Opposition Brief — Santa Fe Alliance for Public Health and Safety, et al., Petitioners v. City of Santa Fe, New Mexico, et al.

No. 21-629

In the Supreme Court of the United States

SANTA FE ALLIANCE FOR PUBLIC HEALTH AND

SAFETY, ET AL., PETITIONERS

v.

CITY OF SANTA FE, NEW MEXICO, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Acting Assistant Attorney

General

SCOTT R. MCINTOSH

JACK STARCHER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

Section 704 of the Telecommunications Act of 1996,

Pub. L. No. 104-104, 110 Stat. 151-152, provides that

“[n]o State or local government or 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 [Federal Communications] Commission’s

regulations concerning such emissions.” 47 U.S.C.

332(c)(7)(B)(iv). The questions presented are as follows:

1. Whether Section 704 violates petitioners’ First

Amendment right to petition the government by pursuing claims in court.

2. Whether the term “environmental effects” in Section 704 includes effects on human health.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 8

Conclusion ................................................................................... 19

TABLE OF AUTHORITIES

Cases:

AT & T Wireless PCS, Inc. v. City Council,

155 F.3d 423 (4th Cir. 1998) ............................................... 17

BE&K Constr. Co. v. NLRB, 536 U.S. 516 (2002) ......... 7, 9

Bell v. Wolfish, 441 U.S. 520 (1979) ..................................... 10

Bill Johnson’s Rests., Inc. v. NLRB,

461 U.S. 731 (1983).............................................................. 12

Borough of Duryea v. Guarnieri,

564 U.S. 379 (2011) ............................................................ 9

Bruesewitz v. Wyeth LLC,

562 U.S. 223 (2011) .......................................................... 13

Buckman Co. v. Plaintiffs’ Legal Comm.,

531 U.S. 341 (2001) .......................................................... 13

CTS Corp. v. Waldburger, 573 U.S. 1 (2014)....................... 12

Cellular Phone Taskforce v. FCC,

205 F.3d 82 (2d Cir. 2000), cert. denied,

531 U.S. 1070 (2001).............................................................. 4

Cellular Tel. Co. v. Town of Oyster Bay,

166 F.3d 490 (2d Cir. 1999) ................................................ 17

City of Rancho Palos Verdes v. Abrams,

544 U.S. 113 (2005) ................................................... 2, 3, 14

Cutter v. Wilkinson, 544 U.S. 709 (2005) ......................... 11

Dan’s City Used Cars, Inc. v. Pelkey,

569 U.S. 251 (2013).............................................................. 12

(III)

IV

Cases—Continued:

Page

Department of the Army v. Blue Fox, Inc.,

525 U.S. 255 (1999) .......................................................... 17

English v. General Elec. Co., 496 U.S. 72 (1990) ................ 11

Environmental Health Trust v. FCC,

9 F.4th 893 (D.C. Cir. 2021) .........................................2, 10

Farina v. Nokia Inc.,

625 F.3d 97 (3d Cir. 2010), cert. denied

565 U.S. 928 (2011).............................................................. 15

Firstenberg v. City of Santa Fe,

782 F. Supp. 2d 1262 (D.N.M. 2011),

rev’d on other grounds, 696 F.3d 1018

(10th Cir. 2012) .................................................................... 17

Freeman v. Burlington Broadcasters, Inc.,

204 F.3d 311 (2d Cir.), cert. denied,

531 U.S. 917 (2000).............................................................. 17

Geier v. American Honda Motor Co.,

529 U.S. 861 (2000)........................................................ 11, 13

Guidelines for Evaluating the Envtl. Effects

of Radiofrequency Radiation, In re,

11 FCC Rcd 15,123 (1996), corrected on other

grounds by 1996 WL 434707 (FCC Aug. 1, 1996),

aff ’d, 205 F.3d 82 (2d Cir. 2000), cert. denied,

531 U.S. 1070 (2001)............................................................ 14

Knetsch v. United States, 364 U.S. 361 (1960) .................... 10

Kurns v. Railroad Friction Prods. Corp.,

565 U.S. 625 (2012) .......................................................... 13

Lane v. Pena, 518 U.S. 187 (1996) .................................... 18

Maryland v. Louisiana, 451 U.S. 725 (1981) ..................... 11

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819)............................................. 11

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ...................... 12

Minnesota State Bd. for Cmty. Colls. v. Knight,

465 U.S. 271 (1984).......................................................... 9, 10

V

Cases—Continued:

