Petition for Writ of Certiorari — Santa Fe Alliance for Public Health and Safety, et al., Petitioners v. City of Santa Fe, New Mexico, et al.

Supreme Court briefOct 25, 2021

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No. _________

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------SANTA FE ALLIANCE FOR PUBLIC HEALTH

AND SAFETY, ARTHUR FIRSTENBERG,

and MONIKA STEINHOFF,

Petitioners,

CITY OF SANTA FE; HECTOR BALDERAS,

Attorney General of New Mexico; and

the UNITED STATES OF AMERICA,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------RICHARD I. TARGOW

Post Office Box 1143

Sebastopol, CA 95473

(707) 829-5190

rtargow@sonic.net

THERESA KRAFT

Counsel of Record

822 Little John Drive

Salisbury, MD 21804

(603) 568-2464

tkraft@theresakraft.com

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

Radio frequency (“RF”) radiation has been increasing

exponentially with the proliferation of cell towers and

antennas. Although such radiation has injured and

displaced millions, no claim for injury by RF radiation

has been permitted to go to trial in the United States

since 1996, and no zoning board or city council has

been permitted to take testimony about such radiation

into account when considering applications for such

facilities. A Congressional prohibition against consideration of “environmental effects” has been persistently

understood as a prohibition against consideration of

“health effects.” Petitioners’ desperate situations go

unremedied and they suffer further injuries and losses

with no haven in sight but this Court.

Without any avenue of redress for their injuries

and property losses, Petitioners requested a declaratory judgment that the preemption with respect to the

“environmental effects of radio frequency emissions” in

the Telecommunications Act of 1996 (“TCA”), 47 U.S.C.

§ 332(c)(7)(B)(iv), and laws enacted by their City and

their State in deference to that preemption, violate due

process, free speech, the right to petition, the right of

access to courts, and constitute a taking without just

compensation, or in the alternative a judgment that

“environmental effects” does not mean “health effects”

in 47 U.S.C. § 332(c)(7)(B)(iv). The questions presented

for review are:

1. Whether the preemption by 47 U.S.C.

§ 332(c)(7)(B)(iv) of any State remedy for injury by

QUESTIONS PRESENTED—Continued

telecommunications facilities without providing a

substitute federal remedy violates the constitutional

right of access to courts and conflicts with a century of

Supreme Court jurisprudence.

2. Whether, consistent with its ordinary meaning, as well as its meaning in every other federal

statute in which it occurs, the term “environment

effects” in 47 U.S.C. § 332(c)(7)(B)(iv) should be

interpreted to mean “effects on the environment” and

not “effects on human health,” thereby restoring to all

Americans their fundamental rights to life, liberty, and

property and adhering to the principle that statutes

should be construed to avoid rendering them

unconstitutional.

iii

CORPORATE DISCLOSURE STATEMENT

The Santa Fe Alliance for Public Health and

Safety is not a corporation and has no parent

companies or subsidiaries.

RELATED PROCEEDINGS

Santa Fe Alliance for Public Health and Safety v. City

of Santa Fe, No. 1:18-cv-01209, U.S. District Court for

the District of New Mexico. Judgment entered May 6,

2020.

Santa Fe Alliance for Public Health and Safety v. City

of Santa Fe, No. 20-2066, U.S. Court of Appeals for the

Tenth Circuit. Judgment entered March 30, 2021.

Rehearing denied May 27, 2021.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

CORPORATE DISCLOSURE STATEMENT ......

iii

RELATED PROCEEDINGS ................................

iii

TABLE OF AUTHORITIES ................................. vii

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT ............................

OPINIONS BELOW.............................................

JURISDICTION ...................................................

CONSTITUTIONAL AND STATUTORY

PROVISIONS ...................................................

STATEMENT OF THE CASE..............................

Introduction ......................................................

Summary of Complaint ....................................

Statutory Framework .......................................

Factual and Procedural Background

and Chronology ................................................ 10

A. The Period from 1986-1996 ................. 10

B. 1996—The Year of Confusion .............. 11

C. The Telecommunications Act of 1996 ...

D. The Period from 1997-2021 ................. 15

E. Proceedings Below ............................... 18

F. Petitioners’ Standing ........................... 20

TABLE OF CONTENTS—Continued

Page

1. Injury in Fact .................................. 20

2. Traceability..................................... 21

3. Redressability ................................. 22

REASONS FOR GRANTING THE PETITION .....

THE PREEMPTION OF STATE COURT

REMEDIES FOR INJURY WITHOUT

PROVIDING A SUBSTITUTE FEDERAL

REMEDY VIOLATES THE RIGHT OF

ACCESS TO COURTS ............................... 24

II.

“ENVIRONMENT” DOES NOT MEAN

“HEALTH” IN THE TCA OR ANY OTHER

FEDERAL LAW ......................................... 32

A. Standard of Review ............................. 33

B. No Deference Should Be Accorded the

FCC on a Subject over Which It Has

No Jurisdiction .................................... 33

C. Congress Did Not Intend to Include

“Health” as Part of the Term “Environmental” ................................................ 36

D. If “Environment” Is Given Its

Ordinary Meaning, the Constitutional

Questions Raised in This Lawsuit

Would Be Avoided ................................ 39

CONCLUSION..................................................... 40

TABLE OF CONTENTS—Continued

Page

APPENDIX

APPENDIX A—Court of Appeals Opinion filed

March 30, 2021 ................................................. App. 1

APPENDIX B—Court of Appeals Denial of

Rehearing filed May 27, 2021 ........................ App. 37

APPENDIX C—District Court Memorandum

Opinion and Order filed May 6, 2020 ............ App. 39

APPENDIX D—Statutory Provisions

Involved.......................................................... App. 71

APPENDIX E—First Amended Complaint filed

January 29, 2019 ............................................ App. 75

APPENDIX F—EPA Letter dated June 19,

1995 .............................................................. App. 150

vii

TABLE OF AUTHORITIES

Page

CASES

Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968) ........17

Bennett v. Spear, 520 U.S. 154 (1997).........................22

Bill Johnson’s Restaurants, Inc. v. Nat’l Labor

Relations Bd., 461 U.S. 731 (1983) .........................26

Brusewitz v. Wyeth LLC, 562 U.S. 223 (2011) ............27

Buckman Co. v. Plaintiffs’ Legal Committee, 531

U.S. 341 (2001) ........................................................28

Cellular Phone Taskforce v. FCC, 205 F.3d 82

(10th Cir. 2000), cert. denied, 531 U.S. 1070

(2001) .......................................................................15

Chevron U.S.A. v. Natural Resources Defense

Council, 467 U.S. 837 (1984) ....................... 33, 34, 35

City of Arlington, Tex. v. FCC, 569 U.S. 290

(2013) ................................................................. 33, 35

City of Portland v. United States, 969 F.3d 1020

(9th Cir. 2020), cert. denied sub nom. City of

Portland, Oregon v. Federal Communications

Commission, No. 20-1354, 2021 WL 2637868

(June 28, 2021) ........................................................18

City of Rancho Palos Verdes v. Abrams, 544 U.S.

113 (2005) .......................................................... 29, 33

CTS Corp. v. Waldburger, 573 U.S. 1 (2014) ..............26

Dan’s City Used Cars, Inc. v. Pelkey 569 U.S. 251

(2013) .......................................................................26

Dep’t of Commerce v. New York, 139 S. Ct. 2551

(2019) .......................................................................22

viii

TABLE OF AUTHORITIES—Continued

Page

Edmond v. United States, 520 U.S. 651, (1997) .........33

English v. General Electric Company, 496 U.S.

72 (1990) ..................................................................27

Environmental Health Trust v. FCC, Case No.

20-1025 (D.C. Cir. Aug. 13, 2021) ...................... 17, 39

Farina v. Nokia, 625 F.3d 97 (3rd Cir. 2010), cert.

denied, 565 U.S. 928 (2011) .....................................31

Farmer v. Carpenters, 430 U.S. 290 (1977).................26

FMC Corp. v. Holliday, 498 U.S. 52 (1990) ................33

Geier v. Am. Honda Motor Co., 529 U.S. 861

(2000) .......................................................................28

Goforth v. Smith, 991 S.W.2d 579 (Ark. 1999) ...........24

In re Yannon v. New York Telephone Co., 86

A.D.2d 241 (N.Y. App. Div. 1982) ............................24

Jasso v. Citizens Telecom. Co. of Cal., No. 2:05cv-2649-GEB-EFB-PS, 2007 WL 2221031

(E.D. Cal. July 30, 2007) .........................................24

Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625

(2012) .......................................................................28

Larson v. Valente, 456 U.S. 228 (1982) .......................23

Linn v. Plant Guard Workers, 383 U.S. 53

(1966) .......................................................................26

Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992) .......................................................................20

Manhattan Community Access Corp. v. Halleck,

139 S. Ct. 1921 (2019) .............................................20

TABLE OF AUTHORITIES—Continued

Page

Massachusetts v. Environmental Protection

Agency, 549 U.S. 497 (2007) ....................................22

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)......... 26, 27

Murray v. Motorola, Inc., 982 A.2d 764 (D.C. App.

