Amicus Curiae Brief — Gonzalez, In re (No. 06-175)
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No. 06-175 3
In THE
Supreme Court of the United States.
In Re MARIA GONZALEZ, individually and as mother
and legal guardian of her daughters TARA GONZALEZ
(age 14) and NICOLE GONZALEZ (age 8)
Petitioner.
ON PETITION FOR WRIT OF MANDAMUS TO THE UNITED STATES
Court OF APPEALS FOR THE SECOND CIRCUIT
BRIEF OF HEALTHY SCHOOLS NETWORK, INC.
- AS AMICUS CURIAE IN SUPPORT OF
PETITIONER
DANIEL J. SULLIVAN
Counsel of Record
260 Madison Avenue, 17th Floor
New York, New York 10016
(212) 753-1400
Attorney for Healthy Schools
Network, Inc. as Amicus Curiae
DaTE: SEPTEMBER 5, 2006
QUESTION PRESENTED ADDRESSED BY
AMICUS CURIAE
Should the Federal Communications Commission
(“FCC”), in launching a major new program that will risk
biological harm to vulnerable children, be able to continue
to ignore the National Environmental Policy Act
(“NEPA”) requirement that an environmental impact
statement (“EIS”) be prepared for all major governmental
undertakings simply because scientific warnings of health
hazards have not reached the stage of definitively
establishing harm to humans?
Should the FCC be excused from performing an NEPA-
- mandated EIS just because a multitude of ad hoc licensing
and site-specific reviews are available, as the so called
“functional equivalent” of an EIS, which (a) impose new
costs on local citizens and governments, (b) are dependant
on challenges by potential victims who most often would
not know of the risk, and (c) would be based on the
scientifically questionable assumption that no biological
harm is being caused by long term radio-frequency (“RF”)
radiation until the certainty of harm is definitively
established?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW
ADDRESSED BY AMICUS CURIAE.............:csscssssssesseses i
TABLE OF CITED AUTHORITIES .................. peaetevovnces IV
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DESCRIPTION AND INTEREST OF AMICUS CURAE.1
THE PETITION FOR MANDAMUS SHOULD BE
RNP E Mar sinpitihsipaubtaminacishnissichdiieiniciaiebietanastunsediinvaiseanites 4
A. Existing Scientific Warnings of Harm from Long
Term Exposure to RF Radiation Justify Concern
about the FCC’s Launch of a New Program
OE Ee VOI vic cesisicsctvcceseresessttncsvsesiezonsee 4
B. The Potential for RF Radiation Harm Is Greater for
On I ee rieeeeuete 11
C. Precaution Dictates the Need for EIS an EIS. ...... 13
D. An EIS is Necessary Because There is No Good
i iisiistaitcictncutintigciesantniadnasectnenociaemes 17
E. The Need for an EIS Is a National Health Issue so
Significant It Should Not be Avoided by
Unrealistic Procedural Obstacles .......................... 19
eR eT tistecna shicesedeieaddesttasaseenisbosedilaricatsnteteametbabieoeante 20
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APPENDIX A - Areas of interest of the Healthy Schools
PIR: Sic siciicvndasntichiescuneelaaiettebicaicaicen tacked andl 21
APPENDIX B -— Specific language from certain citations
NG i ciinisncecdscctevcietiincbininchinkssdeemietsiectandssbesuaiwinatantobcatie 22
APPENDIX C — Policy 7 of the New York State Board of
Regents Advisory Committee on Environmental Quality
of Schools Report of the New York State Board of
Regents on the Environmental Quality of Schools, The
University of the State of New York, The State Education
SITET FOYE ccissstisesessvscsisisiesttcsinisssvonenanaibiiletse 23
APPENDIX D —- Principle 15 of the United Nations
Environment Programme conference in Rio de Janeiro in
APPENDIX E — Policy Statement # 200011, American
Public Health Association (APHA), contained in the
American Journal of Public Health, Vol. 91, No. 3, pp.
PIPE cicada scsdndiseits cdsaaddteanid ividantiatetadesijuabegiiageice ation ia: 25
iV
TABLE OF CITED AUTHORITIES
CASES
Cellular Phone Taskforce v. FCC,
I sadevisnvtdsausienexcasereaes 16, 18, 19-20
EMR Network v. FCC, 391 F. 3d 269(D. C. Cir. 2004) ..18
STATUTES & REGULATIONS
National Environmental Policy Act of 1969 (NEPA) I, 20
OTHER AUTHORITIES
APHA --American Public Health Association -- Policy
Statement #200011, The Precautionary Principle and
Children’s Health, APHA Policy Statements adopted by
the Governing Council of APHA; 1948-present,
cumulative, Washington D.C., November 15, 2000; cited
in text as “APHA Policy Statement”................-..0+00-
NEILL i ne ARONA OLE EEE Pe 14, n. 12 15, n.14, App. E
Barnett, C.', Paulson J, Who’s in Charge of Protecting
Children’s Health at School? (Healthy Schools Network,
Bernstein, T., Building Healthy, High Performance
Schools: A Review of Selected State and Local Initiatives
(Environmental Law Institute, 2003); cited in text as
a RRS RARER ce rss a OA 14,n. 11
' Claire Barnett participated in the preparation of this brief.
