• Endangered Species Act - Environmental
• Endangered Species Act - Land Use
• NEPA and State NEPA - Environmental
• NEPA and State NEPA - Land Use

FCC Ordered to Implement More Stringent NEPA and ESA Review in Communications Towers Approval Procedures

Beveridge & Diamond, P.C., February 21, 2008

On February 19, the D.C. Circuit Court of Appeals vacated and remanded portions of an FCC ruling on a petition filed by environmental groups who argued that the FCC’s procedures for approving new communications towers failed to properly implement the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”) in regards to new towers’ effects on birds.  American Bird Conservancy, Inc. v. FCC, No. 06-1165 (D.C. Cir. Feb. 19, 2008). The ruling will affect communications towers along the Gulf Coast between Port Isabel, Texas, and Tampa Bay, Florida.

Although FCC approval of proposed communications towers is generally categorically excluded from the requirement to prepare an Environmental Impact Statement (“EIS”) or an Environmental Assessment (“EA”), regulations allow parties to petition the agency if they believe a particular action will have a significant environmental effect. The FCC rejected the petition because it found that petitioners had presented inconclusive evidence regarding the towers’ impacts on birds. The D.C. Circuit rejected this reasoning, finding that NEPA requires that the agency predict whether a proposed action “may” have a significant environmental effect -- the petitioner is not required to prove that such effects have already occurred. Conflicting studies and differing views as to the environmental effects of the towers were sufficient to require the FCC to prepare, at a minimum, an EA before determining that it does not have any obligation to prepare a more complete EIS.

Petitioners also argued that the ESA required the FCC to formally consult with the U.S. Fish and Wildlife Service because the communications towers were likely to jeopardize endangered or threatened bird species. The FCC rejected petitioners’ request because there was no evidence of any “synergies” among towers that would cause a cumulative effect likely to jeopardize any species. The D.C. Circuit vacated and remanded this portion of the FCC Order, finding that lack of “synergies” was an inadequate explanation to deny the petition and that the FCC had failed to describe what showing is necessary to require formal consultation. 

Finally, the court rejected the FCC’s practice of providing notice of tower applications only after they had been approved and ordered the FCC to determine how it will provide notice of pending tower applications to assure meaningful public involvement in the NEPA process.

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For more information, contact Fred Wagner (202) 789-6041 or Leah Dundon (615) 428-0643.