Page

Mutual Pharm. Co. v. Bartlett,

570 U.S. 472 (2013) .......................................................... 13

Nielsen v. Preap, 139 S. Ct. 954 (2019) ............................... 16

PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) .................. 13

Pinney v. Nokia, Inc.,

402 F.3d 430 (4th Cir.), cert. denied,

546 U.S. 998 (2005).............................................................. 16

Silkwood v. Kerr-McGee Corp.,

464 U.S. 238 (1984).............................................................. 12

Sossamon v. Texas, 563 U.S. 277 (2011) .......................... 18

T-Mobile Ne. LLC v. Town of Ramapo,

701 F. Supp. 2d 446 (S.D.N.Y. 2009) ................................. 17

Taniguchi v. Kan Pac. Saipan, Ltd.,

566 U.S. 560 (2012).............................................................. 16

360º Commc’ns Co. v. Board of Supervisors,

211 F.3d 79 (4th Cir. 2000)................................................ 3

Trudeau v. Federal Trade Comm’n,

456 F.3d 178 (D.C. Cir. 2006) ......................................... 18

United Parcel Serv., Inc. v. Mitchell,

451 U.S. 56 (1981) ............................................................... 10

Virginia Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019) ................................................... 14, 15

Wyoming v. United States,

279 F.3d 1214 (10th Cir. 2002) ........................................... 18

Constitutions, statutes, regulations, and rule:

U.S. Const.:

Art. VI, Cl. 2 (Supremacy Clause) ................................. 11

Amend. I ................................................................. 5, 6, 7, 9

Amend. XIV (Due Process Clause) ............................. 5, 6

National Environmental Policy Act of 1969,

42 U.S.C. 4321 et seq. ........................................................ 2

VI

Statutes, regulations, and rule—Continued:

Page

Telecommunications Act of 1996,

Pub. L. No. 104-104, 110 Stat. 56 ...................................... 2

Pmbl., 110 Stat. 56 ............................................................. 3

§ 601(c)(1), 110 Stat. 143 ................................................. 15

§ 704, 110 Stat. 151-152 .......................................... passim

5 U.S.C. 702 .....................................................................8, 18

42 U.S.C. 1983 ........................................................................ 15

42 U.S.C. 2021(k) ................................................................... 15

47 U.S.C. 301 ...................................................................2, 13

47 U.S.C. 302a .................................................................2, 13

47 U.S.C. 303(a)-(f ) .........................................................2, 13

47 U.S.C. 332(c)(7) ............................................................... 3

47 U.S.C. 332(c)(7)(A) .......................................................... 3

47 U.S.C. 332(c)(7)(B) .......................................................... 3

47 U.S.C. 332(c)(7)(B)(i)(I) .................................................. 3

47 U.S.C. 332(c)(7)(B)(ii) ..................................................... 3

47 U.S.C. 332(c)(7)(B)(iii) .................................................... 3

47 U.S.C. 332(c)(7)(B)(iv) ........................... 3, 4, 7, 13, 16, 17

47 U.S.C. 332(c)(7)(B)(v) ................................................... 3, 15

Wireless Consumer Advanced Infrastructure

Investment Act, 2018 NMSA:

§ 63-9I-4(C) ........................................................................ 5

§ 63-9I-5(B) ........................................................................ 5

47 C.F.R.:

Section 1.1307(b) ............................................................ 2

Section 1.1308 ................................................................. 2

Section 1.1314 .................................................................... 2

Section 1.1315 .................................................................... 2

Section 1.1317 .................................................................... 2

Section 1.1319 .................................................................... 2

Fed. R. Civ. P. 12(b)(6)............................................................ 6

VII

Miscellaneous:

Page

Black’s Law Dictionary (11th ed. 2019) ............................. 16

Letter from Carol M. Browner, EPA,

to Reed E. Hundt, Chairman,

FCC (July 25, 1996) ............................................................ 14

Letter from Margo T. Oge, Dir.,

Office of Radiation & Indoor Air, EPA,

to Thomas P. Stanley, Chief Eng’r,

Office of Eng’g & Tech., FCC

(Nov. 16, 1993) ..................................................................... 14

In the Supreme Court of the United States

No. 21-629

SANTA FE ALLIANCE FOR PUBLIC HEALTH AND

SAFETY, ET AL., PETITIONERS

v.

CITY OF SANTA FE, NEW MEXICO, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-36) is

reported at 993 F.3d 802. The opinion and order of the

district court (Pet. App. 39-70) is not published in the

Federal Supplement but is available at 2020 WL

2198120.

JURISDICTION

The judgment of the court of appeals was entered on

March 30, 2021. A petition for rehearing was denied on

May 27, 2021 (Pet. App. 37-38). The petition for a writ

of certiorari was filed on October 25, 2021 (a Monday).

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. a. The Federal Communications Commission (FCC

or Commission) has broad authority to regulate the use

(1)

2

of radio communications and the operation of equipment

capable of producing electromagnetic energy. 47 U.S.C.