Vv
Bernstein T., Healthier Schools: A Review of State Policies for
Improving Indoor Air Quality (Environmental Law Institute
2002; cited in text as “Bernstein (2002)”................. 14, n. 11
Boese, S, Shendell, D., The Healthy and High Performance
School (Healthy Schools Network, Inc. (2004); cited in text as
“Boese & Shondell (2004)” . .......ccccccvecccccesessccscccnd ey BL SF
Boese, S., Shaw, J., New York State School Facilities and
Student Health, Student Achievement, and Student
Attendance: A Special Data Analysis Report (Healthy
Schools Network, Inc. 2005); cited in text as Boese &
I SR Re 6s ikscccosvounsnchinnesesvadineniatnctitaascaigiacbeiaedaiaibdanel: 4,n. 5
Christensen HC, Schuz J, Kosteljanetz M, Skovgaard
Poulsen H, Boice JD, McLaughlin JK, Johansen C.,
Cellular telephones and risk for brain tumors: A
population based incident case-control study, 64
Neurology 1189-95 (2005); cited in text as “Christiansen
re, GE pinata eialadusbenmeaecaecs 10, n. 9
Coleman M, Beral V., A review of epidemiological studies
- of the health effects of living near or working with
electricity generation and transmission equipment, 17
International Journal of Epidemiology 1-13 (1988); cited
in text as “Coleman et al. (1988)” ............ccccccsssrssevese 8,n. 7
Dolk H, Shaddick G, Walls P, Grundy C, Thakrar B,
Kleinschmidt I, Elliott P., Cancer incidence near radio
and television transmitters in Great Britain, 145
American Journal of Epidemiology 1-9 (1997); cited in
Ee PG OE ls ET eciencetecteiinnisinenetidninvarsunnienes Fo th
Elder JA., Thermal, cumulative, and life span effects and
cancer in mammals exposed to radiofrequency radiation,
v1
In: Biological Effects of Electric and Magnetic Fields:
Beneficial and Harmful Effects. Eds. DO Carpenter,” S
Ayrapetyan, Vol. 2, pp. 279-295 (Academic Press, Inc.
1994); cited in text as “Elder (1994)? oo... cesses 8, n. 7
Elwood JM, Epidemiological studies of radio frequency
exposures and human cancer, 6 Bioelectromagnetics
(Suppl) S63-73 (2003); cited in text as “Elwood (2003)”
snikdissaidabebiccnndcacbibaaindletmdiasaiabsaicdamionietauatne: ana 10, n. 9
Eulitz C, Ullsperger P, Freude G, Elbert T., Mobile
phones modulate response patterns of human brain
activity, 9 NeuroReport, 3229-32 (1998); cited in text as
EE OE OE, (ESI GD sretccsorecicarsasisecssntinrentcensnsenaiandaan 9
Goldsmith JR., Epidemiologic evidence relevant to radar
(microwave) — effects, 105 Environmental Health
Perspectives 1579-87 (1997); cited in text as “Goldsmith
RSD PEY strinkccens.<ieccvenienisinuieneagianiaccmumuetenssaimadaaina 9
Grayson JK., Radiation exposure, socioeconomic status,
and brain tumor risk in the US Air Force: A nested case-
control study, 143 American Journal of Epidemiology
480-86 (1996); cited in text as “Grayson (1996)” ............. 7
Hardell L, Mild KH, Carlberg M, Hallquist A., Cellular
and cordless telephone use and the association with brain
tumors in different age groups, 59 Archives of
Environmental Health 132-37 (2000); cited in text as
“PROC OE: SIRES siitonnccesccnecnnmnignananedel 8
? Dr. David Carpenter participated in the preparation of this brief.