2009) ........................................................................25

Mutual Pharmaceutical Co. v. Bartlett, 570 U.S.

472 (2013) ................................................................28

National Labor Relations Board v. Catholic

Bishop of Chicago, 440 U.S. 490 (1979) ..................33

New York Central Railroad Co. v. White, 243 U.S.

188 (1917) ................................................................27

Pacific Gas & Elec. Co. v. State Energy Resources

Conservation and Development Comm’n, 461

U.S. 190 (1983) ........................................................30

Pinney v. Nokia, Inc., 402 F.3d 430 (4th Cir.

2005), cert. denied, 546 U.S. 998 (2005) ............ 31, 32

Pliva, Inc. v. Mensing, 564 U.S. 604 (2011) ................28

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

(1947) .......................................................................26

Robbins v. New Cingular Wireless PCS, LLC,

854 F.3d 315 (6th Cir. 2017) ....................................24

Santa Fe Alliance for Public Health and Safety

v. City of Santa Fe, 993 F.3d 802 (10th Cir.

2021) .................................................................... 1, 32

Sierra Pacific Holdings, Inc. v. County of

Ventura, 204 Cal.App.4th 509 (Cal. App.

2012) ........................................................................28

TABLE OF AUTHORITIES—Continued

Page

Silkwood v. Kerr-McGee Corporation, 464 U.S.

238 (1984) ................................................................27

Stanley v. Amalithone Realty, Inc., 94 A.D.3d 140

(N.Y. App. Div. 2012) ................................................24

T-Mobile Northeast LLC v. Town of Ramapo, 701

F.Supp.2d 446 (S.D.N.Y. 2009) ................................15

T-Mobile S., LLC v. City of Roswell, Ga., 135

S. Ct. 808 (2015) ......................................................33

United Workers v. Laburnum Corp., 347 U.S. 656

(1954) .......................................................................27

Virginia Uranium, Inc. v. Warren, 139 S. Ct.

1894 (2019) ............................................ 29, 30, 31, 36

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Article III ........................................2

First Amendment................................................ passim

Fifth Amendment ................................................... 2, 22

Tenth Amendment ................................................ 15, 32

Fourteenth Amendment ......................................... 2, 22

STATUTES

28 U.S.C. § 1254(1) ........................................................1

28 U.S.C. § 1331 ..........................................................18

28 U.S.C. § 1343(a)(3) .................................................18

28 U.S.C. § 1367 ..........................................................18

TABLE OF AUTHORITIES—Continued

Page

28 U.S.C. § 2201 ..........................................................18

28 U.S.C. § 2201(a) ........................................................3

28 U.S.C. § 2202 ...................................................... 3, 18

42 U.S.C. § 1983 ..........................................................29

47 U.S.C. § 332 ............................................................32

47 U.S.C. § 332(c)(7) ....................................................29

47 U.S.C. § 332(c)(7)(B)(iv) ................................. passim

47 U.S.C. § 332(c)(7)(B)(v)......................................... 3, 5

47 U.S.C. § 332(c)(7)(C) .................................................8

Atomic Energy Act ......................................................30

Clean Air Act, 42 U.S.C. § 7412(a)(7) ................... 37, 38

Communications Act of 1934.............................. 7, 8, 34

47 U.S.C. § 303...........................................................8

Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.

§ 9601(8) ..................................................................37

Energy Supply and Environmental Coordination Act, 15 U.S.C. § 793 ..........................................38

Federal Insecticide, Fungicide, and Rodenticide

Act, 7 U.S.C. §§ 136(q)(1)(F), 136(q)(1)(G),

136(x), 136w(c)(5), 136w(d)(1) .................................38

National Environmental Policy Act........8, 12, 13, 35, 38

Reorganization Plan No. 3 of 1970, 84 Stat.

2086 ................................................................ 10, 11

xii

TABLE OF AUTHORITIES—Continued

Page

Resource Conservation and Recovery Act, 42

U.S.C. §§ 6901(b), 6921(d)(2), (d)(3), (d)(4), (g) .......38

Santa Fe City Code, Chapter 27..................... 3, 6, 9, 23

Ordinance No. 2016-42 ..................................... 3, 5, 9

Ordinance No. 2017-18 ..................................... 3, 5, 9

Section 27-2.19(C)(1)(a) (2017) ...............................10

Telecommunications Act of 1996, Pub. L. 104104 ................................................................... passim

Section 601(c)(1) .......................................... 28, 29, 30

Section 704 ...................................................... passim

Toxic Substances Control Act,

15 U.S.C. § 2602(15)(A)(ii) .......................................38

15 U.S.C. § 2604(a)(3)(B)(i) .....................................38

Wireless Consumer Advanced Infrastructure

Investment Act, NMSA 1978, Chapter 63,

Article 9I §§ 63-9I-4(C) and 63-9I-5(B) (Repl.

Pamp. 2018) ......................................... 3, 5, 10, 19, 23

FEDERAL REGULATIONS

47 C.F.R. § 1.1307 ................................................... 8, 13

RULES

Fed. R. Civ. P. 12(b)(1) .................................................18

Fed. R. Civ. P. 12(b)(6) ........................................... 18, 19

xiii

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

33 Fed. Reg. 19044 (Dec. 20, 1968) .............................10

Environmental Protection Agency, Notice of

Proposed Recommendations, 51 Fed. Reg.

27318 (July 30, 1986) ..............................................11

Guidelines for Evaluating the Environmental

Effects of Radiofrequency Radiation, Notice

of Proposed Rulemaking, FCC 93-142, 8 FCC

Rcd. 2849 (1993) ................................................ 12, 13

Guidelines for Evaluating the Environmental

Effects of Radiofrequency Radiation, Report

and Order, ET Docket 93-62, FCC 96-326, 11

FCC Rcd. 15123 (1996) ..................... 8, 12, 13, 14, 34

Health Effects of Transmission Lines: Oversight

Hearing before the Subcommittee on Water

and Power Resources of the Committee on

Interior and Insular Affairs, House of

Representatives, One Hundredth Congress,

First Session, Serial No. 11-22 (October 6,

1987) ........................................................................11

Inquiry Concerning Biological Effects of Radio

Frequency Radiation When the Use of Radio

Frequency Devices is Authorized, FCC 79-364,

¶ 20, 44 Fed. Reg. 37008, 37011 (June 25,

1979) ........................................................................34

Merriam-Webster dictionary,

www.merriam-webster.com.....................................36

xiv

TABLE OF AUTHORITIES—Continued

Page

Microwave News, “Industry Pressures FCC to

Adopt ANSI RF/MW Exposure Standard,”

March/April 1996 ....................................................13

Reassessment of Federal Communications

Commission Radiofrequency Exposure Limits

and Policies, FCC 13-39, Notice of Inquiry, ET

Docket No. 13-84 (2013) ..........................................16

Reassessment of Federal Communications

Commission Radiofrequency Exposure Limits

and Policies, FCC 19-126, Resolution of Notice

of Inquiry, ET Docket No. 13-84 (2019) ..................16

The American Heritage Dictionary, Fifth Edition

596 (2011) ................................................................37

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

The Santa Fe Alliance for Public Health and

Safety, et al. respectfully petition for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Tenth Circuit.

---------------------------------♦---------------------------------

OPINIONS BELOW

The opinion of the court of appeals is reported at

993 F.3d 802 (10th Cir. 2021). The unpublished order

denying the parties’ petition for rehearing was filed on

May 27, 2021 (App. 37).

The unpublished opinion of the district court is

reported electronically at 2020 WL 2198120 (D.N.M.

May 6, 2020).

