NEPA, The NRDC and 5G Neighborhood Cell Towers, Smombie Gate | 5G | EMF

Many legal questions are swirling around as communities join forces to fight the onslaught of “small cell” towers bringing us the promised pervasive 5G. Health and environmental concerns are paramount and it has long been thought that the Telecommunications Act of 1996 prevents any legal way to fight these on health or environmental grounds.  A recent ruling on the National Environmental Policy Act (NEPA) has given some cities and citizens hope that they will be able to maintain some local control in the placement of small cell towers. NEPA requires Federal agencies to assess the effects of their actions on the quality of the environment, and that includes the human environment. Environmental Assessments (EAs) and Environmental Impact Statements (EISs), are typically required. from all Federal agencies with NEPA.

NRDC Goes to Court to Fight for the Environment

The NRDC has been a champion of NEPA since Nixon signed this Act into law act in 1970.  NEPA was the first major environmental law in the United States and is often called the “Magna Carta” of Federal environmental laws. International laws have been modeled after NEPA.

The NRDC has been very involved with a recent case that tested the rights of Indian Reservations to apply NEPA rules in the placement of cell towers for both environmental impacts and also historic preservation. They testified in court with 19 other Indian tribes to preserve cell tower siting rights.

“5G Coming to Your Neighborhood? Here’s What You Need to Know.”

Attorney Sharon Buccino, Senior Director of NRDC’s Public Land Program, has written a concise FAQ document, 5G Coming to Your Neighborhood?

She writes”, The next generation of wireless technology—5G—is dramatically different from previous versions. The 5G technology will enable more data to be carried more quickly, but in many places relies on low waves of the electromagnetic spectrum. As a result, its signal does not travel as far requiring the construction of thousands of new cells to repeat the wireless signals to make 5G work. As companies like AT&T, Verizon and Sprint construct these new small cell wireless facilities in communities across the country, citizens are organizing to ensure this infrastructure is built in a way that protects their health and quality of life. As communities face a flood of applications for this new wireless infrastructure, many want to know what laws and regulations govern 5G. Here’s some information that may help.

Q:  Who is responsible for setting health standards for new cell towers and other wireless infrastructure?

A:  The Federal Communications Commission is responsible for setting health standards for radio frequency emissions.  As long as proposed wireless service facilities comply with the FCC’s radio frequency standards, federal law prohibits state and local governments from regulating them based on “the environmental effects of radio frequency emissions.”  47 USC § 332(c)(7)(iv).

Q:  What are the current FCC standards and are they adequate?

A:  The FCC has set limits for radio frequency emissions, with specific limits for occupational exposure and general population exposure. These limits are found in the FCC’s regulations at 47 C.F.R. § 1.1301.

Unfortunately, the FCC has not updated its guidelines since 1996. Based on 30-year-old studies, today’s FCC limits were designed to protect only against the gross effects of heat or burning of human tissue. Since then, extensive research has raised concerns about other serious health effects. The FCC initiated a review of its limits in 2013, but had not completed it until early this week. On December 4, the FCC issued an order ending its inquiry into the adequacy of its radio frequency exposure limits without changing the limits.

Q:  What can local governments do?

A:  Local governments can condition approval for new 5G cell construction upon compliance with state and federal requirements for environmental review. While a local government cannot add new requirements for environmental review, it can require proof that the necessary federal review has been done. Given the mounting evidence that the FCC’s radio frequency limits are inadequate, such federal review should include an evaluation of the adequacy of these limits.

Q:  What are the requirements for environmental review of new wireless infrastructure?

A:  The National Environmental Policy Act (NEPA) requires an analysis of environmental impacts of major federal actions. Such actions include various types of federal approvals including for pipelines, oil and gas wells, dams and wireless infrastructure.  If the impacts may be significant, the agency must prepare an Environmental Impact Statement. If an agency is unsure whether the impacts may be significant, it can prepare a shorter Environmental Assessment. Based on the Environmental Assessment, the agency will either move forward to prepare an EIS or instead prepare a Finding of No Significant Impact (FONSI). The only way to avoid an EA or an EIS is if the action qualifies for a categorical exclusion. While some new cell construction may qualify for a categorical exclusion (CE), the FCC has identified circumstances where a CE does not apply. For more information on the difference between an EIS and an EA, as well as information on the use and limits of categorical exclusions, see The Citizen’s Guide to the National Environmental Policy Act prepared by the White House Council on Environmental Quality.