301, 302a, 303(a)-(f ). Under the National Environmental

Policy Act of 1969, 42 U.S.C. 4321 et seq., the Commission

has adopted regulations that specify safe radio-frequency

exposure limits. See, e.g., Environmental Health Trust

v. FCC, 9 F.4th 893, 900-901 (D.C. Cir. 2021). Under

those regulations, before the FCC authorizes the construction or use of any wireless facility, the applicant

must first determine whether the facility will expose people to radio-frequency emissions in excess of those limits.

47 C.F.R. 1.1307(b). If no such exposure will occur, then

no further action is required. But if the facility will result

in such exposure, the applicant must prepare an environmental assessment describing the facility’s likely effects.

Ibid. An environmental assessment is a detailed accounting of the expected consequences of a specific action that may have a significant environmental impact—

in this case, a Commission authorization of a transmitter

or facility that exceeds the radio-frequency guidelines.

See 47 C.F.R. 1.1308. The FCC then evaluates the environmental assessment—and potentially, an environmental impact statement—to determine whether and under

what conditions to allow construction of the facility. See

47 C.F.R. 1.1314, 1.1315, 1.1317, 1.1319.

b. The Telecommunications Act of 1996 (TCA), Pub.

L. No. 104-104, 110 Stat. 56, created a uniform system of

regulations for the wireless industry and vested the FCC

with enforcement and regulatory authority over that

scheme. In enacting the TCA, Congress sought to “promote competition and higher quality in American telecommunications services and to ‘encourage the rapid deployment of new telecommunications technologies.’ ”

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

3

115 (2005) (quoting TCA, Pmbl., 110 Stat. 56). “One of

the means by which it sought to accomplish these goals

was reduction of the impediments imposed by local governments upon the installation of facilities for wireless

communications.” Ibid.

The TCA did not entirely divest state and local governments of their traditional “control over the siting of

towers and other facilities that provide wireless services.” 360° Commc’ns Co. v. Board of Supervisors, 211

F.3d 79, 86 (4th Cir. 2000). Rather, the TCA states that,

“[e]xcept as provided in [47 U.S.C. 332(c)(7)], nothing in

[the statute] shall limit or affect the authority of a State

or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.” 47 U.S.C.

332(c)(7)(A).

The limitations on local zoning authority appear in 47

U.S.C. 332(c)(7)(B). Among other things, the TCA precludes state and local governments from “unreasonably

discriminat[ing] among providers of functionally equivalent services”; requires that state and local governments

act on wireless-facility applications “within a reasonable

period of time”; and mandates that decisions denying

such applications “be in writing and supported by substantial evidence contained in a written record.” 47

U.S.C. 332(c)(7)(B)(i)(I), (ii), and (iii). In addition, the

TCA provides that any suit to challenge a state or local

government’s “final action or failure to act” in such matters must be brought in a “court of competent jurisdiction” within 30 days. 47 U.S.C. 332(c)(7)(B)(v); see generally City of Rancho Palos Verdes, 544 U.S. at 116.

This case concerns the limitation in 47 U.S.C.

332(c)(7)(B)(iv). That provision, which the parties refer

to as “Section 704,” e.g., Pet. 5, states:

4

No State or local government or 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.

42 U.S.C. 332(c)(7)(B)(iv).

Although Section 704 limits state and local zoning authorities, it does not dictate the outcome of any state or

local zoning decision. See Cellular Phone Taskforce v.

FCC, 205 F.3d 82, 96 (2d Cir. 2000), cert. denied, 531

U.S. 1070 (2001). Rather, “[t]he only onus placed on

state and local governments exercising their local

power is that they may not regulate personal wireless

service facilities that conform to the FCC Guidelines on

the basis of environmental effects of [radio-frequency]

radiation.” Ibid.

2. a. Wireless facilities, such as cell towers and antennae, emit radio-frequency waves to connect cell

phones to the broader telecommunications network for

calls and internet access. See Pet. App. 77-79, ¶¶ 4-6; id.

at 99-100, ¶¶ 34-35. Petitioners are individuals and an

organization representing individuals who claim to have

been injured by radio-frequency emissions due to the

placement of wireless facilities in their communities, and

who fear further proliferation of wireless facilities in and

around Santa Fe, New Mexico. See id. at 91-96, ¶¶ 2327. Petitioners are particularly concerned with wireless

facilities that may be located in public rights of way, including streets and sidewalks. See id. at 77, ¶ 3; id. at

100-106, ¶¶ 37-45.

Petitioners sued the City of Santa Fe, the Attorney

General of New Mexico, and the United States. See Pet.