---------------------------------♦---------------------------------

JURISDICTION

The court of appeals entered its Opinion on March

30, 2021. A timely petition for rehearing and rehearing

en banc was denied on May 27, 2021. Pursuant to

Supreme Court Rules 13.1 and 13.3 and the Supreme

Court’s Order of March 19, 2020 regarding filing

deadlines, this petition is filed within 150 days of the

date of the court of appeals’ Opinion. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

---------------------------------♦---------------------------------

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The relevant constitutional provisions include the

First Amendment, which provides in relevant part:

Congress shall make no law . . . abridging the

freedom of speech . . . or the right of the people

peaceably to assemble and to petition the

government for a redress of grievances;

the Fifth Amendment:

No person shall . . . be deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use,

without just compensation;

and the Fourteenth Amendment, which provides in

relevant part:

No state shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

U.S. Const., art. III, § 2 provides in relevant part,

“The judicial power shall extend to all cases, in law and

equity, arising under this Constitution, the laws of the

United States, and treaties made, or which shall be

made, under their authority; . . . [and] to controversies

to which the United States shall be a party.”

28 U.S.C. § 2201(a) provides in relevant part, “any

court of the United States, upon the filing of an

appropriate pleading, may declare the rights and other

legal relations of any interested party seeking such

declaration, whether or not further relief is or could be

sought. Any such declaration shall have the force and

effect of a final judgment or decree and shall be

reviewable as such.”

28 U.S.C. § 2202 provides in relevant part,

“Further necessary or proper relief based on a

declaratory judgment or decree may be granted, after

reasonable notice and hearing, against any adverse

party whose rights have been determined by such

judgment.”

The challenged statutes and ordinances are:

Section 704 of the Telecommunications Act of 1996,

47 U.S.C. §§ 332(c)(7)(B)(iv)-(v); City of Santa Fe

Ordinance No. 2016-42, amending Santa Fe City Code,

Chapter 27; City of Santa Fe Ordinance No. 2017-18,

further amending Santa Fe City Code, Chapter 27; and

the Wireless Consumer Advanced Infrastructure

Investment Act, New Mexico Statutes Annotated 1978,

Chapter 63, Article 9I, adopted September 1, 2018. The

pertinent text of these laws is set out in the Appendix.

App. 71-74.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

Introduction

Petitioners Santa Fe Alliance for Public Health

and Safety (“Alliance”), Arthur Firstenberg, and Monika Steinhoff seek restoration of basic constitutional

rights whose denial has permitted a 25-year-long

assault on the health of this nation and all its

residents. The Alliance is an association of physicians,

health care practitioners, psychotherapists, educators,

artists, and others who have suffered personal injury,

up to and including seizures, heart damage, cancer,

and respiratory failure, and loss of homes and

businesses rendered uninhabitable by the proximity of

cell towers and antennas. App. 91-96. They are among

the millions of people who have been forced out of their

homes by such facilities, creating a growing class of

environmental refugees. App. 100.

This petition brings two related questions before

the Court: (1) Does the preemption clause in the

Telecommunications Act of 1996 (“TCA”) violate the

right of access to courts guaranteed by the First

Amendment? and (2) an issue of statutory interpretation, viz., Does “environmental effects” mean “health

effects” in that preemption clause? Either an answer

in the affirmative to the first question, or in the

negative to the second, would restore all of the

constitutional rights that necessitated the bringing of

this action. To understand the incredible reach of that

preemption clause and the depth and breadth of the

deprivations it has been causing Americans for 25

years necessitates a summary of the complaint

brought by Petitioners not only against the United

States but against their City and their State Attorney

General, and a review of the history of this unresolved

legal issue for the past 35 years.

Summary of Complaint

The complaint underlying this appeal challenges

federal, state, and city laws regarding the permitting

and regulation of wireless telecommunications infrastructure. Specifically, Petitioners challenge: (1) those

provisions of the Telecommunications Act of 1996, 47

U.S.C. § 332(c)(7)(B)(iv)-(v) (“Section 704”), which

prohibit states and municipalities from considering

the environmental effects of RF radiation when making siting decisions for wireless telecommunications

facilities; (2) repeal by the City of Santa Fe (“City”) of

land use regulations and notice requirements

regarding telecommunications facilities in public

rights-of-way (Ordinance Nos. 2016-42 and 2017-18);

(3) three executive Proclamations issued by the Mayor

of Santa Fe temporarily suspending the City’s Land

Development Code with respect to telecommunications

facilities on city-owned property; and (4) the State of

New Mexico’s Wireless Consumer Advanced Infrastructure Investment Act (“WCAIIA”), NMSA 1978,

§ 63-9I (Repl. Pamp. 2018), which permits antennas

and supporting structures in public rights-of-way, and

exempts such facilities from land use regulations. App.

76-77.

For years, Respondents have been aware of the

health issues presented by wireless telecommunications infrastructure. App. 76-77. For example, the City

has been continuously informed about the dangers of

RF radiation for almost two decades by a succession of

citizen organizations (App. 102) and by Plaintiff

Firstenberg who was appointed by the mayor in 2007

to advise the City on these issues. Id. The City included

protections against RF radiation in previous versions

of its land development code and previous versions of

Chapter 27. App. 100-103. However, under the City’s

newly-enacted regulatory scheme, franchises are

awarded for wireless facilities on the streets and

sidewalks; wireless facilities are exempt from notice,

hearing, and even application requirements (App. 104105); and protections from RF radiation previously

contained in Chapter 27 have been repealed. App. 102104. Five franchises have now been awarded: Plateau

Telecommunications, Inc.; Cyber Mesa Computer Systems, Inc.; Conterra Ultra Broadband, LLC; Computer

Network Service Professional, Inc. dba NMSURF; and

Mobilitie, LLC dba Broadband Network of New

Mexico, LLC. App. 109. One franchisee, Cyber Mesa, is

erecting antennas on the sidewalk surrounding Santa

Fe Plaza, and Mobilitie and NMSURF are preparing to

erect antennas on sidewalks in various parts of Santa

Fe. App. 110. Petitioners are imminently threatened

with further injury.

The complaint alleges that these laws “remove all

public protection from injurious facilities in the public

rights-of-way, infringe on the public’s right to speak

about a danger to their own health, eliminate all public

participation into the siting of such facilities, and

deprive injured parties of any remedy for their

injuries.” App. 90. Therefore, Petitioners “seek a

declaration that these laws, and any other laws that

may be enacted by their City, their State, or the United

States, that would deprive them of any means of

protecting themselves from RF radiation and of any

remedy for injury by such radiation, are unconstitutional, and to enjoin enforcement of these laws.” App.

91.

In particular, Petitioners allege that “Section

704 deprives people injured, sickened and/or killed

by such radiation of access to state courts for redress

for their injuries, and provides them no substitute

federal remedy,” App. 117-118 (Fourth Cause of

Action), and request that the operation of 47 U.S.C.

§§ 332(c)(7)(B)(iv) and (v) be temporarily and permanently enjoined. App. 143-144 (Twenty-Second Cause

of Action).

In the alternative, Petitioners seek a declaration

that “environmental effects” does not mean “health

effects” in Section 704. App. 135 (Seventeenth Cause of

Action).

Statutory Framework

The Communications Act of 1934, as amended,

vests enforcement and regulatory authority over the

technical aspects of wired and wireless communications in the Federal Communications Commission

(“FCC”). 47 U.S.C. § 303, “Powers and duties of

Commission.” No authority over the health aspects of

communications is given to the FCC. While the FCC

has adopted guidelines for human exposure to RF

radiation, these are procedural guidelines only that

are not enforceable. They are simply cutoff values to

define “Actions that may have a significant environmental effect, for which Environmental Assessments

(EAs) must be prepared,” 47 C.F.R. § 1.1307, and were

adopted to meet the FCC’s responsibilities under the

National Environmental Policy Act (“NEPA”).1

The Telecommunications Act of 1996 (“TCA”), Pub.

L. 104-104, amended the Communications Act to, inter

alia, define the limits of local zoning authority over cell

towers. In particular, Section 704 of the TCA, codified

at 47 U.S.C. § 332(c)(7)(B)(iv), provides, “No State or

local government or instrumentality thereof may

regulate the placement, construction, and modification

of personal wireless service facilities2 on the basis of

the environmental effects of radio frequency emissions

to the extent that such facilities comply with the

Guidelines for Evaluating the Environmental Effects of

Radiofrequency Radiation, Report and Order, ET Docket 93-62,

FCC 96-326, ¶ 5, 11 FCC Rcd. 15123 (1996).

“Personal wireless service facilities” is defined in Section

704 to mean facilities that provide “commercial mobile services,

unlicensed wireless services, and common carrier wireless

exchange access services.” 47 U.S.C. § 332(c)(7)(C). Together

these comprise different kinds of what are commonly known as

“cell towers.”

