9 F.4th 893
D.C. Cir.2021Background
- The FCC last set RF (radiofrequency) exposure limits in 1996 (thermal‑effects‑based) and opened a 2013 Notice of Inquiry (NOI) to reassess those limits in light of new science and tech developments (ubiquity of wireless devices, 5G, IEEE/ICNIRP updates, IARC classification).
- The NOI solicited comment on exposure limits (including effects on children), public information, precautionary restrictions, and testing/compliance procedures for devices.
- The administrative record included numerous studies and thousands of comments alleging non‑thermal health effects (neurological, reproductive, sleep, memory) and environmental harms (Department of the Interior letter on birds), plus two 2018 rodent cancer studies (NTP, Ramazzini) and the IARC monograph.
- In December 2019 the FCC terminated the NOI and declined to initiate rulemaking, relying largely on FDA statements and the absence of substantive recommendations from other health agencies.
- Petitioners sought review under the APA and NEPA. The D.C. Circuit granted the petitions in part and remanded to the FCC to supply a reasoned explanation about non‑cancer health and environmental concerns, while rejecting other challenges (including the NEPA claim).
Issues
| Issue | Petitioners' Argument | FCC's Argument | Held |
|---|---|---|---|
| Whether FCC’s termination of the NOI was arbitrary and capricious for failing to address record evidence that RF below current limits causes non‑cancer harms | Petitioners: FCC ignored substantial studies and comments showing non‑thermal adverse effects and therefore failed to confront a fundamental premise of its limits | FCC: Relied on FDA conclusions and the silence/no substantive recommendations from other expert agencies; many filings were unscientific or not actionable | Court: Remanded — FCC’s reliance on conclusory FDA statements and agency silence did not supply a reasoned explanation; must address non‑cancer health evidence, child impacts, testing methods, long‑term exposure, modulation/pulsation, tech changes (e.g., 5G) |
| Whether FCC adequately addressed cancer evidence (IARC, NTP, Ramazzini) | Petitioners: FCC failed to consider IARC classification and new animal studies; those studies could have changed carcinogenicity assessment | FCC: Pointed to methodological limits of rodent studies (whole‑body, exposure levels/duration, older technologies) and to ICNIRP/FDA evaluations | Court: Held FCC’s analysis of cancer evidence was adequate — FCC reasonably explained why the animal studies did not compel rulemaking |
| Whether NEPA required an EA or EIS when FCC closed the NOI | Petitioners: Termination required supplemental NEPA review given new science and potential environmental harms | FCC: No ongoing ‘‘major Federal action’’; prior NEPA compliance for adopted rules; NOI alone is contemplative | Court: Held no EA/EIS required — NEPA attaches to proposals for major federal action and prior NEPA satisfied; NOI contemplation alone did not trigger new NEPA duties |
| Whether various legal/constitutional claims (ADA, property, burden of proof, remedies) are reviewable | Petitioners: FCC should have considered constitutional, statutory, and remedial claims | FCC: Many of these issues were not raised in a reconsideration petition; thus Commission had no opportunity to pass | Court: Held claims forfeited/not properly presented to the FCC; court will not consider them on direct review |
Key Cases Cited
- Am. Horse Prot. Ass’n v. Lyng, 812 F.2d 1 (D.C. Cir. 1987) (agency’s conclusory dismissal of study insufficient to justify refusal to initiate rulemaking)
- Am. Radio Relay League v. FCC, 524 F.3d 227 (D.C. Cir. 2008) (agency must provide a discernable path of reasoning and address significant challenges to fundamental premises)
- EMR Network v. FCC, 391 F.3d 269 (D.C. Cir. 2004) (agency may credit outside experts but not abdicate responsibility; deferral appropriate where other agencies see no compelling case for action)
- Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d Cir. 2000) (agency entitled to rely on other agencies to monitor scientific developments; not required to consult them before declining change)
- MCI WorldCom, Inc. v. FCC, 209 F.3d 760 (D.C. Cir. 2000) (agency need not respond to every comment, only those that challenge a fundamental premise)
- SEC v. Chenery Corp., 318 U.S. 80 (1943) (court will not supply an agency’s post hoc rationalization)
- Kleppe v. Sierra Club, 427 U.S. 390 (1976) (mere contemplation/study does not trigger NEPA impact statement duties)
- W. Org. of Res. Councils v. Zinke, 892 F.3d 1234 (9th Cir. 2018) (no supplemental NEPA required absent ongoing major federal action)
- Marsh v. Oregon Nat’l Res. Council, 490 U.S. 360 (1989) (standards for supplemental NEPA review)
- City of Tacoma v. FERC, 460 F.3d 53 (D.C. Cir. 2006) (action agency must not blindly adopt conclusions of consultant agencies)