ElectromagneticHealth.org – Boulder, CO. More than 100 groups aligned behind a set of principles regarding the implementation of new communications technologies have created a voluntary association, Americans for Responsible Technology.

The Environmental Health Trust collects information and helps bring this information to the attention of federal, state and local decision-makers. EHT carries out research, as well as providing policy and public educational materials.

Physicians for Safe Technology is another useful source of information.

Q:  What can concerned citizens do?

A:  Two immediate options are available to citizens concerned about the health and other environmental impacts of proposed new wireless infrastructure in their communities.

  • First, citizens can contact the FCC’s Wireless Telecommunications Bureau and ask for the status of a company’s environmental compliance. Put your request in writing. Provide information about the specific proposals being considered in your community including the name of the company planning new construction. Ask if the company has provided the FCC with an Environmental Assessment for the proposed construction or certification that the construction qualifies for a categorical exclusion under NEPA.  Explain your concerns about the adequacy of the existing FCC’s radio frequency guidelines.
  • Second, submit comments to the FCC regarding the adequacy of its existing radio frequency guidelines. The FCC maintains an electronic system for accepting comments here. When commenting, make sure to include the number of the proceeding (13-84).  Comments submitted to the FCC can be viewed here. Just this week, the FCC issued an order affirming the adequacy of its guidelines. Following publication in the Federal Register, the public will have 30 days to comment on this action.

    RESOURCES

    For more information regarding what local governments can and cannot do related to construction of new small cell wireless infrastructure:

    Grant Wilson, Policy Report – Small  Cell Facilities in Boulder, CO:  Planning Ahead for an Evolving Legal Regime (June 4, 2019).  This analysis includes examples of what various local governments have done to regulate small cell wireless facilities.

    For a collection of research and articles related to Electromagnetic Radiation Safety:

    Dr. Joel Moskowitz, Electromagnetic Radiation Safety.

 

NRDC Update August 28, 2019

FCC 5G Update
August 28, 2019

In the Courts

 
Court Preserves Environmental and Historic/ Cultural Review for Wireless Infrastructure.
 
United Keetoowah Band of Cherokee Indians in Oklahoma v. FCC, __ F.3d __ (D.C. Cir. Aug. 9, 2019)
 
The Court vacated the FCC’s Order 18-30 eliminating review under the National Environmental Policy Act and the National Historic Preservation Act for wireless infrastructure projects.  Emphasizing the importance of such review, the court held that the FCC’s attempted explanations for the elimination “did not meet the standard of reasoned decision-making.”  Court documents in the case can be found here
 
Five Petitions Filed and Consolidated in U.S. Court of Appeals for D.C. Circuit (18-1135)
Petitioners included NRDC, 16 Indian nations, the National Association of Tribal Historic Preservation Officers and the National Trust for Historic Preservation.
 
What this Means for Concerned Citizens
Wireless infrastructure is subject to environmental and historic review requirements as they existed prior to the FCC’s 2018 action eliminating such review.  The FCC’s applicable requirements are found at 40 C.F.R. §§ 1.1301-1.1309.  These regulations identify circumstances such as the presence of property eligible for inclusion on the National Register of Historic Places or an Indian religious or cultural site which require a company seeking to construct a wireless facility to complete and file an Environmental Assessment (EA) with the FCC which the Commission posts for public comment.  A company cannot begin building before it has received a Finding of No Significant Impact (FONSI) from the FCC. 
 
In addition, citizens may continue to submit information to the FCC addressing the adequacy of its health and environmental guidelines.  Two existing dockets are relevant to this inquiry:  WTB 17-79 (In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment) and ET 13-84 (In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment).  The FCC’s electronic filing system is here.  Enter the docket number and search.  You can then file a comment.
 
Historic/ cultural review is governed by a Programmatic Agreement identifying specific roles and responsibilities.  The applicable agreement can be found here.  See 47 C.F.R. App. B to Part 1 for text of the 2016 amendment.
 
Latest Action: D.C. Circuit vacates FCC order.
The Court’s opinion and briefs from the case can be found here
 
Fight over Local Government Authority to Regulate 5G Continues
 
City of Huntington Beach v. FCC, (9th Cir.) – Docket Nos. 19-70123, 19-70124, 19-70125, 19-70144, 19-70146, 19-70326, 19-70339, 19-70341, 19-70344.
 
Numerous petitions filed challenging FCC Order 18-133 related to local government control authority.  Cases being heard together in the U.S. Court of Appeals for the Ninth Circuit (San Francisco).
 
Petitioners include:  Montgomery County (MD), as well as the cities of Los Angeles, Seattle, Portland, Las Vegas, Albuquerque and New York.
 