Commission’s regulations concerning such emissions.”

(Emphasis added).

Chapter 27 of the Santa Fe City Code regulates

telecommunications facilities in the public rights-ofway. On November 9, 2016, the City adopted Ordinance

2016-42 to amend Chapter 27 to, in part, authorize the

awarding of franchises for the use of the public rightsof-way to provide telecommunications services. Ordinance 2016-42 (amending SFCC 1987 § 27-2.4(D)

(2017)). On August 30, 2017, the City adopted

Ordinance 2017-18, which repealed many franchise

application requirements in order to streamline the

review process, and eliminated virtually all land use

regulations for antennas and towers in public rightsof-way. Ordinance 2017-18 (amending SFCC 1987

§§ 27-2.19(C), (E), and (G) (2017)).

Under these ordinances, the only requirement left

for placing antennas and towers in public rights-ofway is possession of a franchise. Franchises are to be

awarded to all telecommunications providers on a

non-discriminatory basis, and franchisees are permitted to erect unlimited numbers of antennas and

towers anywhere within the public rights-of-way, with

no public hearings, no public comment, no public

notice, no notice to neighbors, no setback or other

regulatory requirements, no certification of compliance

with the FCC’s safety regulations, and without even

submitting an application to the City. The only

remaining requirement besides possession of a

franchise is for telecommunications providers to

comply with design guidelines that the City will have

adopted. SFCC § 27-2.19(C)(1)(a) (2017). But even this

minimal requirement is not being enforced because

under a new State law, WCAIIA, also challenged

here, such facilities are exempt from all land use

requirements. NMSA 1978 §§ 63-9I-4(C) and 5(B)

(2018). City residents will have no warning before cell

tower transmitters suddenly appear in front of their

homes and businesses or outside their children’s

bedroom windows and school classrooms, and they will

have no recourse. App. 105.

Factual and Procedural

Background and Chronology

A. The Period from 1986-1996

The necessity of limiting exposure to RF radiation,

and of placing its sources far from human habitation,

are not in doubt.

On July 30, 1986, the Environmental Protection

Agency (“EPA”), which had responsibility under its

charter to conduct research and develop standards for

human exposure to RF radiation,3 and had had its own

All functions formerly vested in the Bureau of Radiological

Health (“BRH”) were transferred to EPA by Section 2(a)(3)(ii)(C)

of the Reorganization Plan No. 3 of 1970, 84 Stat. 2086, which

created the EPA. The functions previously vested in the BRH

included: “Carries out programs designed to reduce the exposure

of man to hazardous ionizing and nonionizing radiation. Develops

criteria and recommends standards for safe limits of radiation

exposure. . . . Plans and conducts research on the health effects

of radiation exposure.” 33 Fed. Reg. 19044, 19051-52 (Dec. 20

1968). EPA is responsible for these functions with respect to all

sources of radiation except for radiation from consumer products,

RF radiation research laboratory since 1971, issued a

Notice of Proposed Recommendations, in which it

proposed to develop human exposure standards for RF

radiation for adoption and enforcement by other federal agencies. In this Notice, EPA stated: “Effects occur

in test animals exposed at RF radiation intensities

found in the environment.”4 (Emphasis added). The

following year, EPA continued to sound the alarm. A

“Summary of research performed by EPA scientists on

low-frequency modulation of RF radiation” appears on

pp. 166-168 of a 1987 House Subcommittee Report.5 In

this summary, EPA stated: “it is not possible to assign

a low intensity limit or threshold below which the

exposures are without effect.” (Emphasis added). On

June 19, 1995, EPA announced in a letter to the FCC

that EPA’s RF exposure guidelines were substantially

complete. App. 150.

B. 1996—The Year of Confusion

The confusion began in 1996, when Congress passed

the Telecommunications Act. In the TCA, Congress

commanded the FCC to complete its rulemaking,6

radiation used in the healing arts, and occupational exposures.

Reorganization Plan No. 3, Section 2(a)(3)(ii).

51 Fed. Reg. 27318, 27318 (July 30, 1986).

Health Effects of Transmission Lines: Oversight Hearing

before the Subcommittee on Water and Power Resources of the

Committee on Interior and Insular Affairs, House of Representatives, One Hundredth Congress, First Session, Serial No. 11-22

(October 6, 1987).

TCA, Section 704(b).

begun in 1993 to comply with its responsibilities under

NEPA to evaluate the environmental effects of RF

radiation from the telecommunications facilities that

it licenses.7 The FCC, however, did not evaluate the

effects of RF radiation on any aspect of the

environment. Instead it interpreted its responsibility

under NEPA to consist of evaluating the effects of RF

radiation on human health.8

This created the illusion that the FCC had the

authority and expertise to protect human health. And

the illusion was compounded by Congress’ command,

which gave the impression that the FCC’s NEPA

guidelines had the force of law. The FCC has since then

been a straw man that has been a convenient target

for petitions, lawsuits, and criticism relating to the

health effects of RF radiation but in reality has neither

the power, expertise, nor ability to protect anyone or

remedy injuries. And the assumption that “environmental effects” means “health effects” in the

preemption clause of Section 704 is just that: an

assumption. It is an assumption that has never been

challenged or interpreted by any court, it has just been

assumed.

The FCC obeyed Congress and completed its rulemaking. Guidelines for Evaluating the Environmental

Effects of Radiofrequency Radiation, Report and Order,

Guidelines for Evaluating the Environmental Effects of

Radiofrequency Radiation, Notice of Proposed Rulemaking, FCC

93-142, ¶ 2, 8 FCC Rcd. 2849 (1993).

Id. ¶ 2.

ET Docket 93-62, FCC 96-326, ¶ 5, 11 FCC Rcd. 15123

(1996). In these guidelines, the FCC acknowledged

that it “is not a health and safety agency,” id. ¶ 28, and

that the guidelines were unenforceable and were only

“Actions that may have a significant environmental

effect, for which Environmental Assessments (EAs)

must be prepared” pursuant to its responsibilities

under NEPA, as codified in 47 C.F.R. § 1.1307.9

This Alice-in-Wonderland world was compounded

even further. Having no expertise to draft health

standards, the FCC wrote that it “relies on expert

health and safety agencies within the Federal Government, including the U.S. Environmental Protection

Agency . . . ”10 However, instead of adopting standards

that had been developed by EPA in order to protect the

public health, which would have been mandatory and

enforceable,11 and which would have acknowledged

that there is no safe level of exposure to RF radiation,

the FCC adopted unenforceable guidelines that had

been developed by private organizations whose

Guidelines for Evaluating the Environmental Effects of

Radiofrequency Radiation, Report and Order, ET Docket 93-62,

FCC 96-326, ¶ 5 and Appendix C, p. 89, 11 FCC Rcd. 15123

(1996).

8 FCC Rcd. 2849, 2850 (1993), ¶ 11.

EPA’s guidelines were never issued. After intense lobbying

by the Electromagnetic Energy Association, a telecommunications industry trade group (Microwave News, “Industry Pressures

FCC to Adopt ANSI RF/MW Exposure Standard,” Mar./Apr. 1996,

pp. 1, 11-12, https://www.microwavenews.com/sites/default/files/

sites/default/files/backissues/m-a96issue.pdf ), Congress deleted

the $350,000 that had been budgeted for the completion of EPA’s

guidelines. H.R. Rep. No. 104-384 at 66 (December 6, 1995).

purpose was to facilitate the development of wireless

telecommunications, and which pretended that there

is a safe level of exposure to RF radiation. These

organizations were the Institute for Electrical and

Electronics Engineers (“IEEE”) and the National

Council on Radiation Protection and Measurements

(“NCRP”), which, despite its name, is not a government

agency.12

C. The Telecommunications Act of 1996

Section 704 of the TCA contained within it a onesentence preemption clause that has been assumed by

courts—an assumption that has neither been challenged nor adjudicated—to relieve telecommunications companies of liability for injury by RF radiation

from their facilities:

State

local

government

instrumentality thereof may regulate the

placement, construction, and modification of

personal wireless service facilities on the

basis of the environmental effects of radio

frequency emissions to the extent that such

facilities comply with the Commission’s

regulations concerning such emissions.

