Environmental Health Trust v. Federal Communications Commission, No. 20-1025 (D.C. Cir. 2021)
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The FCC regulates facilities and devices that transmit radio waves and microwaves, including cell phones and facilities for radio, TV, and cell phone communications, 47 U.S.C. 302a(a). Radio waves and microwaves are electromagnetic energy, “radiofrequency” that move through space, as “RF radiation.” RF radiation at sufficiently high levels can heat human body tissue, resulting in “thermal” effects. Exposure to lower levels of RF radiation might also cause other biological effects.
The National Environmental Policy Act (NEPA) requires federal agencies to account for the environmental effects of their proposed actions; a “major Federal action” requires an environmental impact statement, 42 U.S.C. 4332(C). If it is unclear whether a proposed action will “significantly affect[] the quality of the human environment,” the agency may prepare a limited environmental assessment. An agency may also use “categorical exclusions.” Pursuant to NEPA, the FCC has guidelines for human exposure to RF radiation, last updated in 1996. In 2013, the FCC issued a notice of inquiry regarding the adequacy of its guidelines and sought comments on five issues in response to changes in the ubiquity of wireless devices and in scientific standards and research. In 2019, the FCC issued a final order, declining to undertake any of the changes contemplated in the notice of inquiry.
The D.C. Circuit remanded. The FCC failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation unrelated to cancer.
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