5

App. 75. Petitioners’ 22-count amended complaint focuses on Section 704 as well as three state and local decisions: (1) a 2018 New Mexico law, the Wireless Consumer Advanced Infrastructure Investment Act, 2018

NMSA §§ 63-9I-4(C), 63-9I-5(B), which provides that

radio-frequency-emitting antennae in the public rights of

way are not subject to land-use review, see Pet. App. 77,

¶ 3; (2) a Santa Fe ordinance (known as Chapter 27) that

repealed many notice, hearing, and application requirements for wireless facilities in public rights of way, see

id. at 102-105, ¶¶ 41-43; and (3) proclamations by the

Mayor of Santa Fe that suspended the Land Development Code (including public-notice requirements) for

wireless facilities on city-owned property, see id. at 107108, ¶¶ 47-48. Petitioners allege that these laws and decisions taken together “remove all public protection from

injurious facilities in the public rights-of-way and deprive injured parties of any remedy for their injuries.”

Id. at 111, ¶ 56; see generally id. at 40-41.

Petitioners’ amended complaint included claims under state, local, and federal law. As relevant here, the

amended complaint asserted that Section 704 violates

both the First Amendment (Counts 4 and 19) and the

Due Process Clause (Count 18). See Pet. App. 117-118,

¶¶ 76-81; id. at 137-138, ¶¶ 154-158; id. at 139-141, ¶¶ 159165. Petitioners asked the court to declare Section 704

unconstitutional and to enjoin “the United States, its officers, agents, servants, employees, and attorneys” from

enforcing it. Id. at 146-147, ¶¶ 19-20, 26; see id. at 143144, ¶¶ 175-178. The amended complaint also included a

“cause of action” alleging that the term “environment” in

Section 704 does not mean “health,” id. at 135-137,

¶¶ 149-157 (Count 17), and petitioners sought a declaration to that effect, id. at 146, ¶ 18.

6

b. The district court dismissed the claims against all

defendants. Pet. App. 39-70. As relevant here, the court

determined that petitioners had standing to assert their

constitutional claims regarding Section 704, but that

“none of [petitioners’] federal claims state a claim for relief.” Id. at 68. The court noted that “other courts have

consistently dismissed similar claims.” Id. at 68-69. 1

3. The court of appeals affirmed the district court’s

order in part and remanded in part for the limited purpose of allowing the district court to dismiss some claims

without prejudice for lack of standing. Pet. App. 32-33.

a. With respect to the claims against the United

States, the court of appeals first held that petitioners

lacked standing to pursue their claim that Section 704 violates the Due Process Clause by preempting further

state and local regulation of radio-frequency emissions.

Pet. App. 23-24. The court explained that, in order for

petitioners’ injuries to be fairly traceable to Section 704,

petitioners would need to plausibly allege that, “in the

absence of ” Section 704, “New Mexico and/or Santa Fe”

would regulate “radio-frequency emissions to a greater

degree than the FCC does.” Id. at 23; see id. at 18-19.

The court determined that petitioners’ allegations did

not “make such an inference plausible.” Id. at 23.

The court of appeals next determined that petitioners

had standing to bring their First Amendment challenges

to Section 704, but it affirmed the district court’s dismissal of those claims under Federal Rule of Civil Procedure

Although New Mexico had not moved to dismiss, the district

court “acted as though such a motion” was pending. Pet. App. 9 n.3.

In addition, although petitioners had moved for a preliminary injunction, the court dismissed the suit without ruling on that motion

or considering the supporting affidavits and exhibits that petitioners had submitted. See id. at 8-9 n.3.

1

7

12(b)(6). Pet. App. 26-27, 29-32. The court of appeals

held that petitioners had failed to state a claim that Section 704 violated their right to free speech, because

“nothing in [Section 704] * * * punishes, restricts, or

prohibits any individual from speaking against radio-frequency emissions.” Id. at 31.

The court of appeals likewise rejected petitioners’

claim that Section 704 violates their First Amendment

right to petition the government. The court explained

that, although petitioners had alleged that the TCA (in

conjunction with the challenged state and local actions)

would “prevent” them “from succeeding on any of [their]

efforts to petition the Santa Fe government regarding

the health effects of radio-frequency emissions,” the

First Amendment does not “ ‘speak in terms of successful

petitioning.’ ” Pet. App. 30 (quoting BE&K Constr. Co. v.

NLRB, 536 U.S. 516, 532 (2002)). Rather, “the case law

uniformly rejects the contention that the First Amendment guarantees any success when petitioning.” Ibid.

The court concluded that petitioners’ right-to-petition

claim was “frivolous” because nothing in the TCA “preclude[s] any individual from, or penalize[s] any individual

for, petitioning the government regarding radiofrequency emissions.” Ibid.