47 U.S.C. § 332(c)(7)(B)(iv). With this preemption

clause in place, telecommunications companies proceeded to erect hundreds of thousands of cell towers

Guidelines for Evaluating the Environmental Effects of

Radiofrequency Radiation, Report and Order, FCC 96-326, ¶ 1

notes 1, 2.

throughout the United States without fear of being

sued, and local governments and private citizens were

powerless to stop them.

D. The Period from 1997-2021

In 1997, 72 organizations, public officials, and

individuals appealed the FCC’s Orders adopting RF

exposure guidelines to the United States Court of

Appeals for the Second Circuit. The Second Circuit

ruled that the FCC’s Orders were not arbitrary and

capricious, and that Section 704 did not violate the

Tenth Amendment. The Supreme Court denied

certiorari. Cellular Phone Taskforce v. FCC, 205 F.3d

82 (10th Cir. 2000), cert. denied, 531 U.S. 1070 (2001).

Since that time, no zoning board or city council in

the United States has been permitted to hear

testimony about injury by cell towers. Citizens may not

object based on health, and scientists may not give

expert testimony about health. If such testimony is

given, decision-making bodies may not take such

testimony into consideration. If they do consider such

testimony, they are subject to lawsuits by telecommunications companies and reversal by courts. See, e.g.,

T-Mobile Northeast LLC v. Town of Ramapo, 701

F.Supp.2d 446, 460 (S.D.N.Y. 2009):

[H]ealth concerns played a prominent role in

community opposition to the application. In

Planning Board hearings on July 11,

September 12, and October 17, 2006, town

residents repeatedly spoke of their concern

that T-Mobile’s proposed facility would create

a health hazard. The Court has no trouble

concluding that the Town’s decision was at

least partly based on the environmental

effects of the proposed tower’s radio frequency

emissions. [¶] . . . T-Mobile is entitled to

summary judgment on this claim.

(Citation to the record omitted).

In 2013, the FCC issued a Notice of Inquiry in

which it asked whether there was any basis upon

which to revise its RF exposure guidelines.13 Participants in the proceeding reentered the Wonderland

world that has been operating since 1996. They

assumed that the FCC has jurisdiction over health and

that its guidelines are enforceable. They submitted

thousands of pages of scientific evidence of harm. As

before, the FCC disclaimed expertise to evaluate the

evidence.14 As before, the FCC claimed to rely on the

advice of the expert health and safety agencies.15 As

before, the FCC failed to consult with those health

and safety agencies before making its decision.16 The

FCC’s exposure guidelines were not revised. The

Environmental Health Trust and other parties filed an

Reassessment of Federal Communications Commission

Radiofrequency Exposure Limits and Policies, FCC 13-39, Notice

of Inquiry, ET Docket No. 13-84 (2013).

Reassessment of Federal Communications Commission

Radiofrequency Exposure Limits and Policies, FCC 19-126, § 153,

Resolution of Notice of Inquiry, ET Docket No. 13-84 (2019).

Id.

Id. § 12.

appeal in the D.C. Circuit. Environmental Health Trust

v. FCC, D.C. Cir., Case No. 20-1025.

On August 13, 2021, the D.C. Circuit ruled that the

FCC’s failure to evaluate the scientific evidence was

arbitrary and capricious and ordered it to do so.17

However, no matter what the FCC does, people who

suffer injury and loss from telecommunications

facilities still have no remedy. The contradictions

between the preemption clause in Section 704, as

construed to date, and the reality that the FCC has no

jurisdiction over health18 and that its human exposure

guidelines are procedural only and do not have the

force of law, have still not been faced and will continue

to cause widespread injury and damage to the nation’s

public health.

As more and more people are being injured, they

are putting increasing pressure on their local

governments to protect them and, in 2018 and 2019,

hundreds of cities and counties sued the United States

and the FCC to regain at least partially their right to

protect the public health, safety, and welfare. These

cities and counties demanded the right to regulate the

Environmental Health Trust v. FCC, No. 20-1025 at 30-31,

(D.C. Cir. Aug. 13, 2021).

The D.C. Circuit erroneously cited Banzhaf v. FCC, 405

F.2d 1082, 1096 (D.C. Cir. 1968) in support of its assertion that

the FCC has jurisdiction over health. Banzhaf held only that the

FCC has the power to regulate the content of radio programming

in the public interest. It also held that the FCC has “no special

expertise” over matters of health, id. at 1097, and that “the

Commission expressly refused to rely on any scientific expertise

of its own.” Id. at 1098.

placement and construction of telecommunications

antennas, millions of which are beginning to be

installed atop utility poles in the public rights-of-way

outside people’s bedroom windows as infrastructure

for the next generation of wireless services, known as

5G. They did not challenge the constitutionality of the

preemption clause in Section 704 and therefore were

constrained to argue on the basis of aesthetics and fees

instead of health, which was and is the real issue. The

Ninth Circuit, in which their numerous actions were

joined, accordingly deferred to the FCC, upholding its

orders facilitating the placement of “small cells” in the

public rights-of-way nationwide. The Supreme Court

denied certiorari. City of Portland v. United States, 969

F.3d 1020 (9th Cir. 2020), cert. denied sub nom. City of

Portland, Oregon v. Federal Communications Commission, No. 20-1354, 2021 WL 2637868 (June 28, 2021).

E. Proceedings Below

The district court had jurisdiction over Petitioners’ federal claims under 28 U.S.C. § 1331 (federal

question jurisdiction), 28 U.S.C. §§ 2201 and 2202

(Declaratory Judgment Act), and 28 U.S.C. § 1343(a)(3)

(civil rights claims), and was able to exercise supplemental jurisdiction over the state-law claims pursuant

to 28 U.S.C. § 1367. App. 98. Only two Respondents, the

United States and the City, moved to dismiss

Petitioners’ claims for lack of standing and for failure

to state a claim under Fed. R. Civ. P. 12(b)(1) and (b)(6).

The district court ruled that Petitioners had established standing to bring their constitutional claims,

but dismissed those claims under Rule 12(b)(6). App.

54, 69-70. The district court also dismissed Petitioners’

claims against the New Mexico Attorney General sua

sponte.

A three-judge panel of the Tenth Circuit denied

Petitioners standing to assert their takings claims,

their substantive due process claims against WCAIIA

and the City Ordinances, and their substantive and

procedural due process claims against Section 704. The

court granted Petitioners standing to assert their

procedural due process claims against WCAIIA and

the City Ordinances; and their First Amendment free

speech, right to petition, and access to courts claims

against the TCA, WCAIIA and the City Ordinances;

however, the court dismissed all these claims under

Rule 12(b)(6).

Although the court of appeals ruled that the effect

of WCAIIA and the City Ordinances is to deprive

Petitioners of notice and an opportunity to be heard,

App. 28, it ruled that legislative acts do not have to

provide due process. App. 28. Although it ruled that

Petitioners have been denied the right to petition their

local government regarding RF radiation, and have no

remedy for injury in any court, App. 26-27, the court of

appeals held that Petitioners cannot assert their right

to petition or access to courts claims because

Petitioners retain a right to petition the FCC to change

its RF exposure standards. App. 29-30. Although the

court ruled that Petitioners have suffered injury in fact

because their City is prohibited from paying attention

to speech about RF radiation, App. 26, it ruled that

Petitioners cannot assert a free speech claim because,

while the City may not consider what they say,

Petitioners can still say it. App. 31.

Petitioners’ Standing

The burden of establishing a federal court’s subject matter jurisdiction rests upon the party asserting

jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992). To satisfy this burden, the party must

show: (1) one plaintiff has suffered an “injury in fact”

that is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical; (2) the

injury is fairly traceable to the challenged actions of

each defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a

favorable decision. Id. at 560-561.

In evaluating an appeal from a case that was

resolved on a motion to dismiss, the factual allegations

in the complaint are accepted as true. Manhattan

Community Access Corp. v. Halleck, 139 S. Ct. 1921,

1935 (2019).

Injury in Fact

In December 2018, after Petitioners had experienced specific harm from specific facilities erected

pursuant to the Mayor’s Proclamations of Emergency

(App. 93-96), after five franchises had been awarded

(App. 109), and after three franchisees had announced

the specific locations of some of their proposed facilities

(App. 110), Petitioners filed the present action. These

injuries are not generalized grievances. Petitioners

allege not that RF radiation increases symptoms but

that it is a cause of major diseases for Petitioners as

well as the general public. App. 81-88. Cell tower

radiation has caused Petitioner Firstenberg laryngospasm, heart arrhythmias, and elevated cardiac

enzymes, indicating damage to cardiac and/or skeletal

muscle, all of which are life-threatening. App. 93-94.