Vii
Healthy Schools Network, Inc: Lessons Learned (2006);
cited in text as “Healthy Schools Network, Lessons
Ce. csccsrserecenersneneee 16, n. 15
Hermann DM, Hossmann KA., Neurological effects of
microwave exposure related to mobile communication,
152 Journal of Neurological Sciences, 1-14 (1997); cited
in text as “Hermann & Hossmann (1997)” .............. 10,n.9
Huber R, Graf T, Cote KA, Wittmann L, Gallmann E,
Matter D, Schuderer J, Kuster N, Borbely AA,
Achermann P., Exposure to pulsed high-frequency
electromagnetic fields during waking affects human sleep
EEG, 11 NeuroReport, 3321-25 (2000); cited in text as
nn. ccicanesseenteesoncesioncnsese 10
Inskip PD, Tarone RE, Hatch EE, Wilcosky TC, Shapiro
WR, Selker RG, Fine HA, Black PM, Loefler JS, Linet,
MS., Cellular-telephone use and brain tumors, 344 New
England Journal of Medicine 79-86 (2001); cited in text as
Fs cacewesauecevsunreesvevevenresvceseres 10,n.9
ICNIRP, International Commission for Non-lonizing
Radiation Protection, Standing Committee on
Epidemiology: Ahlbom A, Green A, Kheifets L, Savitz D,
Swerdlaw A., Epidemiology of health effects of
radiofrequency exposure, 112 Environmental Health
Perspectives 1741-54 (2004); cited in text as “ ICNIRP et
ioscan caseeenscoresvruerenctweveoresnvscesessvors 9,12
Jackson, T. ed. Clean Production Strategies - Developing
Preventive Environmental Management in the Industrial
Economy (Boca Raton FL: Lewis Publishers 1993); cited
NEE SUCRE TR DIS) ccccccveevevssesevessessseseeseeses 15,n. 14
Vill
Kheifets L, Repacholi M, Saunders R, van Deventer E.,
The sensitivity of children to electromagnetic fields, 116
Pediatrics €303-e313 (2005); cited in text as “Kheifets
ERIDUET cccsccosanicvscricuvedshanabisededieintenieaitiieaaniieabasasiagdidaanin 9
Kundi M, Mild KJ, Hardell L, Mattsson M, Mobile
Telephones and Cancer: A Review of Epidemiological
Evidence, 7 Journal of Toxicology and Environmental
Health, Part B 351-84 (2004); cited in text as “Kundi et al.
CARTE swwescssccencseseisvennictaebvetinieantatniniaianinsiiaaeaaaaiatn 8,9
Lilienfeld AM, Tonascia J, Tonascia S, Libauer CA,
Cauthen GM., Foreign Service Health Status Study:
Evaluation of Health Status of Foreign Service and Other
Employees from Selected Eastern European Post, Final
Report Contract No. 6025-619073 Department of State,
Washington DC. (1978) available from Natl. Tech. Info.
Serv., Springfield, VA; cited in text as “Lilienfeld et al.
ERSTE Gnctcciccssisdiedsencsisnticabtinetcinsnibisaeeinaantainaciaidaddiaitt 8, n. 7
Lonn S, Ahlbom A, Hall P, Feychting M., Mobile phone
use and the risk of acoustic Neuroma, 15 Epidemiology
653-59 (2004); cited in text as “Lonn et al. (2004)”.......... 8
Michelozzi P, Capon A, Kirchmayer U, Forastiere F,
Biggeri A, Barca A, Perucci CA., Adult and childhood
leukemia near a high-power radio station in Rome, Italy,
155 American Journal of Epidemiology 1096-1103
(2002); cited in text as “Michelozzi et al. (2002)” ......7, 11
Milham S., Mortality from leukemia in workers exposed
to electrical and magnetic fields, (Letters to the Editor)
307 New England Journal of Medicine 249 (1982); cited
Ome Ware win I CIE aevecinscenrcevcesienenecicsntescienese 8, n. 7
1X
Milham S., Silent Keys: Leukemia mortality in amateur
radio operators, 1 Lancet 812 (1985); cited in text as
| _ gR TEESE Nee eRe ORAM aN A CRSA ROLES 8n.7
Milham §S., Jncreased mortality in amateur radio
operators due to lymphatic and _ hematopoietic
malignancies. 127 American Journal of Epidemiology 50-
54; cited in text as “Milham (1988a)”...........00....ee 8, n. 7
Milham S., Mortality by license class in amateur radio
operators, 128 American Journal of Epidemiology 1175-
76 (1988); cited in text as “Milham (1988b)”............ 8,n. 7
Morgan RW, Kelsh MA, Zhao K, Exuzides KA, Heringer
S, Negrete W., Radiofrequency exposure and mortality
from cancer of the brain and lymphatic/hematopoietic
systems, 11 Epidemiology 118-27 (2000); cited in text as
se ____ RSLS EN UeRRA mIC Nee BCS ORONO DER 8, n. 7
Moulder JE, Erdreich LS, Malyapa RS, Merritt J, Pickard
WE, Vijayalazxmi., Cell phones and cancer: What is the
evidence for a connection? 151 Radiation Research 513-
31 (1999); cited in text as “Moulder et al. (1999)”.. 10, n. 9
National Institute of Environmental Health Sciences:
