Law 360 DC Circ. Picks Apart FCC Over 5G Wireless Safety Review

“A federal appeals panel in Washington voiced skepticism that the Federal Communications Commission had adequately considered dangerous health effects when it established guidelines for radiation emission from cell towers and wireless devices…”

Environmental Health Trust, the environmental health organization led by Dr. Devra Davis, a member of the team awarded the Nobel Peace Prize as a lead author for the Intergovernmental Panel on Climate Change scientists, will hold a press conference following the Monday morning oral arguments at the US Court of Appeals for the District of Columbia in the landmark case Environmental Health Trust (EHT) et al. v. the Federal Communications Commission (FCC). Our case is presented jointly with Children’s Health Defense (CHD).
EHT is represented by Edward B. Myers who intervened in the successful case of the Natural Resources Defense Council (NRDC) and several Native American Tribes against the FCC when the Court upheld the relevance of the National Environmental Policy Act (NEPA) in FCC’s 5G proceedings.

CHD is represented by Robert F. Kennedy Jr., Chairman of Children’s Health Defense who has championed numerous cases involving industrial pollution -including Monsanto Roundup weedkiller cancer litigation and major water contamination cases– and by Scott McCullough, a seasoned telecom attorney, former Assistant Texas Attorney General, who represented the Irregulators in Irregulators vs the FCC. Mr. McCullough presented all of the Petitioners’ joint argument in oral argument. The three-judge panel in the US Court of Appeals for the District of Columbia that presides over the case includes the Honorable Karen Henderson, Patricia Millett and Robert Wilkins.

The Petitioners contend the FCC ignored the extensive evidence submitted to the agency showing that non-thermal levels of pulsed and modulated RFR emitted by wireless technology are harmful to humans, wildlife and the environment, and its order failed to provide a record of a reasoned decision making. Therefore, the Petitioners claim the FCC has violated the Administrative Procedure Act (APA) and its decision is capricious, arbitrary and not evidence-based. In addition, the Petitioners argue that the FCC violated NEPA because the agency did not consider the environmental impacts of its decision. FCC also violated the 1996 Telecommunications Act (TCA) in failing to consider the impact of its decision on public health and safety.

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The FCC ignored numerous submissions detailing injuries and rapidly growing illnesses from radiofrequency radiation, and ignored calls such as those from the cities of Boston and Philadelphia to address the injury. Petitioners argued that the inadequate FCC guidelines are used to deny accommodation in violation of the Americans with Disability Act. The Petitioners filed 11,000 pages of evidence – 447 exhibits in 27 Volumes- in support of their claims. Environmental Health Trust researchers filed 60 of the 447 exhibits and scientific studies published by EHT experts are considered crucial in the case as they focus on cancer and impacts to children.

“Environmental Health Trust has worked for over a decade to protect the public from radiofrequency radiation, testified to Congress and published critical research on why children are more vulnerable,” said Devra Davis PhD, MPH, President and founder of Environmental Health Trust. “Over the years, the FCC has ignored our extensive submissions that clearly document harm. As the legacies of lead, asbestos and tobacco teach us, this issue deserves immediate attention from our federal government in order to protect our children’s health now and throughout their lives.”
The NRDC filed an amicus brief in the Petitioners’ case on the need for environmental review signed onto by Mayors and Councilmembers from Maryland, Massachusetts, Michigan, California and Hawaii. Attorney Joe Sandri filed an Amicus Brief with a statement by Dr. Linda Birnbaum, former Director of the National Institute of Environmental Health Sciences of the National Institutes of Health and former Director of the National Toxicology Program (NTP) who detailed the findings of the NTP and concluded, “Overall, the NTP findings demonstrate the potential for RFR to cause cancer in humans.” The Building Biology Institute and Kleiber family filed Briefs on injuries sustained from exposures allowed by FCC exposure guidelines.”

Edward B. Myers is an attorney practicing in the United States of America. For over 40 years, Mr. Myers has represented government, trade associations and private clients in complex regulatory matters involving energy, telecommunications and the environment. In 2018, Mr. Myers worked with the Natural Resources Defense Council in a successful challenge to an order of the Federal Communications Commission (FCC) that had sought to eliminate any environmental review of 5G cell towers and transmitters. Mr. Myers presently is representing the Environmental Health Trust and other parties in the appeal of a FCC decision not to revise safety standards for radiofrequency emissions from cell phones and cell phone towers and equipment. Mr. Myers is a graduate of Gettysburg College and the University of Notre Dame Law School.

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Founder and President of Environmental Health Trust

Dr. Davis was part of the team of Intergovernmental Panel on Climate Change scientists awarded the Nobel Peace Prize in 2007 with the Honorable Al Gore, as she was lead author on research assessing climate mitigation policies. She was Founding Director, Center for Environmental Oncology at the University of Pittsburgh Cancer Institute and Founding Director of the Board on Environmental Studies and Toxicology of the U.S. National Research Council, National Academy of Sciences. Dr. Davis was Senior Advisor to the Assistant Secretary for Health in the Department of Health and Human Services and appointed to the US Chemical Safety and Hazard Investigation Board by President Clinton. She served on the Board of Scientific Counselors of the US National Toxicology Program and various advisory committees to the US Centers for Disease Control and Prevention. She has also authored more than 200 peer reviewed publications in books and journals. Read Dr. Davis’ full bio here.

Executive Director of Environmental Health Trust and Petitioner in EHT et al. v. FCC

Ms. Scarato is lead analyst of the CDC FOIA that found an industry consultant was hired to provide content for numerous Centers for Disease Control and Prevention web pages on non ionizing radiation. She maintains the EHT database on international actions—the most comprehensive collection of information on policy actions regarding cell phones and wireless. Ms. Scarato has published on how to reduce electromagnetic radiation in buildings. As a clinical psychotherapist, her research interests include not only the behavioral and cognitive effects from wireless radiation exposures but also the social emotional effects of technology overuse.

https://ehtrust.org/5g-wireless-harms-lawsuit-against-the-fcc-eht-et-al-v-fcc/ Source: Environmental Health Trust