Environmental Health Trust, et al., vs. Federal Communications Commission, and United States of America, in the United States Court of Appeal for the District of Columbia Circuit, USCA Case No. 20-1025, opinion issued on August 13, 2021.
Environmental Health Trust and others, (collectively “EHT”), petitioned the court for judicial review of an order made by the Federal Communications Commission (“FCC”) to terminate a notice of inquiry regarding the adequacy of the FCC guidelines for exposure to radiofrequency (“RF”) radiation. The notice of inquiry, issued by the FCC in March 2013, requested comment on whether the FCC should initiate rulemaking to modify the current guidelines which were last updated in 1996. In December 2019, the FCC concluded that no rulemaking was necessary and terminated the notice of inquiry.
EHT and the other petitioners argued the decision to terminate the notice of inquiry was capricious and arbitrary because the FCC (1) failed to acknowledge evidence which indicated potential harmful effects caused by exposure to RF radiation levels at or below the 1996 guidelines; (2) failed to respond to comments concerning environmental harm caused by RF radiation; and (3) failed to discuss the implications of long-term exposure to RF radiation or the implications of technological developments that have occurred since 1996 such as the proliferation of wireless devices, WIFI, and “5G” technology.
The court began its analysis by recognizing that the FCC order was entitled to a high degree of deference because it was simply FCC’s refusal to initiate rulemaking and because the issues involved were highly technical determinations the type of which courts are ill-equipped to second-guess. However, the court noted that the FCC needed to offer more than mere conclusory statements to justify its decision to terminate the notice of inquiry. At a minimum, the FCC was required to provide assurance that it considered the relevant factors, and “provide analysis that follows a discernable path to which the court may defer.” In this regard, the court found that the FCC order missed the mark – specifically insofar as it failed to address claims that exposure to RF radiation at levels below the FCC’s current limits may cause negative health effects unrelated to cancer. As a result, the court found the FCC order arbitrary and capricious. The court went on to find the FCC’s failure to provide a reasoned explanation for its decision also undermined their conclusions regarding “the adequacy of its testing procedures, particularly as they relate to children, and its conclusions regarding the implications of long-term exposure to RF radiation, exposure to RF pulsation or modulation, and the implications of technological developments that have occurred since 1996, all of which depend on the premise that exposure to RF radiation at levels below its current limits causes no negative health effects.” As a result, the court found each of those conclusions arbitrary and capricious as well. Finally, the court found the FCC’s order arbitrary and capricious because it failed to respond to comments concerning environmental harm caused by RF radiation.
In summary, the court reversed the FCC order terminating the notice of inquiry and remanded the matter back to the FCC with instructions to (1) provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to RF radiation unrelated to cancer; (2) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines; (3) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the FCC last updated its guidelines; and (4) address the impacts of RF radiation on the environment. The court took care to note “we take no position in the scientific debate regarding the health and environmental effects of RF radiation – we merely conclude that the Commission’s cursory analysis of material record evidence was insufficient as a matter of law.”
Implications of the Court’s Opinion:
As a result of the court’s decision, the notice of inquiry issued by the FCC in 2013, requesting comment on whether the Commission should initiate rulemaking to modify its current guidelines, remains open – at least until the FCC provides a “reasoned explanation” for its decision to terminate the notice of inquiry. Practically, it is important to note that the court’s ruling does not change or effect in any way the current FCC guidelines regarding RF radiation exposure limits – those guidelines, last modified in 1996, remain in full force and effect. Accordingly, this new case does not provide the City of Thousand Oaks with any discretion to deviate from its current procedures when reviewing and processing applications for wireless facilities within the City.