NRDC v. Federal Communications Commission
In March 2018, the Federal Communications Commission (FCC) amended its rules so that deployment decisions regarding 5G wireless infrastructure projects would no longer require public participation and environmental review under the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). By excluding local voices and discouraging collaboration, the FCC dealt a blow to the mechanisms of democratic decision making—and acted unlawfully.
Deployment of infrastructure necessary to provide 5G wireless networks affects public lands across the country, as well as various indigenous nations and local governments. The plain language of NEPA and NHPA applies these laws to the FCC licensing at issue: The commission can adjust the amount of review in cases where a licensed activity would have minimal impacts, but it cannot avoid review altogether.
Two months after the FCC filed its order, NRDC challenged it in court. We have been joined by various American Indian tribes across the country, as well as the National Association of Tribal Historic Preservation Officers and the National Trust for Historic Preservation.
On August 9, 2019, in a victory for NRDC and our allies, 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.”