Report to United States Congress, Health effects from ercposure
fo power line frequency electric and magnetic fields (prepared in
response to the 1992 Energy Policy Act, PL 102-486,
Section 2118), NIH Publication # 99-4493, p 9 (1999);
cited in text as “National Institute (1999)”.. .............. 6
National Research Council, Pesticides in the Diets of
Infants and Children (National Academy Press:
Washington D.C. (1993); cited in text as “National
I SE CPN IE patch bvnscinincnsenteesinincitdiapeesinniiaiin 12
X
New York State Board of Regents, Report of the Regents
Advisory Committee on School Environmental Quality,
1994; cited in text as “New York Regents Report
PONE pibctutidleccduscs uivescistinntrmbnescvekae 13-14, n.11
New York State Board of Regents, Summary of the
February Meeting Held at the State Education Building
February 1,2,3, 1995”, David Johnson, Secretary, Board
of Regents: Approval of Standing Committee Reports,
Regents Committee on Elementary, Middle, and
Secondary and Continuing Education, Environmental
Quality in Schools (EMSC (A) 1.1-2 and Attachment
dated January 13, 1995; cited in text as “New York
Regents Meeting C1995)” .cccccececorecscosvessesessonsers 13-14, n. 11
Owen RD., Possible health risks of radiofrequency
exposure from mobile telephones, 11 Epidemiology 99-
i J0 (2000); cited in text as “Owen (2000)”....... eee 9
Park SK, Ha M, Im H., Ecological study on residences in
the vicinity of AM radio broadcasting towers and cancer
death: Preliminary observations in Korea, 77
International Archives of Occupational and
Environmental Health 387-94 (2004); cited in text as
Er AT. cakidahadcaacasinsedinas Biadigensealicadipniiaidncases 7
Raffensperger C., Tickner J., eds., Protecting Health and
the Environment: Implementing the Precautionary
Principle (Washington, D. C., Island Press 1999); cited in
text as “Raffensberger & Tickner (1999)”............. 15, n. 14
Repacholi Mi:, Basten A, Gebski V, Noonan D, Finnie J,
Harris AW., Lymphomas in Eyu-Pim1 transgenic mice
exposed to pulsed 900 MHz electromagnetic fields, 147
xi
Radiation Research 631-640 (1997); cited in text as
ee OR UPON‘ cccicsstitinttinsnntsnnsaalndeedndisasduaiiaiaeait 9
Robinette CD, Silverman C, Jablon S., Effects upon health
of occupational exposure to microwave radiation (radar),
112 American Journal of Epidemiology 39-53 (1980);
cited in text as “Robinette, et al. (1980)” 0.000000... 8, n. 7
Rothman KJ, Loughlin JE, Funch DP, Dreyer NA,
Overall Mortality of cellular telephone customers, 7
Epidemiology 303-05 (1996); cited in text as “Rothman et
BFS etiiientdenitetdiedesteimaiialidige dada 16,n.9
Salford LG, Brun A, Sturesson K, Eberhardt J, Persson B.,
Permeability of the blood-brain barrier induced by 915
MHz electromagnetic radiation, continuous wave and
modulated at 8, 16, 50, and 200 Hz, 27 Microscopy
Research and Techniqve 535-42 (1994); cited in text as
TREPUR TIE COTTON wcininescoussascsicienmansebemdindasdlaviantens 9
Salford LG, Brun A, Eberhardt J, Malmgren L, Persson
B., Nerve cell damage in mammalian brain after
exposure to microwaves from GSM mobile phones, 111
Environmental Health Perspectives 881-83 (2003); cited
in text as “Salford et al. (2003)” .......:secssessrocseeseseseeseres 9-10
Szmigielski S, Bortkiewicz A, Gadzicka E, Zmyslony M,
Kubacki R., Alteration of diurnal rhythms of blood
pressure and heart rate in workers exposed to
radiofrequency electromagnetic fields, 3 Blood Pressure
Monitoring 323-30 (1998); cited in text as “Szmigielski et
i; TEEPE siciesencactibinsesinaccdamnmlanialeaamaaesmanaian 8,n. 7,9
Szmigielski §., Cancer morbidity in subjects
occupationally exposed to high frequency (radiofrequency
xii
and microwave) electromagnetic radiation, 180 Science
of the Total Environment 9-17 (1996); cited in text as
PUNT T CIMIET ccnsssitsssdblabedenionsoneenaieaeohevenabvesaiesiionontnten 7
Tattersall JEH, Scott IR, Wood SJ, Nettell JJ, Bevir MK,
Wang Z, Somasiri NP, Chen X., Effects of low intensity
radiofrequency electromagnetic fields on_ electrical
activity in rat hippocampal slices, 904 Brain Research 43-
53 (2001); cited in text as “Tattersall et al. (2001)” ........ 10
U.N. Rio Declaration on Environment and Development
(July 14, 1992). 31 ILM 873 (1992); cited in text as “U.N.