Latest Action: Reply briefs due September 18, 2019
 

In Congress

 
116th (Current) Congress
 
HR 530 – Eshoo (D-CA)
Preserves local authority in siting of wireless infrastructure
 
HR 292 – Curtis (R-UT)
Provides for delegation of NEPA review to states and tribes for rights-of-way across public lands
 
S. 1699 – Thune (R-SD) – STREAMLINE Small Cell Deployment Act
Limits on local control;  deemed granted if local government does not act to deny within prescribed time
 
 
Senate Commerce, Science and Transportation
Sen. Blumenthal (D-CT) raises concerns about the lack of scientific research and data to support existing FCC health guidelines at February 7, 2019hearing.
 
House Energy & Commerce Investigation

The House Energy and Commerce committee has asked the Federal Communications Commission to produce communications records between FCC employees and network operators related to the commission’s recent order preempting local control and pricing of infrastructure access, alleging that FCC representatives may have colluded with industry to issue and defend in court Commission’s action limiting local control over 5G deployment.

“It has come to our attention that certain individuals at the FCC may have urged companies to challenge the order the commission adopted in order to game the judicial lottery procedure and intimated the agency would look unfavorably toward entities that were not helpful,” wrote committee Chairman Frank Pallone, Jr. (D-New Jersey) and Mike Doyle (D-Pennsylvania), chairman of the subcommittee on communications and technology, in a letter to FCC Chairman Ajit Pai. “If true, it would be inappropriate for the FCC to leverage its power as a regulator to influence regulated companies to further its agenda in seeking a more friendly court.”

ENACTED INTO LAW

 
Consolidated Appropriations Act, March 23, 2018 (Pub. Law 115-141)
Sec 606 amends Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 (47 U.S.C. 1455) 
  • Provides for grant of right-of-way on federal property for communications infrastructure
  • Through Application for easement through Administrator of General Services
  • Explicit preservation of NHPA and NEPA
 
MOBILE NOW – “Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless.”  Sen. Thune (R-SD)
Passed as part of Middle Class Tax Relief and Job Creation Act of 2012 (Pub. Law 112-96)

Information from this source

From: Phoebe S.
Sent: Monday, November 18, 2019 1:54 PM
To: FCC Commissioner Erica Rosenberg

Subject: Inquiry re environmental review requirement for telecom permits

Hello Ms. Rosenberg:

Is it true that, despite the FCC Order last year, environmental review is still required in many cases before Telecom equipment permits can be approved in our town, Berkeley, Ca?

We believe that to be the case due to the Aug 9 appellate court decision in the lawsuit UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA, INDIVIDUALLY AND ON BEHALF OF ALL OTHER NATIVE AMERICAN INDIAN TRIBES AND TRIBAL ORGANIZATIONS, ET AL., PETITIONERS v. FCC and the USA. (The NRDC was an additional petitioner or intervenor in the case. NRDC staff advised us, sent us the FCC NEPA fact sheet, and suggested we contact you.)

The D.C. Circuit decision in United Keetoowah Band of Cherokee Indians v. FCC vacated those portions of the Commission’s order that exempted certain small wireless facilities from federal environmental and historic preservation review. See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Second Report & Order, FCC 18-30, (released Mar. 30, 2018). In vacating portions of the Second Report and Order, the court determined that small wireless facilities are not exempt and must therefore be reviewed under the National Environmental Policy Act and National Historic Preservation Act.

From the FCC’s NEPA fact sheet, we gather that NEPA review (Environmental Assessment) is required for wireless telecom applications in our town, at least in cases where the proposed equipment:

  • Might affect properties included or eligible for inclusion in the National Register of Historic Places (NHPA)
  • Will be in a flood plain
  • Would cause RF emissions exposure in excess of FCC-established limits

If the project — including antenna structures, equipment cabinets, fencing, roads, power and fiber connections, and their operation and maintenance — falls into any of these categories, applicant must file an EA, which the FCC posts for public comment. Applicant must get a FONSI (“FONSI Defined_xxx”) before building.

In addition to answering our first question at the beginning of this letter, please “reply all” with answers to these questions re the FCC NEPA Factsheet:

_________________

From: Paul D’Ari

Senior Legal Counsel
Competition and Infrastructure Policy Division
Wireless Telecommunications Bureau
Federal Communications Commission
Office: 202-418-1550

Date: December 11, 2019 at 7:27 AM

Subject: Inquiry re environmental review requirement for telecom permits
As we discussed in our conversation yesterday, I am writing to clarify that the answers to the questions provided to Ms. Phoebe S below reflect my own views and do not necessarily represent the views of the Federal Communications Commission.

Thank you,

Paul D’Ari

Q-1. How does the telecom company applicant know that an EA is required for a particular application? Does the City need to let them know it is required? Can residents require it?

Answer from Paul D’Ari, Senior Legal Counsel for FCC:

Under the Commission’s procedures implementing NEPA, if an action may significantly affect the environment, applicants must conduct an environmental assessment (EA) to help the Commission determine whether “the proposal will have a significant environmental impact upon the quality of the human environment.” The FCC has delegated aspects of its NEPA review to licensees and applicants; NEPA and EAs are a federal requirement, although local or state permitting may require its own environmental review process.