Radiation from cell towers has cost these people their

property, their liberty, their livelihood, and nearly their

lives. App. 91-93. Laryngospasm, irregular heartbeat,

elevated blood pressure, damage to heart muscle,

crippling pains, and loss of six homes are not

“generalized harms.” Petitioners and their members

have already been injured by RF radiation, infringing

their rights to remain in their own home, continue in

their business and frequent public places in their own

city. App. 91-96, 113-114, 116-117, 129.

Traceability

The causal connection of Petitioners’ injuries to

the action of the United States is clear: Section 704, as

applied, has prohibited the City and State from

protecting the public health. App. 111, 117-118, 138,

139-140. The placement of antennas on the sidewalks,

which the City could not authorize were it not

prohibited from fulfilling its obligation to protect its

citizens’ health, and which has been delayed pending

the outcome of this lawsuit, would deprive Petitioners

and Petitioners’ members of their lives, liberty, and

property, violating their rights under the First, Fifth,

and Fourteenth Amendments. App. 113-118, 137-142

(Counts 1, 2, 3, 4, 18, 19, and 20). “[F]airly traceable”

does not require a defendant’s action to be “the very

last step in the chain of causation.” Bennett v. Spear,

520 U.S. 154, 169 (1997) (finding petitioners had

standing to challenge federal law even though

subsequent decisions by other governmental entities

also caused harm, explaining the “fairly traceable”

prong “does not exclude injury produced by

determinative or coercive effect upon the action of

someone else”). If the predicted result is premised on

the actions of third parties, this type of “predictable

effect of Government action on the decisions of third

parties” is sufficient to establish traceability. Dep’t of

Commerce v. New York, 139 S. Ct. 2551, 2566 (2019).

Petitioners’ claimed constitutional injuries are the

direct result of the State Respondents’ interpretation

of and reliance on Section 704. See Massachusetts v.

Environmental Protection Agency, 549 U.S. 497, 516

(2007) (“The parties’ dispute turns on the proper

construction of a congressional statute, a question

eminently suitable to resolution in federal court.”).

Redressability

Petitioners sufficiently alleged redressability:

there are presently no antennas on the sidewalk in

front of their homes and businesses (App. 107), and

retaining the status quo would redress Petitioners’

grievances. The invalidation of Section 704 would

restore their ability to protect themselves from such

installations, which has been denied them by the City

explicitly on the basis of preemption by Section 704.

App. 105-106. Petitioners have asserted discrete and

particularized injuries, and they have asserted the

violation of procedural rights that bar relief from those

injuries. A decision that health is not preempted will

likely redress their grievances. See Larson v. Valente,

456 U.S. 228, 243 n.15 (1982) (“[A] plaintiff satisfies the

redressability requirement when he shows that a

favorable decision will relieve a discrete injury to

himself. He need not show that a favorable decision

will relieve his every injury.”) (Emphasis in original).

The joint effect of Section 704, WCAIIA, and the

amended Chapter 27 of the Santa Fe City Code is not

just to “permit” but to mandate the universal placement of wireless telecommunications facilities without

ever considering the effects of these facilities on the

health of American citizens. Petitioners’ injuries

cannot be redressed only by an injunction against the

State Respondents because no court can grant such an

injunction unless Section 704 is reconstrued or

invalidated.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

Attempts to obtain protection from RF radiation

by petitioning or suing the FCC are futile, because the

FCC has no jurisdiction over health, its exposure limits

are unenforceable, and regardless of the outcome of

those petitions or lawsuits, people will still have no

remedy for their losses as long as the preemption

clause remains in place and is construed as it has been

until now. Either a declaration that the preemption

clause is unconstitutional, or a holding that “environmental effects” does not mean “health effects,” would

restore to all citizens the rights guaranteed them

under the Constitution and vitiate the necessity of

suing their local governments.

THE PREEMPTION OF STATE COURT

REMEDIES FOR INJURY WITHOUT

PROVIDING A SUBSTITUTE FEDERAL

REMEDY VIOLATES THE RIGHT OF

ACCESS TO COURTS

Prior to 1996, injured parties could seek recompense for injury and death caused by RF radiation. See

In re Yannon v. New York Telephone Co., 86 A.D.2d 241

(N.Y. App. Div. 1982) (upholding Workers’ Compensation award to widow of man killed by low-level RF

radiation). But since 1996, the preemption clause in

the TCA has resulted in dismissal of all claims for

injury by RF radiation. See, e.g., Robbins v. New

Cingular Wireless PCS, LLC, 854 F.3d 315, 320 (6th

Cir. 2017) (“Allowing RF-emissions-based tort suits

would . . . shift the power to regulate RF emissions

away from the FCC and into the hands of courts and

state governments.”); Accord Goforth v. Smith, 991

S.W.2d 579 (Ark. 1999); Jasso v. Citizens Telecom. Co.

of Cal., No. 2:05-cv-2649-GEB-EFB-PS, 2007 WL

2221031 (E.D. Cal. July 30, 2007); Stanley v.

Amalithone Realty, Inc., 94 A.D.3d 140, 146 (N.Y. App.

Div. 2012). See also Murray v. Motorola, Inc., 982 A.2d

764 (D.C. App. 2009) (permitting tort claims for injury

by pre-1996 cell phones and barring claims about

phones manufactured in or after 1996).

The court of appeals’ decision in this case that the

right of access to courts is not infringed because

Petitioners can “petition[ ] the government regarding

radio-frequency emissions” (App. 30) confuses a

petition with a remedy for injuries. The FCC’s rules

allow such petitions, but the FCC is not a court, cannot

hear tort claims, and cannot award damages. The court

of appeals’ unstated assumption that different emission standards could guarantee safety is supported by

no evidence and denied by Petitioners. App. 76-77.

Moreover, the FCC has no jurisdiction over health and

its RF exposure guidelines, at whatever level it sets

them, are not enforceable and do not guarantee

compliance. See supra at 8. Preemption without a

federal remedy is a violation of basic rights. The fact

that Petitioners have no remedy at law for injuries to

their bodies or their properties, together with the

failure of Congress to provide any substitute federal

remedy at all, is constitutionally infirm, as this Court

has reminded us repeatedly.

“[B]ecause the States are independent

sovereigns in our federal system,” the Court

“ ‘assum[es] that the historic police powers of

the States were not to be superseded by the

Federal Act unless that was the clear and

manifest purpose of Congress.’ ”

CTS Corp. v. Waldburger, 573 U.S. 1, 18-19 (2014)

(quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485

(1996) (quoting Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947)).

Such statements have appeared in this Court’s

opinions for a century. See Bill Johnson’s Restaurants,

Inc. v. Nat’l Labor Relations Bd., 461 U.S. 731, 742-743

(1983), in which a unanimous Court ruled:

If the Board is allowed to enjoin the

prosecution of a well-grounded state lawsuit,

it necessarily follows that any state plaintiff

subject to such an injunction will be totally

deprived of a remedy for an actual injury . . .

Considering the First Amendment right of

access to the courts and the state interests

identified in cases such as Linn [v. Plant

Guard Workers, 383 U.S. 53 (1966)] and

Farmer [v. Carpenters, 430 U.S. 290 (1977)],

however, we conclude that the Board’s

interpretation of the Act is untenable.

(Emphasis added). In Dan’s City Used Cars, Inc. v.

Pelkey, 569 U.S. 251, 265 (2013), the Court again

unanimously found no preemption in the absence of a

substitute federal remedy:

[I]f such state-law claims are preempted [by

the Federal Aviation Administration Authorization Act of 1994], no law would govern

resolution of a non-contract-based dispute

arising from a towing company’s disposal of a

vehicle previously towed or afford a remedy

for wrongful disposal. . . . No such design can

be attributed to a rational Congress;

And again, from Medtronic, Inc. v. Lohr, 518 U.S. at

488-489:

Medtronic’s sweeping interpretation of the

[Medical Device Amendments of 1976] would

require far greater interference with state

legal remedies, producing a serious intrusion

into state sovereignty while simultaneously

wiping out the possibility of a remedy for the

Lohrs’ alleged injuries. . . . [W]e cannot accept

Medtronic’s argument . . . ;

In Silkwood v. Kerr-McGee Corporation, 464 U.S. 238,

251 (1984), the court said, simply:

It is difficult to believe that Congress would,

without comment, remove all means of

judicial recourse for those injured by illegal

conduct;

Accord English v. General Electric Company, 496 U.S.