Anyone wishing to construct a facility that uses an FCC license must submit an Environmental Assessment to the FCC or certification that the facility is categorically excluded. 47 C.F.R. § 1.1307. An Environmental Assessment is required if the proposed construction:

  • Will be in a wilderness area or wildlife preserve (generally on federal land);
  • Might affect threatened and endangered species or their habitat (Endangered Species Act);
  • Might affect properties included or eligible for inclusion in the National Register of Historic Places or Indian religious and cultural sites;
  • Will be in a flood plain;
  • Will involve “significant changes in surface features” during construction (e.g., wetlands, water diversion, deforestation);
  • Will be taller than 450 feet and so might affect migratory birds;
  • Involves high intensity lighting in a residential area; or
  • Would cause radio frequency emission exposure in excess of FCC-established limits.
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A company seeking to build a wireless facility that falls into any of the above categories must obtain a Finding of No Significant Impact beforebuilding. “Building without following the requirements at 47 CFR 1.1301-1.1319 can constitute a violation of FCC rules and subject the constructing party to potential enforcement action,” the FCC said in its fact sheet on this topic.

Even when these conditions do not apply, the public can request and the FCC can order environmental review. 

Q:  What was the effect of NRDC’s lawsuit against the FCC regarding the siting of small cell wireless construction?

A:  In March 2018, the FCC issued an order that attempted to eliminate environmental review requirements for small cell wireless facilities. NRDC challenged this order in court along with various other groups including the 19 Indian nations, the National Trust for Historic Preservation and the National Association of Tribal Historic Preservation Officers. While some of the construction might be called “small,” it can include new cell towers.

In August 2019, the U.S. Court of the Appeals for the District of Columbia struck down the FCC’s elimination of review under NEPA and the National Historic Preservation Act. No one appealed the decision to the U.S. Supreme Court. As a result, companies must comply with the environmental review requirements (listed above) that existed prior to the FCC’s order attempting to eliminate them.

As a result, companies wishing to construct new small cell wireless facilities must complete an Environmental Assessment or certify that the proposed facility is categorically excluded from review. Construction cannot proceed without such documentation.

Q:  Where can I find out more about the environmental review requirements for new cell towers and other wireless infrastructure?

A:  The FCC’s Wireless Telecommunications Bureau develops and executes policies and procedures for fast, fair licensing of all wireless services, from fixed microwave links to amateur radio to mobile broadband services. This bureau has developed various materials explaining the environmental reviews required for various types of wireless infrastructure.

Q:  Is NRDC monitoring the effects of 5G on human health or the environment?

A:  No. NRDC’s work is focused on protecting the right of each of us to have a say in government decisions that affect our lives and communities. We are not monitoring the effects of 5G on human health or the environment. Instead, we are working to hold the FCC accountable to its obligations under NEPA to ensure that the environmental effects of the activities it licenses are adequately evaluated and addressed.

Q:  What groups are working on the health impacts of 5G?

A:  Numerous citizen groups have organized across the country to address the impacts of 5G deployment. These groups include:  Napa/Sonoma Neighborhood Association – CA; Our Town, Our Choice – San Francisco, CA; Stop 5G Bellingham – Bellingham, WA; Stop 5G Chicago – Chicago, IL; Safe Tech Forward – Detroit, MI; Pima County 5G Awareness Coalition – Tucson, AZ;  Stop 5G Charlotte – Charlotte, NC;  5G Colorado Action – Denver, CO; ElectromagneticHealth.org – Boulder, CO. More than 100 groups aligned behind a set of principles regarding the implementation of new communications technologies have created a voluntary association, Americans for Responsible Technology.

The Environmental Health Trust collects information and helps bring this information to the attention of federal, state and local decision-makers. EHT carries out research, as well as providing policy and public educational materials.

Physicians for Safe Technology is another useful source of information.

Q:  What can concerned citizens do?

A:  Two immediate options are available to citizens concerned about the health and other environmental impacts of proposed new wireless infrastructure in their communities.

