United States District Court of Appeals District of Columbia Circuit Court judgment in favor of environmental health groups and petitioners finds FCC violated the Administrative Procedure Act and failed to respond to comments on environmental harm.
Washington DC August 13, 2021
Today, the United States District Court of Appeals District of Columbia Circuit ruled in the historic case EHT et al. v. the FCC that the December, 2019, decision by the Federal Communications Commission (FCC) to retain 1996 safety limits for human exposure to wireless radiation was “arbitrary and capricious.” The Court held that the FCC failed to respond to record evidence that exposure to RF radiation at levels below the Commission’s current limits may cause negative health effects unrelated to cancer.” Further, the agency demonstrated, “a complete failure to respond to comments concerning environmental harm caused by RF radiation.”
“We are delighted that the court upheld the rule of law and found that the FCC must provide a reasoned record of review for the thousands of pages submitted by the Environmental Health Trust and many other expert authorities in this precedent setting case. No agency is above the law. The American people are well served, “ stated Dr. Devra Davis, President of the Environmental Health Trust. “Where do we go from here? We need a Congressional hearing into how this agency operated above the law to ensure it never happens again. Committing to 5G merely ensures commercial success in selling new devices and cannot bridge the digital divide where many disadvantaged groups lack access to basic technologies. As we detail in our letter to President Biden, the priority for infrastructure should be for wired rather than wireless internet connections. The US needs a federal action plan on the issue of wireless radiation that should be informed by the latest science showing that current levels of radiation can damage human health and the environment.”
Edward Meyers, attorney for Environmental Health Trust, lead petitioner in the case EHT et al., v the FCC stated, “The Court granted the petitions for review because, contrary to the requirements of the Administrative Procedure Act, the Commission had failed to provide a reasoned explanation for its assertion that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation.”
Dr. Jerome Paulson, former American Academy of Pediatrics Environmental Health Council Chair now Professor Emeritus of Pediatrics, and Environmental and Occupational Health at George Washington University School of Medicine and Health Sciences and Milken Institute School of Public Health stated, “I am very pleased to see that the US Court of Appeals for the District of Columbia Circuit has ruled that the FCC has ignored decades of studies about the potential health harms of cell phone radiation and must adequately review this material before making a decision about new regulations of cell phones. It is very important that the Court ruled that the FCC must address the impacts of radio frequency radiation on the health of children amassed since 1996.”
In overturning the FCC determination for its lack of reasoned decision-making, the court stated: “While imitation may be the highest form of flattery, it does not meet even the low threshold of reasoned analysis required by the APA under the deferential standard of review that governs here. One agency’s unexplained adoption of an unreasoned analysis just compounds rather than vitiates the analytical void. Said another way, two wrongs do not make a right.”
“The court further pointed to how the FCC failed to adequate respond to approximately 200 comments on the record by people regarding injury from electromagnetic radiation sickness and the fact that petitioners pointed to “multiple studies and reports, which were published after 1996 and are in the administrative record, purporting to show that RF radiation at levels below the Commission’s current limits causes negative health effects unrelated to cancer, such as reproductive problems and neurological problems that span from effects on memory to motor abilities.”
The landmark case centers around the FCC decision not to update their 1996 exposure limits for the wireless radiation from cell phones, cell towers and wireless devices. Environmental Health Trust experts have long argued that the FCC’s outdated limits place Americans everywhere at risk, especially in the era of 5G.
In response to the courts historic ruling, Environmental Health Trust and petitioners released the below statements. More about the case and harms caused by wireless radiation exposure can be found below.
Devra Davis PhD, MPH, President Environmental Health Trust, author of Disconnect–the truth about cellphone radiation
“If cell phones were a drug they would have been banned years ago. 5G would never have been allowed to market. An ever mounting body of published studies – ignored by the FCC- clearly indicates that exposure to wireless radiation can lead to numerous health effects, especially for children. Research indicates wireless radiation increases cancer risk, damages memory, alters brain development, impacts reproductive health and much more. Furthermore, the way the FCC measures our daily exposure to cell phone and cell tower radiation is fatally flawed and provides a false sense of security.”