In a footnote, the court of appeals observed that

Count 17 of petitioners’ complaint had “sought a declaration that the TCA did not preclude a locality from considering ‘health’ effects when approving or denying the

placement of telecommunications facilities because impacts on human health are not an ‘environmental effect’

within” the meaning of 47 U.S.C. 332(c)(7)(B)(iv). Pet.

App. 6 n.1. The court stated that, “[t]o the extent Count

Seventeen advances a claim for relief rather than a mere

legal argument supporting [petitioners’] other claims

8

against the TCA, it is not a constitutional claim, for it

does not invoke any constitutional provision.” Ibid. The

court did not further address that issue.

b. Judge Lucero filed a concurring opinion. Pet. App.

33-36. Judge Lucero explained that he would have found

standing for all of petitioners’ claims regarding the TCA

and would have affirmed the district court’s dismissal of

those claims on sovereign-immunity grounds. Ibid. He

explained that the only potentially relevant waiver of

sovereign immunity for petitioners’ claims is 5 U.S.C.

702, which applies to “[a]n action in a court of the United

States seeking relief other than money damages and

stating a claim that an agency or an officer or employee

thereof acted or failed to act in an official capacity or under color of legal authority.” Pet. App. 35 (citation and

emphasis omitted; brackets in original). Judge Lucero

observed that “[n]owhere in [petitioners’] claims is it alleged that any agency or officer of the United States

acted or failed to act.” Ibid. Instead, “[t]he named federal defendant is the United States in its entirety,” and

“there is no allegation that the FCC played any role in

the events that led to this suit.” Ibid.

c. Petitioners filed a petition for panel rehearing and

rehearing en banc. The court of appeals denied the petition without any judge calling for a response. Pet. App.

37-38.

ARGUMENT

Petitioners’ amended complaint asserted several

challenges to Section 704 of the TCA. In this Court, however, petitioners contend only that (1) Section 704 infringes their First Amendment right to petition the government (and, in particular, their right of access to the

courts), and (2) the provision does not bar localities from

9

considering “health” effects of radio-frequency emissions when regulating the placement of telecommunications facilities. See Pet. i-ii, 4, 32. Those arguments lack

merit, and the decision below does not conflict with any

decision of this Court or another court of appeals. Even

if petitioners’ arguments otherwise warranted this

Court’s review, this case would not be an appropriate vehicle for considering them because petitioners’ claims

against the United States are barred by sovereign immunity. Further review is not warranted.

1. a. The court of appeals correctly rejected petitioners’ argument that Section 704 violates their First

Amendment right to petition the government for a redress of grievances. See Pet. App. 29-31. “The right to

petition allows citizens to express their ideas, hopes, and

concerns to their government and their elected representatives.” Borough of Duryea v. Guarnieri, 564 U.S.

379, 388 (2011). But “the text of the First Amendment

[does not] speak in terms of successful petitioning—it

speaks simply of ‘the right of the people . . . to petition

the Government for a redress of grievances.’ ” BE&K

Constr. Co. v. NLRB, 536 U.S. 516, 532 (2002). Because

nothing in Section 704 “preclud[es] any individual from,

or penaliz[es] any individual for, petitioning the government regarding radio-frequency emissions,” it does not

infringe the right to petition. Pet. App. 30. And even if

petitioners cannot successfully petition the city of Santa

Fe to enact more demanding radio-frequency emissions

standards, they remain free to “seek relief from Congress or the FCC as to allowable [radio-frequency emission] levels.” Id. at 64. The Constitution does not entitle

petitioners to more. See, e.g., Minnesota State Bd. for

Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1984).

10

Indeed, recent events confirm that Section 704 does not

preclude petitioners from petitioning the government—

including by seeking relief in court. As petitioners

acknowledge (Pet. 17), individuals who are concerned

about the health effects of radio-frequency emissions recently petitioned the D.C. Circuit for review of an FCC

decision declining to amend the Commission’s radiofrequency emissions standards. Environmental Health

Trust v. FCC, 9 F.4th 893, 900 (2021). The D.C. Circuit

ultimately granted those petitions in part and remanded

without vacatur for “the Commission to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radiofrequency radiation unrelated to cancer.”

Id. at 914. 2

b. Petitioners’ primary contention in this Court (Pet.

24-32) focuses on the question whether Section 704, in

addition to expressly preempting state and local governments from acting based on the health effects of radiofrequency emissions, impliedly preempts certain statePetitioners’ amici take issue with the Tenth Circuit’s free-speech

holding. 289 Orgs. & 34 Individuals Amici Br. 16-17. But because

petitioners chose not to raise the free-speech claim in their petition,

see Pet. i, ii, 4, this Court should not consider it, see, e.g., United

Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 60 n.2 (1981); Bell v. Wolfish, 441 U.S. 520, 531 n.13 (1979); Knetsch v. United States, 364 U.S.

