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 were 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.”
UPDATE! On August 5, 2020, NRDC filed an amicus brief in a separate case—brought by the Environmental Health Trust and Children’s Health Defense—laying out the FCC’s legal obligations to both inform and protect the public from the environmental effects of radio frequency radiation. Despite growing evidence of potential harm to the environment and human health, the FCC had recently terminated its inquiry into the adequacy of its radio frequency (RF) exposure standards for wireless technology, without making any changes to limits set in 1996.
On August 13, 2021, the U.S. Court of Appeals for the D.C. Circuit found the FCC’s action terminating its inquiry into the adequacy of its RF health standards unlawful. The court found that the FCC “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.” As a result, the FCC cannot rely on the adequacy of the standards to avoid review of potential environmental harm from the use of wireless technology that the Commission has licensed.