“Environmental Health Trust submitted hundreds of pages of scientific evidence to the FCC over the last several years documenting the scientific data showing harm, the need for health agencies to create safety limits that protect against biological effects and the urgency for infrastructure policy that prioritizes wired rather wireless communications to reduce public exposure. While there is a lot of work left to do, today’s ruling is an important step in protecting people against the harms caused by wireless radiation exposure. Unfortunately, the telecom industry is now pushing millions of new 5G wireless antennas into neighborhoods and billions of new wireless devices, putting more in harms way every day. While we celebrate today’s victory, we must look forward. It’s due time for a Congressional hearing.”
Theodora Scarato MSW, Executive Director of Environmental Health Trust and petitioner in the case.
“This is a win for our children, our future and our environment. The court’s decision should be a wake up call worldwide. There was no premarket safety testing for cell phones or wireless networks before they came on the market decades ago. As the court points out in the ruling, silence from federal health and environmental agencies does ‘not constitute a reasoned explanation for the Commission’s decision.’ This ruling highlights how there has been no scientific review of the full body of scientific research to ensure people and the environment are protected. No federal agency has reviewed science indicating impacts to the brain, reproduction, trees, or wildlife- not the Food and Drug Administration, not the Centers for Disease Control, not the National Cancer Institute not the Environmental Protection Agency. For decades, each of these agencies has downplayed the health effects of wireless radiation on their public websites. A telecom financed scientist drafted webpages to be put online by our federal government. This should never have happened. When people try and stop a cell tower from being built in front of their homes, they are told by their elected decision that they cannot consider the issue of health effects due to the Telecommunications Act of 1996. This has to stop. We need a thorough investigation of how our country ended up in this situation and a federal action plan to ensure it never happens again. It is imperative that our federal agencies immediately act to protect human health and environment.
Statement by Cindy Franklin of Consumers for Safer Phones, a organization that was a petitioner in the case.
“The FCC must now admit that their 25 year old exposure guidelines are bogus. Our federal regulatory agencies are mandated to protect people and the environment from the known biological harm from exposure to microwave radio frequency radiation. This ruling shows they have failed to do their jobs. The wireless industry can no longer hide behind the FCC’s so called “safe” exposure guidelines.
Statement of Liz Barris of The Peoples Initiative.org
“This day is a long time coming! So many people are suffering from the effects of wireless radiation and SO MANY are not even connecting their symptoms, illnesses, cancers and even deaths to the radiation that is causing it because they trust and believe their government! The FCC failed to respond to ANY of the documentation submitted to them that people are being injured by ALL types of wireless radiation, from cell phones and WI-FI to smart meters and cell towers. We need limits backed by science that do not harm people or our environment and thus far, the science shows, the only safe wireless radiation is no wireless radiation. Hard wired internet connections with plug in portals everywhere for cell phones and WIiFI may be our best bet.”
Statement of Ellen Marks, President of California Brain Tumor Association
“We are thrilled that the court recognizes the substantial body of evidence that has been amassed. Too many have suffered for far too long.
About the case
In EHT et al. v. the FCC, the Environmental Health Trust (EHT) along with 13 petitioners argued that the FCC ignored thousands of pages of research and expert testimony showing harmful effects from wireless radiofrequency radiation to humans, wildlife and the environment when it decided that the 1996 wireless radiation limits did not need to be updated with a full health and safety review. The Petitioners claimed the FCC violated the Administrative Procedure Act because its decision was capricious, arbitrary and not evidence-based; violated National Environmental Policy Act because the Agency did not consider the environmental impacts of its decision, especially in the era of 5G; and, violated the 1996 Telecommunications Act because it failed to consider the impact of its decision on public health and safety.
Petitioners further claim the FCC ignored numerous submissions detailing injuries from radiofrequency radiation and ignored testimony on the record showing how the FCC guidelines were used to deny accommodation for injured people in violation of the Americans with Disability Act. Petitioners filed 11,000 pages of evidence in support of their claims.