  • First, citizens can contact the FCC’s Wireless Telecommunications Bureau and ask for the status of a company’s environmental compliance. Put your request in writing. Provide information about the specific proposals being considered in your community including the name of the company planning new construction. Ask if the company has provided the FCC with an Environmental Assessment for the proposed construction or certification that the construction qualifies for a categorical exclusion under NEPA.  Explain your concerns about the adequacy of the existing FCC’s radio frequency guidelines.
  • Second, submit comments to the FCC regarding the adequacy of its existing radio frequency guidelines. The FCC maintains an electronic system for accepting comments here. When commenting, make sure to include the number of the proceeding (13-84).  Comments submitted to the FCC can be viewed here. Just this week, the FCC issued an order affirming the adequacy of its guidelines. Following publication in the Federal Register, the public will have 30 days to comment on this action.

    RESOURCES

    For more information regarding what local governments can and cannot do related to construction of new small cell wireless infrastructure:

    Grant Wilson, Policy Report – Small  Cell Facilities in Boulder, CO:  Planning Ahead for an Evolving Legal Regime (June 4, 2019).  This analysis includes examples of what various local governments have done to regulate small cell wireless facilities.

    For a collection of research and articles related to Electromagnetic Radiation Safety:

    Dr. Joel Moskowitz, Electromagnetic Radiation Safety.

MORE INFO HERE  Boston Massachusetts Blasts the FCC On Cell Phone 5G Cell Tower Safety – Environmental Health Trust

The FCC Responds to NEPA Questions

Inquiry Re: Environmental review requirement for telecom permits

In a related letter from the FCC regarding NEPA other questions are answered.

From: Paul D’Ari <[email protected]>
Date: December 6, 2019 at 7:17:10 AM
Subject: Inquiry re environmental review requirement for telecom permitsIn response to your request of November 18, we respond below to your questions regarding the FCC’s environmental review process.  Please let us know if you have any additional questions.

Thank you,

Paul D’Ari, Senior Legal Counsel, Competition and Infrastructure Policy Division, Wireless Telecommunications Bureau, Federal Communications Commission

Office: 202-418-1550

From: xxxxxx
Sent: Monday, November 18, 2019 1:54 PM
To: Erica Rosenberg <[email protected]>

Subject: Inquiry re environmental review requirement for telecom permits

Is it true that, despite the FCC Order last year, environmental review is still required in many cases before telecom equipment permits can be approved in our town, Berkeley, Ca?  We believe that to be the case due to the Aug 9 appellate court decision in the lawsuit UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA, INDIVIDUALLY AND ON BEHALF OF ALL OTHER NATIVE AMERICAN INDIAN TRIBES AND TRIBAL ORGANIZATIONS, ET AL., PETITIONERS v. FCC and the USA.  (The NRDC was an additional petitioner or intervenor in the case.  NRDC staff advised us, sent us the FCC NEPA fact sheet, and suggested we contact you.)

The D.C. Circuit decision in United Keetoowah Band of Cherokee Indians v. FCC vacated those portions of the Commission’s order that exempted certain small wireless facilities from federal environmental and historic preservation review.  See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Second Report & Order, FCC 18-30, (released Mar. 30, 2018).   In vacating portions of the Second Report and Order, the court determined that small wireless facilities are not exempt and must therefore be  reviewed under the National Environmental Policy Act and National Historic Preservation Act.

From the FCC’s NEPA fact sheet, we gather that NEPA review (Environmental Assessment) is required for wireless telecom applications in our town, at least in cases where the proposed equipment:

Might affect properties included or eligible for inclusion in the National Register of Historic Places (NHPA)

Will be in a flood plain

Would cause RF emissions exposure in excess of FCC-established limits

If the project—including antenna structures, equipment cabinets, fencing, roads, power and fiber connections, and their operation and maintenance—falls into any of these categories, applicant must file an EA, which the FCC posts for public comment. Applicant must get a FONSI before building.

In addition to answering our first question at the beginning of this letter, please “reply all” with answers to these questions re the FCC NEPA Factsheet:

1.  How does the telecom company applicant know that an EA is required for a particular application?  Does the City need to let them know it is required?  Can residents require it?

Under the Commission’s procedures implementing NEPA, if an action may significantly affect the environment, applicants must conduct an environmental assessment (EA) to help the Commission determine whether “the proposal will have a significant environmental impact upon the quality of the human environment.” The FCC has delegated aspects of its NEPA review to licensees and applicants; NEPA and EAs are a federal requirement, although local or state permitting may require its own environmental review process.

To determine whether an EA is required, the FCC licensee or applicant must complete an initial environmental and historic preservation review (“the EA checklist”).  This review includes an analysis of whether its proposed facilities fall into any of the categories that trigger an EA.   As part of this review, licensees and applicants must follow distinct procedures to determine whether the proposed facilities will, for example, have an adverse effect on historic properties under NHPA will affect listed species under the Endangered Species Act, or will affect wetland resources.