72, 83 (1990); United Workers v. Laburnum Corp., 347

U.S. 656, 663-664 (1954); New York Central Railroad

Co. v. White, 243 U.S. 188, 201 (1917).

Conversely, in Brusewitz v. Wyeth LLC, 562 U.S.

223 (2011), a preemption provision in the National

Childhood Vaccine Injury Act of 1986 barred state tort

claims because a substitute federal remedy was

provided.

This Court has occasionally, in recent years, found

preemption of state tort remedies even in the absence

of a federal substitute remedy. Geier v. Am. Honda

Motor Co., 529 U.S. 861 (2000); Buckman Co. v.

Plaintiffs’ Legal Committee, 531 U.S. 341 (2001); Pliva,

Inc. v. Mensing, 564 U.S. 604 (2011); Kurns v. R.R.

Friction Prods. Corp., 565 U.S. 625 (2012); Mutual

Pharmaceutical Co. v. Bartlett, 570 U.S. 472 (2013). In

those cases, however, and in contrast to this case, the

regulatory agencies whose rules had preemptive effect

had expertise and jurisdiction over the subject matter

of those lawsuits. They were the Food and Drug

Administration (over medical devices in Buckman, and

over drug safety in Pliva and Bartlett), and the

Department of Transportation (over car safety in

Geier, and over locomotive parts in Kurns).

The precedents set in those cases cannot apply to

an agency that disclaims expertise and authority over

the subject of the claimed preemption and cannot

apply to the FCC in the instant case. In Sierra Pacific

Holdings, Inc. v. County of Ventura, 204 Cal.App.4th

509, 517 (Cal. App. 2012), a California court wrote that

“We have not found any case holding that state law is

preempted by nonmandatory standards . . . Such

standards are not ‘law’ and are not subject to the

principle of preemption.” Petitioners here have also

found no cases to the contrary.

Moreover, Section 704 says nothing about state

common law; indeed, to the contrary, and Section

601(c)(1) of the TCA provides that State and local laws

shall not be preempted unless expressly so provided:

NO IMPLIED EFFECT—This Act and the

amendments made by this Act shall not be

construed to modify, impair, or supersede

Federal, State, or local law unless expressly so

provided in such Act or amendments.

In City of Rancho Palos Verdes v. Abrams, 544 U.S. 113

(2005), this Court addressed the effect of Section

601(c)(1) on the preemption clause in 47 U.S.C.

§ 332(c)(7)(B)(iv). A property owner sued the city under

42 U.S.C. § 1983 for denial of his application to build a

telecommunications tower on his property, in violation

of Section 704. This Court held that his right to sue

under § 1983 was not preserved under Section

601(c)(1) because Section 704 provides a specific

remedy for violation of its provisions. In so ruling, the

Court confirmed that Section 601(c)(1) preserves

existing remedies for which the TCA provides no

substitute:

We therefore hold that the TCA—by providing

a judicial remedy different from § 1983 in

§ 332(c)(7) itself—precluded resort to § 1983.

544 U.S. at 127. The TCA does not provide a judicial

remedy for persons injured by RF radiation and

therefore does not preclude state court tort actions for

damages.

Virginia Uranium, Inc. v. Warren, 139 S. Ct. 1894

(2019) is instructive, and closely parallel to the instant

case. It was a case, as here, about radiation hazards. In

that case, the Court refused to find preemption of a

state prohibition of uranium mining. “[U]nder the

A[tomic E[nergy] A[ct],” wrote the Court, “ ‘the

promotion of nuclear power is not to be accomplished

“at all costs.” ’ ” Id. at 1908 (quoting Pacific Gas & Elec.

Co. v. State Energy Resources Conservation and

Development Comm’n, 461 U.S. 190, 222 (1983)). So too,

here, the promotion of wireless communications should

not be accomplished at all costs.

The Court in Virginia Uranium refused to “ ‘cut

back on pre-existing state authority outside the

N[uclear] R[egulatory] C[omission]’s jurisdiction’ . . .

[A]n activity like mining [is] far removed from the

NRC’s historic powers.” Id. at 1904 (citation omitted).

So, too, here, human health is outside the FCC’s

jurisdiction and historic power and Section 704 does

not cut back on pre-existing state authority to protect

health.

The Court in Virginia Uranium invoked the

savings clause in the Atomic Energy Act in declining to

read implied preemption: “ ‘Nothing in this section

[that is, § 2021] shall be construed to affect the

authority of any State or local agency to regulate

activities for purposes other than protection against

radiation hazards.’ ” Id. at 1902 (bracketed material in

original). The Court called this “a non-preemption

clause.” Id. (Emphasis in original). So, too, here,

Section 601(c)(1) of the TCA is a non-preemption

clause. It says that state and local laws may not be

preempted unless expressly so provided in the TCA.

There is no express preemption of state tort remedies

for injury in the TCA.

Finally, the Court rejected petitioner Virginia

Uranium’s contention that state regulation of mining

would disrupt the “balance” Congress sought to

achieve between developing nuclear power and protecting health and environment. Id. at 1907. A similar

contention has been put forth to support preemption of

state tort actions for injury by RF radiation, and has

resulted in a conflict in the courts of appeals that needs

resolution.

The Third Circuit, in Farina v. Nokia, 625 F.3d 97

(3rd Cir. 2010), cert. denied, 565 U.S. 928 (2011), ruled

that a class action against wireless providers brought

in state court was preempted, holding that a jury

decision would upset the “balance between safety and

efficiency” that Congress had intended. Id. at 123. The

same argument, under the same set of facts, was

rejected by the Fourth Circuit in Pinney v. Nokia, Inc.,

402 F.3d 430 (4th Cir. 2005), cert. denied, 546 U.S. 998

(2005):

The district court concluded that the Naquin

plaintiffs’ claims are preempted because their

cases stand as an obstacle to “Congress’

objectives of achieving national uniformity in

wireless telecommunications services and

striking a balance between the proliferation of

wireless services and the need to protect the

public from any harmful effects of RF

exposure.” . . . [¶] We conclude that the district

court erred because the [TCA] provides no

evidence of such an objective.

Id. at 457 (citation omitted). In the present case, the

Tenth Circuit, citing case law rather than any wording

in the TCA, held that the TCA “struck a balance”

between preserving “the traditional authority of state

and local governments” and creating “uniform standards governing new telecommunications facilities.”

Santa Fe Alliance, 993 F.3d at 811. App. 12.

It is time for this Court to resolve this division of

opinion in the courts of appeals.

II.

“ENVIRONMENT” DOES NOT MEAN

“HEALTH” IN THE TCA OR ANY OTHER

FEDERAL LAW

In the foregoing section, Petitioners argue that

Section 704 of the TCA (47 U.S.C. § 332(c)(7)(B)(iv)), as

construed to date, violates the First Amendment. The

constitutional question can be avoided, however, if the

word “environment” in Section 704 is given its ordinary

meaning, consistent with the meaning of that word in

every other federal statute in which it occurs. “Environment” has never been interpreted to mean “health”

by any court in any other statute.

The important question of whether “environmental effects” means “health effects” in Section 704

has never been adjudicated.19

In 2000, in Cellular Phone Taskforce v. FCC, Nos. 00-393,

00-407, 00-417 and 00-427, this Court was presented with the

question of whether Section 704 violates the Tenth Amendment.

The Court did not grant certiorari on that question. Since then,

the Court has reviewed challenges under 47 U.S.C. § 332 several

A. Standard of Review

“In determining whether federal law preempts a

state statute, we look to congressional intent. . . . We

begin with the language employed by Congress and

the assumption that the ordinary meaning of that

language accurately expresses the legislative purpose.”

FMC Corp. v. Holliday, 498 U.S. 52, 56-57 (1990).

An act of Congress should not be construed to

violate the Constitution if any other possible construction remains available. Edmond v. United States, 520

U.S. 651, 658 (1997); National Labor Relations Board

v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1977).

B. No Deference Should Be Accorded the

FCC on a Subject over Which It Has No

Jurisdiction

In Chevron U.S.A. v. Natural Resources Defense

Council, 467 U.S. 837 (1984), this Court ruled that a

federal agency’s interpretation of a federal statute that

it administers is entitled to deference, provided the

provision in question falls within the agency’s area of

expertise. In such cases, courts defer to “those with

times, but has never ruled on its constitutionality. See City of

Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005) (no damages

available for violating the TCA); City of Arlington, Tex. v. FCC, 569

U.S. 290 (2013) (FCC interpretation of “reasonable period of time”

is appropriate); and T-Mobile S., LLC v. City of Roswell, Ga., 135

S.Ct. 808 (2015) (any denial of an application for a cell phone

tower must be based on substantial evidence and in writing).

great expertise and charged with the responsibility for

administering the provision.” Id. at 865.