361, 470 (1960). In any event, the lower courts correctly rejected

petitioners’ free-speech claim because Section 704 does not prohibit

or regulate speech at all. See Pet. App. 31-32, 62-64. While amici

complain (Br. 17) that local government officials are unable to act in

response to petitioners’ speech, “[n]othing in the First Amendment

or in this Court’s case law interpreting it suggests that the rights to

speak, associate, and petition require government policymakers to

listen or respond to individuals’ communications on public issues.”

Minnesota State Bd. for Cmty. Colls., 465 U.S. at 285.

2

11

law tort actions that could be viewed as an end-run

around that express preemption. That issue is not presented here. The court of appeals did not expressly address it. See Pet. App. 29-31; see also, e.g., Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005) (declining to consider

argument not addressed by the court of appeals because

this Court is “a court of review, not of first view”). And

this is not a tort suit: Petitioners sued the United States,

the City of Santa Fe, and the Attorney General of New

Mexico for declaratory and injunctive relief; they did not

seek damages from any party alleged to have emitted radiation. See Pet. App. 144-148 (requests for relief). If

petitioners bring tort claims against such parties and a

court holds the claims to be preempted, petitioners can

challenge that holding at that time.

In any event, preemption of state tort law would not

violate petitioners’ right of access to the courts. The Supremacy Clause provides that the laws of the United

States “shall be the supreme Law of the Land * * * any

Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.” U.S. Const. Art. VI, Cl. 2.

Accordingly, it has long been settled that state laws that

conflict with federal law are “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746 (1981); see McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819).

And even in the absence of an express preemption provision, state law is “pre-empted to the extent that it actually conflicts with federal law,” including when “state

law ‘stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.’ ” English v. General Elec. Co., 496 U.S. 72, 79

(1990) (citation omitted); see, e.g., Geier v. American

Honda Motor Co., 529 U.S. 861, 869 (2000). In the tort-

12

law sphere as elsewhere, the fact that a preemptive federal statute alters the applicable rule of decision does

not mean that it deprives any litigant of his right to access the courts.

Petitioners’ contrary arguments lack merit. Petitioners cite (Pet. 25-27) several cases in which this

Court has described or applied the presumption against

preemption, which instructs that “when the text of a

pre-emption clause is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that

disfavors preemption,’ ” particularly when the provision

operates in an area that traditionally falls within the

States’ police powers. CTS Corp. v. Waldburger, 573

U.S. 1, 19 (2014) (opinion of Kennedy, J.) (citation omitted); see Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S.

251, 265 (2013); Medtronic, Inc. v. Lohr, 518 U.S. 470,

488 (1996) (opinion of Stevens, J.); Silkwood v. KerrMcGee Corp., 464 U.S. 238, 251 (1984); Bill Johnson’s

Rests., Inc. v. NLRB, 461 U.S. 731, 742-743 (1983). But

that presumption does not suggest that it is “constitutionally infirm,” Pet. 25, for Congress to preempt state

law, even in areas traditionally regulated by the States.

The presumption against preemption is not a constitutional limit on Congress’s powers, but is simply a tool

for discerning congressional intent where a statute is

“susceptible of more than one plausible reading.” CTS

Corp., 573 U.S. at 19. Although this Court will not

lightly conclude that Congress intended broad preemption of state law, nothing in the Constitution forbids

Congress from choosing that course.

Indeed, as petitioners acknowledge (Pet. 27-28), this

Court has repeatedly held that Congress may preempt

state tort actions to ensure that state courts do not do via

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common-law tort liability what States and local governments are barred from doing by legislation. See, e.g.,

Mutual Pharm. Co. v. Bartlett, 570 U.S. 472, 476 (2013);

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

637-638 (2012); PLIVA, Inc. v. Mensing, 564 U.S. 604,

624 (2011); Bruesewitz v. Wyeth LLC, 562 U.S. 223, 243

(2011); Buckman Co. v. Plaintiffs’ Legal Comm., 531

U.S. 341, 348 (2001); Geier, 529 U.S. at 866. As petitioners further acknowledge (Pet. 27-28), many of those decisions found state tort actions preempted “even in the

absence of a federal substitute remedy.”

Petitioners’ attempts to distinguish those cases fail.

Petitioners observe (Pet. 28) that “the regulatory agencies whose rules had preemptive effect [in those cases]

had expertise and jurisdiction over the subject matter

of those lawsuits.” But here too, Congress has authorized the FCC to regulate devices and facilities that produce radio-frequency emissions, see 47 U.S.C. 301, 302a,

303(a)-(f ), and Congress has expressly precluded state

and local governments from imposing radio-frequency

emissions standards that differ from those the FCC has

established, 47 U.S.C. 332(c)(7)(B)(iv).