Environmental Health Trust filed their case in the District of Columbia Court of Appeals with Consumers for Safe Cell Phones, Elizabeth Barris and Theodora Scarato MSW with attorney Edward B. Myers. EHT’s case was then consolidated to a separate case filed by Children’s Health Defense, Michelle Hertz, Petra Broken, Dr. David Carpenter, Dr. Toril Jelter, Dr. Paul Dart, Dr. Ann Lee, Virginia Farver, Jennifer Baran and Paul Stanley M.Ed. Children’s Health Defense was represented by attorney Scott McCullough and Robert Kennedy Jr. Evidentiary briefs were jointly filed.
Oral arguments were held January 25, 2021 to a three-judge panel of the District of Columbia Court of Appeals including Hons. Karen Henderson, Patricia Millett and Robert Wilkins.
Environmental Health Trust attorney Edward B. Myers intervened in the successful case of the Natural Resources Defense Council (NRDC) and several Native American Tribes against the FCC. In this earlier case the court upheld the relevance of the National Environmental Policy Act (NEPA). The NRDC filed an amicus brief in the EHT et al., v FCC Petitioners’ case as well.
The FCC is represented in-house by William J. Scher, Ashley Stocks Boizelle, Jacob M. Lewis and Richard Kiser Welch.
Final Court Ruling
Briefs and Evidence
Amicus Briefs
Docket Links
About Environmental Health Trust
The Environmental Health Trust, a scientific nonprofit, has worked on wireless radiation and health for a decade. EHT scientists have published numerous studies on the harmful health effects of electromagnetic radiation and organized national and international scientific conferences on the issue.
EHT co-founder and president Devra Davis PhD, MPH was a founding director of the Board on Environmental Studies and Toxicology of the U.S. National Research Council, National Academy of Sciences (NAS) and has worked on numerous environmental exposures, from chemicals to lead to air pollution. Among the NAS reports she directed were those advising that tobacco smoke be removed from airplanes and the environments of young children. She was also a Clinton appointee to the Chemical Safety And Hazard Investigation Board,former Senior Advisor to the Assistant Secretary for Health in the U.S. Department of Health and Human Services, anda member of the team of Intergovernmental Panel on Climate Change scientists awarded the Nobel Peace Prize with the Honorable Al Gore in 2007.
EHT Co- founder Dr. Ronald Herberman founded the University of Pittsburgh Cancer Institute (UPCI) and helped discover natural killer cells capable of killing cancer. In 2008, Herberman, then UPCI Director, issued the first recommendations by a US medical institution to his faculty and staff that they reduce cell phone radiation in a UPCI memo featured in the New York Times article “Researcher warns of brain cancer risk from cell phones”.
Herberman’s 2008 Memo was included in the first of 27 drafts of the California Department of Public Health cell phone guidance finally issued in 2017 after legal action by Dr. Joel Moskowitz of University of California Berkeley forced the release.
Dr. Davis testified at the 2009 US Senate Subcommittee Hearing “Health Effects of Cell Phone Use” on, not only the science, but also the industry attacks on scientists finding harmful effects at non thermal levels. She also detailed to senators the fine print manufacturers warnings in cell phones to keep the phone at a distance from the body. (Full hearing transcript and CSPAN video) Dr. Ronald Herman testified in the 2008 Congressional Hearing ”Tumors and Cell Phone Use: What the Science Says” on the scientific evidence indicating children are more vulnerable to cell phone radiation and receive higher exposures proportionate to adults. (Full hearing transcript and CSPAN video)
History of US Safety Limits on Wireless Radiation
Contrary to our assumptions of However, in 1996, just as the EPA was set to release their Phase 1 of safety limits, the EPA’s RFR efforts were defunded, halting all EPA research. That year the U.S. Federal Communications Commission (FCC) adopted RFR exposure limits based largely on limits developed by industry/military connected groups (ANSI/IEEE C95.1-1992 and NCRP’s 1986 Report).
https://ehtrust.org/in-historic-decision-federal-court-finds-fcc-failed-to-explain-why-it-ignored-scientific-evidence-showing-harm-from-wireless-radiation/ Source: Environmental Health Trust