As the FCC has repeatedly and consistently

denied expertise on matters of health and safety, no

deference should be accorded the FCC’s interpretation

of “environmental effects” as meaning “health effects.”

See Inquiry Concerning Biological Effects of Radio

Frequency Radiation When the Use of Radio Frequency

Devices is Authorized, FCC 79-364, ¶ 20, 44 Fed. Reg.

37008, 37011 (June 25, 1979) (“The Commission’s

position is that it has neither the responsibility nor the

authority to establish health and safety radiation

standards.”); see also Guidelines for Evaluating the

Environmental Effects of Radiofrequency Radiation,

ET Docket No. 93-62, Report and Order, ¶ 28, 11 FCC

Rcd. 15123, (1996) (“[T]he Commission has stressed

repeatedly that it is not a health and safety agency . . . ”).

Neither the TCA nor the rest of the FCC’s

authorizing statute, the Communications Act, gives

the FCC any authority over health or environment.

The TCA contains the word “environmental” nowhere

other than in Section 704. The TCA does not contain

the word “environment.” Neither the TCA nor the rest

of the Communications Act uses the word “health” in

connection with RF radiation. Even the RF exposure

guidelines that the FCC issued in 1996 were adopted

not under the authority of the Communications Act

but under the mandate of NEPA, and are procedural

guidelines only that are not enforceable.20

In City of Arlington, Tex. v. F.C.C., 569 U.S. 290,

(2013), this Court confirmed that while general

deference to the FCC’s interpretations of the TCA is

appropriate, id. at 307, “for Chevron deference to apply,

the agency must have received congressional authority

to determine the particular matter at issue in the

particular manner adopted.” Id. at 306. The particular

issue in Arlington, on which this Court deferred to the

FCC, was that agency’s interpretation of what

constitutes a “reasonable period of time” for a city to

act on applications to build telecommunications

facilities. Arlington did not involve issues of health or

the environment.

Congress granted no authority to the FCC in

Section 704 to determine for the nation what

constitutes safe levels of RF radiation. All Congress did

was command the FCC to complete the rulemaking

that it had begun three years earlier in order to satisfy

its procedural obligations under NEPA: “Within 180

days after the enactment of this Act, the Commission

shall complete action in ET Docket 93-62 to prescribe

and make effective rules regarding the environmental

effects of radio frequency emissions.”21

See n.1, supra.

TCA § 704(b).

C. Congress Did Not Intend to Include

“Health” as Part of the Term “Environmental”

As in Virginia Uranium, Congressional intent is to

be found in the text of a law and not its history. This

Court rejected “[e]fforts to ascribe unenacted purposes

and objectives to a federal statute.” 139 S. Ct. at 1907.

“[I]t is our duty to respect not only what Congress

wrote but, as importantly, what it didn’t write.” Id. at

1900. It didn’t write about health in the TCA.

In prohibiting states from adopting stricter

regulations than the FCC regarding the environmental effects of RF radiation, Congress did not intend

to prohibit States and municipalities from exercising

their obligations to protect the public health. Nowhere

in the House or Senate committee reports or in the

Conference Committee Report or anywhere else in the

Congressional Record on the Senate and House bills

that became the TCA does the word “health” appear in

connection with Section 704. If the final bill had said

that States and municipalities could not protect their

citizens’ “health,” it is unlikely the legislators would

have voted for it.

In the ordinary use of the words, “environment” is

external to an organism and “health” is internal.

“Environment” means “the circumstances, objects or

conditions by which one is surrounded,” while “health”

means “the general condition of the body.” MerriamWebster dictionary, www.merriam-webster.com. “Environment” is “[t]he totality of the natural world, often

excluding humans,” while “environmental” is “1.

Relating to or associated with the environment. 2.

Relating to or concerned with the impact of human

activities on the natural world.” The American

Heritage Dictionary, Fifth Edition 596 (2011).

Since the TCA does not define “environment,”

“environmental,” or “environmental effect,” we may

look to other federal statutes for guidance as to what

Congress intended.

The Comprehensive Environmental Response,

Compensation and Liability Act defines “environment”

as: “(A) the navigable waters, the waters of the

contiguous zone, and the ocean waters of which the

natural resources are under the exclusive management authority of the United States under the

Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1801 et seq.], and (B) any other

surface water, ground water, drinking water supply,

land surface or subsurface strata, or ambient air

within the United States or under the jurisdiction of

the United States.” 42 U.S.C. § 9601(8) (bracketed

material in original).

The Clean Air Act defines “adverse environmental

effect” as “any significant and widespread adverse

effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural resources, including

adverse impacts on populations of endangered or

threatened species or significant degradation of

environmental quality over broad areas.” 42 U.S.C.

§ 7412(a)(7).

These definitions do not include the word “health”

or any reference to effects on human beings. When

Congress has meant “health” in a piece of legislation,

it has always said so explicitly. “Health effects” and

“environmental effects” are both used in the Clean

Air Act, and they do not mean the same thing. When

both are referred to, the act uses both terms. Thus, it

refers to substances that “cause adverse effects to

human health or adverse environmental effects,” 42

U.S.C. § 7412(b)(3)(B); 42 U.S.C. § 7412(b)(3)(C); “health

and environmental impacts,” 42 U.S.C. § 7509(d)(2);

“public health or welfare or environmental quality,” 42

U.S.C. § 7609(b). (Emphases added).

The Toxic Substances Control Act refers to “the

health and environmental effects of the relevant

chemical substance,” 15 U.S.C. § 2604(a)(3)(B)(i), and

“information relating to toxicity, persistence, and other

characteristics which affect health and the environment.” 15 U.S.C. § 2602(15)(A)(ii). The Federal Insecticide, Fungicide, and Rodenticide Act refers to the

protection of “health and the environment” throughout. 7 U.S.C. §§ 136(q)(1)(F), 136(q)(1)(G), 136(x),

136w(c)(5), 136w(d)(1), etc. The Resource Conservation

and Recovery Act addresses “environment and health,”

42 U.S.C. § 6901(b). Its purpose is “to protect human

health and the environment,” 42 U.S.C. §§ 6921(d)(2),

(d)(3), (d)(4), (g), etc. Section 7 of the Energy Supply

and Environmental Coordination Act is titled

“Protection of public health and environment.” 15

U.S.C. § 793. The National Environmental Policy Act’s

purpose is to “prevent or eliminate damage to the

environment and biosphere and stimulate the health

and welfare of man.” 42 U.S.C. § 4321. (Emphases

added).

In its recent decision in Environmental Health

Trust v. FCC, the D.C. Circuit found that the FCC’s

guidelines address only health and not environment

(“The Commission also completely failed to acknowledge, let alone respond to, comments concerning the

impact of RF radiation on the environment”22) and

ordered the FCC “to address the impacts of RF

radiation on the environment.”23 The implication of

that court’s statements is that, consistent with its

ordinary meaning and its meaning in every other

federal statute, “environment” does not mean “health.”

D. If “Environment” Is Given Its Ordinary

Meaning, the Constitutional Questions

Raised in This Lawsuit Would Be

Avoided

If “environment” is accorded either its common

definition or its definition in the United State Code,

questions about the constitutionality of Section 704

would be avoided. Citizens would be restored their

rights to notice and an opportunity to be heard on

matters pertaining to their life and liberty, their rights

to speak to and be heard by their elected officials about

threats to their lives and properties, their rights to go

Environmental Health Trust v. FCC, No. 20-1025 at 22

(D.C. Cir. Aug. 13, 2021).

Id. at 31.

to court to ask for a remedy for injuries, and their

rights to compensation for loss of their properties. City,

County, and State officials would be restored their

rights to speak about health, to listen to their

constituents, and to protect the public health, safety

and welfare when making siting decisions and issuing

permits for telecommunications facilities, and when

enacting and amending sections of their land use

ordinances and statutes.

---------------------------------♦---------------------------------

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

THERESA KRAFT

Counsel of Record

822 Little John Drive

Salisbury, MD 21804

(603) 568-2464

tkraft@theresakraft.com

RICHARD I. TARGOW

Post Office Box 1143

Sebastopol, CA 95473

(707) 829-5190

rtargow@sonic.net

Counsel for Petitioners

OCTOBER 25, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.