Petitioners alternatively suggest (Pet. 28) that this

case is distinguishable from this Court’s prior decisions

because the FCC has “disclaim[ed] expertise and authority” over the subject of radio-frequency emissions.

But even assuming that an agency could “disclaim” authority over a subject that Congress has expressly entrusted to it, petitioners are wrong to assert that the

FCC has done so with respect to radio-frequency emissions. Petitioners highlight (Pet. 13) the fact that, when

the Commission adopted its radio-frequency emission

standards in 1996, it “place[d] special emphasis on the

recommendations and comments of Federal health and

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safety agencies,” including the Environmental Protection Agency (EPA), “because of their expertise and

their responsibilities with regard to health and safety

matters.” In re Guidelines for Evaluating the Envtl.

Effects of Radiofrequency Radiation, 11 FCC Rcd

15,123, 15,135 (1996), corrected on other grounds by

1996 WL 434707 (FCC Aug. 1, 1996), aff ’d, 205 F.3d 82

(2d Cir. 2000), cert. denied, 531 U.S. 1070 (2001). But

acknowledging the expertise of other agencies and

heeding their recommendations does not constitute a

disavowal of the FCC’s authority to regulate. 3

c. Petitioners also cannot show that the decision below conflicts with any decision of this Court or of another

court of appeals.

i. Petitioners suggest (Pet. 28-31) that the decision

below is in tension with this Court’s decisions in City of

Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005),

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

(2019). Petitioners observe (Pet. 28-29) that the TCA

contains a savings provision, which states that the statute “shall not be construed to modify, impair, or supersede Federal, State, or local law unless expressly so

Petitioners suggest (Pet. 10-11, 13 & n.11) that EPA previously

took the view that radio-frequency emissions are unsafe at any level.

But in the runup to the 1996 rulemaking, EPA stated that the majority of studies showed that “no significant health effects are associated with chronic, low-level exposure to [radio-frequency] radiation.” Letter from Margo T. Oge, Dir., Office of Radiation & Indoor

Air, EPA, to Thomas P. Stanley, Chief Eng’r, Office of Eng’g &

Tech., FCC, Encl. 4-5 (Nov. 16, 1993) (on file with the Office of the

Solicitor General). EPA subsequently determined that the FCC’s

exposure limits had “addresse[d]” EPA’s “concerns about adequate

protection of public health.” Letter from Carol M. Browner, EPA,

to Reed E. Hundt, Chairman, FCC (July 25, 1996) (on file with the

Office of the Solicitor General).

3

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provided,” § 601(c)(1), 110 Stat. 143. They note (Pet. 29)

that in City of Rancho Palos Verdes, this Court held

that, notwithstanding the savings clause, the express

judicial remedy in 47 U.S.C. 332(c)(7)(B)(v) precluded a

property owner from suing a city under 42 U.S.C. 1983

based on the denial of a facility application. Petitioners

suggest that the result here should be different because

“[t]he TCA does not provide a judicial remedy for persons injured by [radio-frequency] radiation.” Pet. 29.

But because petitioners do not assert tort claims arising

from radio-frequency exposure, the application of the

savings clause to such claims is not at issue here. Nothing in the decision below conflicts with City of Rancho

Palos Verdes.

Petitioners’ reliance (Pet. 29-31) on Virginia Uranium is likewise misplaced. In determining that the

Atomic Entergy Act (AEA) did not preempt a Virginialaw ban on uranium mining, the plurality in that case

noted the AEA’s inclusion of a savings clause. Virginia

Uranium, 139 S. Ct. at 1902 (discussing 42 U.S.C.

2021(k)). But petitioners ignore the most salient difference between the AEA and Section 704. “Unlike many

federal statutes,” including Section 704, “the AEA contains no provision preempting state law in so many

words.” Ibid. Thus, nothing in Virginia Uranium suggests that the TCA’s savings provision necessarily

shields state-law tort suits—which are not at issue

here—from the express preemption provision in Section 704.

ii. Petitioners are also wrong in suggesting (Pet. 3132) that this Court should grant review to resolve an asserted conflict between the Third Circuit’s decision in

Farina v. Nokia Inc., 625 F.3d 97 (2010), cert. denied,

565 U.S. 928 (2011), and the Fourth Circuit’s decision in

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Pinney v. Nokia, Inc., 402 F.3d 430, cert. denied, 546

U.S. 998 (2005). Any conflict between those decisions is

not implicated here, because those decisions considered

different legal authorities and a different preemption issue. Farina and Pinney addressed whether the FCC’s

regulations of radio-frequency emissions from cell

phones preempted certain state-law tort claims. This

case, by contrast, concerns whether Section 704

preempts state and local decisions regarding placement

of wireless facilities.