Rio Declaration (1992)™...........:..:ccceeeceee 14, n. 12, App. D
U.S. Department of Education, Office of the Under
Secretary, A summary of scientific findings on adverse
effects on indoor environments on student's health,
academic performance and attendance, 2004, U.S. Doc.
#2004-06, Washington, DC, 2004, prepared for Congress
pursuant to HHPS/NCLB; cited in text as “U.S. DOE
Study of National Significance (2004)” 0.0.0.0... 4,n.5
U. S. General Accounting Office Report to Congressional
Requesters, entitled "Research and regulatory efforts on
mobile phone health issues, (1994), Doc. #GAO 01-545;
cited in text as “U.S.GAO Report (2001)” «0... 9
U. S. Presidential Executive Order # 13045, Protection of
Children from Environmental Health Risks and Safety
Risks, Federal Register, Vol. 62, No. 78, pp. 19883 (April
27, 1997); cited in text as “U.S. Executive Order # 13045”
Wang B, Lai H., Acute exposure to pulsed 2450-MHz
microwaves affects water-maze performance of rats, 21
Xill
Bioelectromagnetics 52-56 (2000); cited in text as “Wang
& Lai (2000)” ......... dhovnisictervniigiticmmmabeiiaaa aan 9
ee
PRELIMINARY STATEMENT
This case raises the very significant questions of (a)
whether the FCC, in launching a major new cellular
telephone program, should be able to ignore both the
safety of children and the NEPA requirement that an EIS
be prepared for all major governmental undertakings
simply because scientific warnings of health hazards have
not reached the stage of definitively establishing harm to
humans, and (b) whether the availability of a multitude of
ad hoc licensing and site-specific reviews, applying
standards based on the scientifically questionable
assumption that no biological harm is being caused by
long term radio-frequency (“RF”) radiation, is_ the
“functional equivalent” of an NEPA-mandated EIS.
DESCRIPTION AND INTEREST OF AMICUS
CURIAE
Healthy Schools Network, Inc. (“HSN”) submits this
brief as Amicus Curiae with the written consent of all
parties °
HSN is a national environmental 501(c)({3) not-for-
profit corporation organized in 1995, and incorporated in
1998 under the laws of the State of New York. Its offices
are located in Albany and Washington. D.C. HSN is
dedicated to assuring every child and school employee an
environmentally safe and healthy school through research,
information, advocacy and coalition building. HSN’s web
site is www.healthyschools.org. HSN promotes the
> Pursuant to Supreme Court Rule 37.6 Amicus states that this brief
was authored in whole by undersigned counsel and his client, and
that no person or entity other than the Amicus made a monetary
contribution to the preparation and submission of this brief.
2
development of national, state, and local policies,
programs and funds with a two-fold focus: to improve the
environmental conditions of school facilities, and to
promote children’s environmental-‘occupational’ health in
their “workplaces” — schools. *
In 2000 HSN convened the ad hoc Coalition of
Healthier Schools to provide “the platform and the forum
for school environmental health”, uniting public health,
environment, parent, labor and education groups and
individuals around policies to prevent environmental
exposures that are associated with health problems in
children and adults. HSN links the coalition members
through sponsoring conference calls and meetings.
Participating policy groups come from areas enrolling
more than ten million of the nation’s 48 million public
school children. Collaborating nationwide, HSN has led
National Heaithy Schools Day activities for the last three
years, created a “National Healthy Schools Training
* HSN has won national recognition for its Healthy Schools/Healthy
Kids Clearinghouse informational services, and has a long history of
helping other nonprofits and agencies develop school environmental
programs sensitive to children’s needs. HSN has fostered the
creation of state-based policy reform organizations and scores of
local groups concerned with environmental health in schools. HSN
has been honored to receive in 2005 the U.S. Environmental
Protection Agency Childrea’s Health Protection Recognition
Award. Its executive has also chaired the U. S. EPA’s Office of
Child Health Protection Advisory Committee’s Work Group on
School Environments in 2001-02 and again in 2004; co-chaired the
School Policy panei for the prestigious 9" International (triennial)
Indoor Air Conference in Monterey, California in July 2002;
coordinated invited testimony in the U.S. Senate Environment and
Public Works Committee Hearing on School Environments in
October 2002; and, since 2003 has led two briefings for The White
House Council on Environmental Quality.
2
Binder,” encouraged research, and advocated for federal
and state reforms.
HSN’s preventive approach to designing, building, and
maintaining school buildings is based on the knowledge
that (a) children are more vulnerable to environmental
hazards than adults, (b) they cannot protect themselves
from hazards, (c) they are required to be in school, and (d°
no agency is authorized to intervene when children are at
risk. Authoritative scientific studies indicate that facilities
with superior indoor environmental quality and good day
lighting are associated with higher test scores and
attendance. Applying this base, HSN promotes “high
performance school” design and construction consistent
with its support of the Healthy and High Performance
Schools provisions of No Child Left Behind — schools
designed for energy and resource conservation as well as
superior environmental quality through reducing the use
of polluting materials.
