State AGs Slam FCC Proposals on Revisions to NEPA and Historic Preservation Rules

Eliminating NEPA controls has been a priority for President Donald Trump, and the FCC is expected to move quickly to adopt rules despite concerns (see 2508150050). Industry largely supports the proposals in an NPRM adopted 3-0 last month (see 2508070052). Critics said the FCC’s revisions wrongly conflate the two laws, which require different rules.

The attorneys general of California, New York and other states, as well as the attorney for Harris County, Texas, said the FCC shouldn’t rush to final rules. “Given the open-ended nature of much of the content of the NPRM, the public lacks notice regarding the specific regulatory changes the Commission proposes to adopt.” Whatever the FCC does next, it “must ensure that it complies with the notice requirements of the Administrative Procedure Act,” they said.

The proposed rules were largely based on a petition from CTIA, the states noted. “Because the Commission should have dismissed or denied that petition as procedurally deficient (or at least addressed comments in the petition record raising the procedural defects), the NPRM is itself infirm to the extent its adoption is premised on the Commission’s granting of the petition.”

They also questioned the NPRM’s reliance on Trump's Executive Order 14154 on “Unleashing American Energy.” That order doesn’t apply to the FCC, making any references “gratuitous,” the states said. Also signing the filing were AGs from Washington, Massachusetts, Arizona, Connecticut, Delaware, Illinois, Maine, Maryland, Michigan, Minnesota, Oregon, Rhode Island, Vermont and the District of Columbia.

The National Association of Tribal Historic Preservation Officers said the questions posed in the NPRM “are rooted in a fundamental misunderstanding of NEPA and the NHPA.” The FCC appears to believe “that its obligations [under] Section 106 of the NHPA are somehow tied to its obligations under NEPA,” the tribal officers said. “As the FCC is surely aware, NEPA and the NHPA are separate statutes that impose separate legal obligations on the FCC, and which are triggered by separate factors and legal standards.”

The National Trust for Historic Preservation said the proposed NEPA revisions could “diminish the scope and effectiveness of environmental reviews in ways that could harm historic and cultural resources.” By “limiting the types of actions that require environmental assessments or environmental impact statements,” the FCC could “overlook significant threats to historic sites, particularly those affected by indirect or cumulative impacts.”

Recent NEPA changes don’t “pertain” to the NHPA “at all,” argued the National Congress of American Indians. This “conflation” of a major federal action under NEPA and an “undertaking” under NHPA “originates in CTIA’s petition for proposed rulemaking,” the group said. The FCC's “discretion over what constitutes [a major federal action] simply does not extend to discretion over what constitutes an undertaking under NHPA.” The group also questioned the NPRM’s reliance on Trump's executive order. “The NHPA preempts and controls the Commission’s obligation to conduct historic preservation reviews far beyond what an executive order may direct this agency to do regarding NEPA reviews.”

The Advisory Council on Historic Preservation said the FCC must ensure that its final rule “appropriately interprets” NEPA and NHPA. “While both NEPA and Section 106 [of the NHPA] are procedural environmental laws, they differ in terms of what projects may undergo such reviews and the scope of review for those projects,” the council said. “NEPA requires consideration of ‘major federal actions,’ while Section 106 ‘undertakings’ do not have such a qualifier.”

Industry Support

The proposed rule changes were widely backed by industry groups.

CTIA called on the FCC to quickly determine that wireless deployments that don’t require antenna structure registration aren’t major federal actions under NEPA or “undertakings” under the NHPA. The NPRM “outlines” recent bipartisan changes to NEPA, “which underscore that environmental reviews are only required for the subset of projects that a Federal agency determines are subject to substantial control by that agency, and that review is not required for non-Federal actions with no or minimal Federal funding or involvement,” CTIA said. By acting now, the commission “can ensure that its processes comply with and advance Federal statutes, court precedent, and broader Administration priorities while providing for efficient and effective reviews where necessary.”

The Competitive Carriers Association said that for its members, many of which are small and rural, environmental regulations “can make the difference between deploying new service and leaving communities unserved.” The commission should “narrow the scope” of projects that are subject to NEPA review, “provide increased clarity and predictability wherever possible, and streamline review processes to reduce unnecessary costs and delays.”

“Modernizing outdated agency NEPA procedures while maintaining environmental protections of underlying action statutes and implementing reforms will reduce delays and uncertainties,” the U.S. Chamber of Commerce said. By revising the rules, “the administration is paving the way for timely agency project and lease approvals that support local job creation, economic revitalization, and community growth.”

The Wireless Infrastructure Association said that, if approved, “the changes proposed in the NPRM will take an important step for the Commission in removing outdated and unnecessary rules.” They would also “further spur” wireless deployments, “including densification, that will help deliver 5G -- and soon 6G -- services to all Americans.”