To determine whether an EA is required, the FCC licensee or applicant must complete an initial environmental and historic preservation review (“the EA checklist”). This review includes an analysis of whether its proposed facilities fall into any of the categories that trigger an EA. As part of this review, licensees and applicants must follow distinct procedures to determine whether the proposed facilities will, for example, have an adverse effect on historic properties under NHPA will affect listed species under the Endangered Species Act, or will affect wetland resources.

While neither the city nor a member of the general public can make a determination that an EA is necessary, the Commission can review concerns raised by interested parties and decide whether to require an EA.

If your concern is about a proposed antenna structure or physical modification of an existing antenna structure that you allege may have a significant impact on the quality of the human environment, or about the Commission’s environmental notification process (see 47 CFR § 17.4(c)) in regard to an existing or proposed antenna structure, check if there is a related Antenna Structure Registration (ASR) application currently on environmental notice on the Commission’s website: https://wireless2.fcc.gov/ASRManager/service/nationalNoticeReport.faces. If there is a current application, you must submit your Request for Further Environmental Review by selecting “ASR Environmental Notice” at this link: https://wireless2.fcc.gov/UlsEntry/pleadings/pleadingsType.jsp.

If you cannot find an ASR application currently on environmental notification for the antenna structure that you allege may have a significant impact on the quality of the human environment, then you should e-mail your comment to towercomments@fcc.gov and provide the following information:

  • Your name, email address, and phone number
  • Detailed tower/facility location (street address; coordinates; and/or nearest intersection, city, county and state)
  • Construction status (constructed, under construction, or planned)
  • Detailed description:
  • Describe the facility type (e.g., tower, antenna, collocation on a structure), and include as much additional information as possible (e.g., height and volume).
  • How does the tower/facility adversely affect a historic property (if applicable)?
  • What is the name/address of the historic property?
  • How does the tower/facility adversely affect a Native American religious or culturally significant site (if applicable)?
  • What is the nature of the adverse effects on the environment (if applicable). For example:
  • Wetlands/Floodplains/Change in surface features
  • Migratory birds
  • High intensity lights located in residential areas
  • Endangered species/Critical habitat for plants or animals
  • Other environmental resources

Provide as much detail as possible concerning how each applicable subject matter is being affected by the tower/facility.

Tribal Communications Notification System (TCNS) submission number, if known.

Q-2. Re: “Would cause RF emmissions exposure in excess of FCC-established limits”, do the FCC limits include cumulative effect? So it’s not just the proposed equipment’s emissions but counting nearby antennas too?

Answer from Paul D’Ari, Senior Legal Counsel for FCC:

When there are multiple communications facilities at a given site, all significant effects on the RF environment must be considered, not just those RF emissions associated with one specific facility. If at any time the RF emissions from multiple facilities exceed the Commission’s guidelines in an area accessible to the public, it is the shared responsibility of all licensees whose facilities produce significant emissions (i.e., if their power density levels exceed 5% of the power density exposure limit), to bring the area into compliance. 47 CFR § 1.1307(b)(3).

Q-3. Re: “The public can request and the agency can order additional environmental review on issues beyond the checklist. The agency can ask for mitigation to reduce impacts.”, which additional “issues beyond the checklist” may the public use to request environmental review for wireless telecom applications in our town? To which agency would we make those requests? Instead of to the FCC, would be make the request to our Public Works Dept that approves the permits?

Answer from Paul D’Ari, Senior Legal Counsel for FCC:

“If a person has information that a proposed communications facility will have a significant environmental effect that is not included on the checklist, that person should submit his/her comment in the applicable manner discussed in my answer to Question 1, above.”

Q-4. Does this apply retroactively?

Answer from Paul D’Ari, Senior Legal Counsel for FCC:

“Building without following the requirements at 47 CFR 1.1301-1.1319 can constitute a violation of FCC rules and subject the constructing party to potential enforcement action; issuance of a license does not authorize building unless environmental requirements have been met.

If any person has information indicating that a communications facility was constructed without complying with the NEPA rules, that person should notify the FCC’s Wireless Telecommunications Bureau (“WTB”). WTB will then determine how to handle the matter and, depending upon the circumstances, may refer the matter to the Enforcement Bureau.

Q-5. Who would pursue enforcement action? The FCC or the City? How can citizens provoke enforcement action?

Answer from Paul D’Ari, Senior Legal Counsel for FCC:

“If the matter involves an FCC licensee or applicant, an interested person should contact the FCC. Depending upon the circumstances, a person may also contact state and local government offices with jurisdiction over the matter as some of these offices may share jurisdiction with the federal government or have independent authority.”

We’d also appreciate reading your insight or other related comments.

Sincerely,

Phoebe S

 

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