In 1996 HSN created the Healthy Schools/Healthy
Kids Clearinghouse offering informational fact sheets,
guides, and reports, phone and email assistance to parents,
personnel, and to schools. Areas of health interest to HSN
other than the RF radiation exposure danger discussed
here are set forth in Appendix A. Web-based publications
address common concerns. More extensive guides outline
occupational health regulations and identify agenc’es in
the states that are likely to have responsibilities. By
providing steady advice on preventing environmental
problems, HSN helps parents and the education
communities become aware of environmental problems
and understand how to prevent or to reduce them.”
> As part of its program to protect children’s health, HSN has
promoted research and translated it into policy action. A 2004 HSN
report, The Healthy and High Performance School, summarizes
4
EPA currently estimates that half of all schools have
compromised indoor environments; and since schools are
primarily locally funded, it is not surprising that federal
reports continue to find that the poorest children have the
schools in the worst condition. There clearly is an
enormous unmet need to improve, not further undermine,
school environments.
HSN is quite concerned that a significant threat to the
health of school children and personnel is posed by RF
radiation from cell towers placed on or near schools or
day care centers. Two members of HSN’s board are
scientists with extensive experience in dealing with the
potential of harm from electronic transmissions. HSN
submits this brief as amicus curiae to advise the Court of
the need for enforcement of a court-mandated EIS in this
case.
THE PETITION FOR MANDAMUS SHOULD
HAVE BEEN GRANTED
This case addresses a very significant potential health
risk to the nation’s school children for which no one is
currently assuming responsibility. Because of their greater
vulnerability, inability to avoid exposure, and lengthy
school-day exposure, the need for an EIS evaluating the
new FCC’s new Advanced Wireless Services (“AWS”)
program is more compelling for the 54 million children in
peer-reviewed scientific literature on school indoor environments
and children’s health (Bowse & Shendell (2004)). The U.S. DOE
Study of National Significance (2004) covered many similar studies.
Another HSN data report found that poor facility conditions were
associated with lower test scores and attendance and higher
suspension rates (See Boese & Shaw (2005)).
5
public and private schools in the United States than either
the adult population or the general population at large.
A. Existing Scientific Warnings of Harm From Long-
Term Exposure to RF Radiation Justify Concern
about the Launch by the FCC Of A New Program
Without EIS Evaluation
There now exists a substantial body of published
scientific research suggesting that the potential for harm
from new cellular transmission technology is real. These
studies justify concern that cellular band towers operating
near school buildings emit RF radiation that may be
harmful to the health of humans in the immediate area and
cause biological harm through long term exposure.
Electromagnetic radiation is a form of energy which
travels in waves and includes everything from high energy
X-rays and cosmic rays through visible light to the low
energy electric and magnetic fields released from power
lines. Cellular telephone towers release RF radiation that
is in the microwave region of the electromagnetic
spectrum.
High energy electromagnetic radiation is clearly
harmful, and can cause cancer and birth defects through
direct damage to the genet.c material in cells. There is
also a substantial body of scientific evidence showing that
the low energy electromagnetic fields coming from power
lines and electrical appliances (at a frequency of 60 Hz in
the U.S.) also pose an elevated risk of cancer to humans.
While the degree of hazard from lower energy fields is
still a matter of controversy, the evidence that there is an
increased risk of cancer among highly exposed persons
nevertheless is very strong. A report in 1999 to the U.S.
Congress from the National Institute of Environmental
6
Health Sciences has concluded that “the epidemiologic
studies demonstrate...a fairly consistent pattern of a small
increased risk with increasing exposure that is somewhat
weaker from chronic lymphocytic leukemia than for
childhood leukemia” (National Institute (1999).° The
report also concludes that animal studies have not resulted
in cancer, but that no mechanism is known to explain the
increased leukemia seen in people exposed to these
electromagnetic fields.
Questions of safety increase with respect to cellular
tower transmission fields as compared to those generated
by electrical transmission lines. The energy in all forms of
electromagnetic radiation increases as the frequency
increases. The frequency, and therefore the energy,
released from cellular phone towers is less than x-rays and
visible light, but greater than that of power lines. Since
there is a general consensus that the relative harm from
electromagnetic radiation is in proportion to the energy of
that radiation, one would expect cell tower RF radiation to
be less harmful than x-rays, but more harmful than that
coming from power lines. Unfortunately, there has been
almost no careful investigation of human health effects
from cellular phone frequencies, although clearly there is
significant exposure to individuals who are in close
proximity to cellular towers.