2. Petitioners contend (Pet. 33-40) that Section 704’s

reference to “the environmental effects of radio frequency emissions,” 47 U.S.C. 332(c)(7)(B)(iv), does not

encompass the health effects of radio-frequency emissions. That argument lacks merit.

In asserting that the word “environmental” should

be interpreted to exclude “health,” petitioners invoke

principles of constitutional avoidance. See Pet. 32, 3940. But that canon comes into play only “when a serious

doubt is raised about the constitutionality of an act of

Congress.” Nielsen v. Preap, 139 S. Ct. 954, 971 (2019)

(brackets, citation, and internal quotation marks omitted). As discussed above, construing Section 704’s

preemptive scope to reach health effects would raise no

serious doubt about the statute’s constitutionality.

Because the term “environmental effects,” 47 U.S.C.

332(c)(7)(B)(iv), is “undefined” in the TCA, courts

should “give the term its ordinary meaning,” Taniguchi

v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012). The

term “environmental effects” is commonly understood

to include the “natural or artificial disturbance of the

physical, chemical, or biological components that make

up the environment.” Pet. App. 67 (quoting Black’s Law

Dictionary 675 (11th ed. 2019)). Consistent with that

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definition, numerous courts “have held the term ‘environmental effects’ includes effects on human health.”

Ibid. (citing Freeman v. Burlington Broadcasters, Inc.,

204 F.3d 311, 325 (2d Cir.), cert. denied, 531 U.S. 917

(2000); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d

490, 494 n.3 (2d Cir. 1999); Firstenberg v. City of Santa

Fe, 782 F. Supp. 2d 1262, 1271 (D.N.M. 2011), rev’d on

other grounds, 696 F.3d 1018 (10th Cir. 2012); T-Mobile

Ne. LLC v. Town of Ramapo, 701 F. Supp. 2d 446, 460

(S.D.N.Y. 2009)); see AT & T Wireless PCS, Inc. v. City

Council, 155 F.3d 423, 431 n.6 (4th Cir. 1998) (noting

that “health concerns from radio emissions” are “preclude[d]” by 47 U.S.C. 332(c)(7)(B)(iv)).

Petitioners point out (Pet. 37-38) that certain other

statutes define the term “environment” more narrowly.

But petitioners draw the wrong lesson from those definitions. While other United States Code provisions give

the term “environment” narrow statute-specific meanings, the TCA includes no comparable limiting definition of the term “environmental effects.” The term

therefore carries its ordinary meaning, which encompasses effects on human health.

3. Even if petitioners’ claims regarding Section 704

otherwise warranted this Court’s review, this case would

be a poor vehicle for considering them. As the United

States argued below—and as the concurring judge in the

court of appeals agreed—petitioners’ claims against the

United States are barred by sovereign immunity.

“Absent a waiver, sovereign immunity shields the

Federal Government and its agencies from suit.” Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 260

(1999) (citation omitted). Neither the “[g]eneral jurisdictional statutes such as 28 U.S.C. § 1331,” nor the “declaratory judgment statute, 28 U.S.C. § 2201,” constitutes

18

such a waiver. Wyoming v. United States, 279 F.3d

1214, 1225 (10th Cir. 2002). And “a waiver of sovereign

immunity ‘will be strictly construed, in terms of its scope,

in favor of the sovereign.’ ” Sossamon v. Texas, 563 U.S.

277, 285 & n.4 (2011) (quoting Lane v. Pena, 518 U.S. 187,

192 (1996)).

As Judge Lucero explained, “the only potentially relevant exception to” sovereign immunity for petitioners’

claims is that contained in 5 U.S.C. 702. Pet. App. 35.

That provision waives sovereign immunity for “[a]n action in a court of the United States seeking relief other

than money damages and stating a claim that an agency

or an officer or employee thereof acted or failed to act in

an official capacity or under color of legal authority.”

Ibid. (quoting 5 U.S.C. 702) (emphasis omitted). Yet

“[n]owhere in [petitioners’] claims is it alleged that any

agency or officer of the United States acted or failed to

act.” Ibid. Thus, “[u]nder the plain text of § 702, [petitioners’] claims do not fit within that waiver of sovereign

immunity.” Ibid.; see Trudeau v. Federal Trade

Comm’n, 456 F.3d 178, 187 (D.C. Cir. 2006) (stating that

the relevant portion of Section 702 “refer[s] to a claim

against an ‘agency’ and hence waives immunity only

when the defendant falls within that category”).

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Acting Assistant Attorney

General

SCOTT R. MCINTOSH

JACK STARCHER

Attorneys

JANUARY 2022