While neither the city nor a member of the general public can make a determination that an EA is necessary, the Commission can review concerns raised by interested parties and decide whether to require an EA.

If your concern is about a proposed antenna structure or physical modification of an existing antenna structure that you allege may have a significant impact on the quality of the human environment, or about the Commission’s environmental notification process (see 47 CFR § 17.4(c)) in regard to an existing or proposed antenna structure, check if there is a related Antenna Structure Registration (ASR) application currently on environmental notice on the Commission’s website:  https://wireless2.fcc.gov/ASRManager/service/nationalNoticeReport.faces.  If there is a current application, you must submit your Request for Further Environmental Review by selecting “ASR Environmental Notice” at this link: https://wireless2.fcc.gov/UlsEntry/pleadings/pleadingsType.jsp.

If you cannot find an ASR application currently on environmental notification for the antenna structure that you allege may have a significant impact on the quality of the human environment, then you should e-mail your comment to [email protected] and provide the following information:

  • Your name, email address, and phone number
  • Detailed tower/facility location (street address; coordinates; and/or nearest intersection, city, county and state)
  • Construction status (constructed, under construction, or planned)
  • Detailed description:
    • Describe the facility type (e.g., tower, antenna, collocation on a structure), and include as much additional information as possible (e.g., height and volume).
    • How does the tower/facility adversely affect a historic property (if applicable)?
      • What is the name/address of the historic property?
    • How does the tower/facility adversely affect a Native American religious or culturally significant site (if applicable)?
    • What is the nature of the adverse effects on the environment (if applicable). For example:
      • Wetlands/Floodplains/Change in surface features
      • Wilderness area or wildlife preserve
      • Migratory birds
      • High intensity lights located in residential areas
      • Endangered species/Critical habitat for plants or animals
      • Other environmental resources

Provide as much detail as possible concerning how each applicable subject matter is being affected by the tower/facility.

  • Tribal Communications Notification System (TCNS) submission number, if known.

2.  “Would cause RF emissions exposure in excess of FCC-established limits”. Do the FCC limits include cumulative effect?  So it’s not just the proposed equipment’s emissions but counting nearby antennas too?

When there are multiple communications facilities at a given site, all significant effects on the RF environment must be considered, not just those RF emissions associated with one specific facility.  If at any time the RF emissions from multiple facilities exceed the Commission’s guidelines in an area accessible to the public, it is the shared responsibility of all licensees whose facilities produce significant emissions (i.e., if their power density levels exceed 5% of the power density exposure limit), to bring the area into compliance.  47 CFR § 1.1307(b)(3).

3.  “The public can request and the agency can order additional environmental review on issues beyond the checklist.  The agency can ask for mitigation to reduce impacts.” Which additional “issues beyond the checklist” may the public use to request ER for wireless telecom applications in our town?  To which agency would we make those requests?  Instead of to the FCC, would be make the request to our Public Works Dept that approves the permits?

If a person has information that a proposed communications facility will have a significant environmental effect that is not included on the checklist, that person should submit its comment in the applicable manner discussed in my answer to Question 1 above.

4.  Does this apply retroactively? 

“Building without following the requirements at 47 CFR 1.1301-1.1319 can constitute a violation of FCC rules and subject the constructing party to potential enforcement action; issuance of a license does not authorize building unless environmental requirements have been met.”

If any person has information indicating that a communications facility was constructed without complying with the NEPA rules, that person should notify WTB.  WTB will determine how to handle the matter and, depending upon the circumstances, may refer the matter to the Enforcement Bureau.

5. Who would pursue enforcement action?  The FCC or the City?  How can citizens provoke enforcement action?

If the matter involves an FCC licensee or applicant, an interested person should contact the FCC.  Depending upon the circumstances, a person may also contact state and local government offices with jurisdiction over the matter as some of these offices may share jurisdiction with the federal government or have independent authority.

MORE INFO HERE  Councillor aims to block 5G roll-out in the city

A California group has written about how cities can maintain authority over cell tower placement, citing a win for the City and County of San Francisco over T-Mobile in court The judgement allow cities in California to deny a cell tower if it “incommodes the public”.

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See Also

NEPA, The NRDC and 5G Neighborhood Cell Towers, Smombie Gate | 5G | EMF

Physicians for Safe Technology