RF fields are basically the same as microwaves,
which clearly do cause heating if the intensity is great
° Introduction to the report by Dr. Kenneth Olden, then the Director
of the National Institute of Environmental Health Sciences and
currently a member of the Board of Directors of the HSN who has
participated in the preparation of this brief.
Because of the length of citations to scientific reports in this brief,
to facilitate reading, all references to scientific reports are to
shortened versions set forth in the Table of Cited Authorities.
7
enough. The proposed ultra-high frequency RF waves
involved in this case will have more energy, and thus be
more potent in potentially causing harmful effects, than
the RF fields in current usage.
Present international standards for exposure to RF
fields, including the FCC’s present RF radiation standards
the application of which it offers to excuse its failure to
conduct an EIS study, are based on limited information
and on the highly questionable assumption that there are
no non-thermal effects of RF radiation, thus the present
scientific debate is over whether there are “non-thermal”
effects that are not mediated by tissue heating. The
answer is that some, but not all studies of humans indicate
that non-thermal RF fields do cause harm to humans. We
will now summarize the availabie information.
The strongest evidence of adverse health effects
indicates concern for causation of cancer. Szmigielski
(1996) reported cancer morbidity in Polish military
personnel, and found that personnel exposed to
RF/microwave radiation showed a greater than two-fold
risk of any cancer as compared to unexposed personnel.
The relations were strongest for hematopoetic cancers,
which were elevated between 5.8 and 13.9 fold. Grayson
(1996) reported a significant 1.29 fold elevation in brain
tumors in US Air Force personnel exposed to
RF/microwave radiation. Dolk et al. (1997) reported a 1.3
fold elevation in incidence of leukemia in individuals
living near an FM radio transmitter in England.
Michelozzi et al. (2002) reported a significant elevation in
adult and childhood leukemia in residents living near a
high-powered radio station in Rome. Park et al. (2004)
investigated cancer rates in Korea in individuals living
near AM radio broadcasting towers, and _ reported
significant elevations in leukemia, especially in the young.
8
Hardell et al. (2004) found that individuals using analog
cell phones had a greater than eight-fold increased risk of
developing brain tumors, while with cordless phone usage
the increased risk was more than four-fold, and Lonn et al.
(2004) also found an increased risk of acoustic neuroma (a
form of brain cancer) among persons in Sweden who used
a cell phone for 10 or more years.’
Kundi et al. (2004) summarizes the results of nine
different human epidemiological studies of ceil phone
users from the U.S. and Europe. While elevated risks of
brain cancer, leukemia or melanoma were reported in
these studies, all have some limitations. Also, the period
of cell phone use was short, whereas cancer often takes a
long time to develop®. The authors of the Kundi study
conclude that while the evidence to date is not sufficient
to prove that cell phone use causes cancer, there is
sufficient concern that more research be done. A very
’ There are a number of reports of non-thermal effects of RF
transmissions on human populations. Robinette et al. (1988)
investigated morbidity and mortality of US navy personnel exposed
to radar, and Lilienfeld et al. (1978) looked at similar indicators in
occupants of the US Embassy building in Moscow, which was
exposed to RF radiation. Neither reported any change in morbidity
or mortality. Thus not all studies have found elevated rates of cancer,
including leukemia and brain cancer in tumors, upon exposure (see
Morgan et al. (2000), as discussed further below. However, Milham
(1982) and Coleman et al. (1983) have reported elevations in
leukemia incidence among ham radio operators and electricians.
There are other studies that also report positive associations between
RF exposure and cancer (Milham (1985; 1988a and 1988b);
Szmigielski et al. (1998), all referenced in Elder (1994)). But all of
these studies lack good dosimetry, i.e.. measurement of the intensity
of RF fields, with regard to levels of exposure.
5 It was not always possible to quantify the exposure well, and since
exposure was dependent upon subjects remembering their degree of
cell phone use, this may have led at times to inaccurate information.
9
similar conclusion was made in another recent review by
ICNIRP et al. (2004), which points out that the human
studies are not all consistent, but that there are so many
deficiencies in the studies to date that one cannot rule out
an association between exposure and cancer.
A recent research report from Australia (Repacholi et
al. 1997), made in the laboratory of a researcher known to
be skeptical of RF danger, shows that digital mobile
phone radiation boosts cancer rates in mice is particularly
important in this regard. It provides much additional
support for concern about exposure to these forms of
electromagnetic radiation.
Aside from cancer, other biological effects have also
been observed by researchers. They include increased
spontaneous abortion, shifts in red and white blood cell
counts, increased mutations in lymphocytes (see
Goldsmith (1997)), direct damage to nerve cells from
microwaves from GSM mobile phones (Salford et al.
(2003)), altered diurnal rhythms of blood pressure and
heart rate (Szmigielski et al.(1998)), changes in brain
wave activity (Eulitz et al. (1998)), and altered
performance of rats in learning tasks (Wang & Lai
(2000)).
