FCC Must Assess Towers’ Impact on Migratory Birds, Bird Conservancy Tells Appeals Court

American Bird Conservancy is appealing four elements of the FCC order: the dismissal, the FCC’s deferral to a planned rulemaking on the subject, the FCC’s refusal to give public notice of all Gulf Coast antenna structure registration applications, and the FCC’s refusal to consult with the U.S. Fish and Wildlife Service about the region’s threatened and endangered species.

The FCC dismissed the petition because the conservancy “failed to provide sufficient evidence” of the towers’ adverse environmental impact, it said in a brief. But by refusing to do an EIS, the FCC violated FCC rules and the National Environmental Policy Act (NEPA), said conservancy attorney Jennifer Chavez. FCC rules require a petition show a tower “may or will” have significant effect, and it’s up to the FCC to do further analysis, she said. FCC attorney Daniel Armstrong disagreed; the burden of proof is on the petitioner, he said.

Current categorical exclusion rules are outdated and violate the Migratory Bird Treaty Act, Chavez said. Categorical exclusion is an FCC determination that a tower doesn’t pose an adverse environmental risk. The FCC’s categorical exclusion rules don’t violate NEPA, Armstrong said. FCC checked with the Council on Environmental Quality (CEQ) when it made its categorical exclusion rules to ensure they complied with the statute, and CEQ said they did, he said. An FCC rulemaking is the place to change rules and take towers out of exclusion, and the FCC has one planned for the subject, he said. The FCC staff has received and is reviewing 140 to 150 comments, he said. No timetable has been set for the recommendation, he said.

Chavez termed the FCC’s deferment to a planned rulemaking “arbitrary.” In 2000, the D.C. circuit court’s Humane Society v. Glickman ruling subjected the FCC to the Migratory Bird Treaty Act, she said. Citing a planned rulemaking is an FCC stalling tactic to “avoid NEPA,” she said. An EIS petition shouldn’t be “held up” by the rulemaking process since it’s a separate issue, she said. A rulemaking is also insufficient because “the entire thing is a request for comments,” she said. The conservancy has submitted comments on the tower problems, she said, but a rulemaking “falls short of what NEPA requires.”

Judges Garland and Kavanaugh seemed most critical of the FCC’s refusal to give public notice for applications to categorically exclude towers. Petitioners are not asking for personalized notices, just a Web site posting, Garland said. And Kavanaugh asked Armstrong if he thought it “hollow” to put burden of proof on a petitioner without giving them advanced notice of applications. Armstrong responded to both that CEQ doesn’t require the FCC to post notices. If someone wants to get information about a tower, they should consult local zoning, not the FCC, he said. But Chavez said doing so slows down the process. FCC notices would foster the NEPA process by giving greater opportunity to oppose tower exclusions, she said.

Armstrong defended the FCC’s refusal to consult the Fish and Wildlife Service. It’s “fair to say” the Fish and Wildlife Service supports changes to the FCC’s approach “in the migratory birds and rulemaking context,” Armstrong said. But there is no need to consult FWS about a tower’s environmental impact if a qualified biologist asserts that it does not, he said. Chavez discounted the excuse. The FWS’s opinion shouldn’t be ignored since it has long wanted the FCC to conduct EISs of towers, she said, citing a 1999 letter from the group’s director. “That should be enough,” she said.