The FCC’s implication below that only high-
energy ultraviolet, x-ray or nuclear radiation have
sufficient energy to cause biological injury because there
is “no scientific consensus on the issue” (FCC Brief
below, p. 4) is inconsistent with the U. S. GAO Report
(2001), Kundi et al. (2004) ICNIRP (2004), Kheifert
(2005) and Owen (2000). (See Appendix B for relevant
statements from these studies).
Salford et al. (1994) reported that low power RF
ficlds, below that which caused thermal effects, increase
leakage of protein from the blood-brain barrier, and in
10
2003 found that this resulted in nerve cell damage in the
brain. Tattersall et al. (2001) found that RF field
applications below the level which causes heating resulted
in changes in the electrical activity of brain slices, which
suggests that such fields can alter nervous system
function. Huber et al. (2000) showed that human
exposure to digital radiotelephone handsets affects brain
physiology in young healthy male subjects, modifying
their EEG during subsequent sleep.
As indicated, the studies suggesting cancer and other
health risks do not stand alone.’ But the available
evidence certainly does NOT permit anyone to conclude
that cell transmissions are not harmful, much less that
long exposures to closely transmitted ultra-high frequency
cellular transmissions are not harmful.
Under these circumstances where the science is
uncertain with regard to human health risk it is difficult to
make decisions. Given the current state of research, at best
one can reasonably conclude that at present there is
neither adequate evidence to conclude that exposure to RF
radiation is “safe,” or that it is hazardous.'° Even though
— ey
* Some studies suggesting that there are no links to cancer and other
biological harm are described above. There are also several reviews
that express skepticism that RF exposures are linked to cancer and
other biological harm (Hermann & Hossmann (1997); Moulder et al.
(1999); and Elwood (2003)). There are several reports that have not
found elevated rates of death (Rothman et al. 1996) or incidence of
brain cancers (Inskip et al. 2001); Christensen et al. (2005) among
cell phone users. None of the studies reported health effects focused
on cell phone tower transmissions.
‘© But even this uncertainty and need for caution arose in the context
of the older transmissions. The FCC is now in the process of
launching a totally new spectrum of ultra-high frequency magnetic
field, slightly more powerful, and therefore potentially more
dangerous, bringing with it new uncertainty. The new program
1]
the evidence to date does not allow one to conclude that
RF exposure is definitely hazardous to human health, it
certainly does suggest the conclusion that there is reason
to be cautious since, if anything, the majority of the
studies are suggestive of an association between exposure
and cancer.
B. The Potential for RF Radiation Harm is Greater
for Children and for Schools
When a cellular transmission is beamed through, on, or
near a school, the long-term exposure to RF radiation is
significantly greater because the transmission is directed
at a concentrated portion of the most vulnerable part of
our population each school day — school children. We also
know from existing studies that the risk of harm from RF
exposure increases as exposure increases (Dolk et al.
1997; Michelozzi et al. 2002). This means that the risk of
long term RF exposure from transmissions located near
schools is multplied because schools are gathering places
for the most vulnerable part of the population for long
periods of time.
As cellular coverage increases in each community,
causing cellular transmissions to become sited closer to
congested areas, the possibility that the cellular towers
will be located, as in this case, so that they aim their
raises still another level of questions, and there are plans for
transmissions at even higher frequencies in the future. Studies
discussed above signal the need for evaluations of the potential
harmful effects of the new high frequency RF radiation. Also, the
fact that these megahertz bands are currently being used bv licensees
transmitting lower frequencies (as the FCC argued below) does not
reduce the risk of increased harm from higher frequencies when that
higher frequency use Segens.
12
transmissions from the top, through, and over schools also
increases. Unlike with a TV or radio tower where the
electromagnetic radiation goes in all directions (360°), the
beam from a cell phone tower is usually directed at the
horizon. This becomes of particular concern when an
occupied space is in the direct path of the cone-shaped
cell tower transmission pathway. In general, the closer
one is to the tower, the stronger the radiation, especially if
in the direct line with the tower.
Some schools are at more risk than others due to fiscal
constraints and the attractiveness of developing outside
income. Schools are more locally funded than state
funded. There is virtually no federal funding for school
construction and, compared to all local sources,
comparatively little for educational programs. School
systems needing more resources try to earn money many
ways, for example selling ad space, selling sweets, or
even leasing cell tower space. Thus, the lower income
neighborhoods with lower-income/higher risk students
and with resource-poor schools are more likely than
schools serving high income populations to agree to lease
rooftop space to cell towers.
Children are particularly susceptible to pollutants and
therefore likely to be much more vulnerable to the effects
of cell phone frequencies. See generally, National
Research Council (1993) recognizing that fetuses,
children, and all developing organisms are often more
susceptible to environmental agents than adults, and that
public health policy often fails to reflect this unique
susceptibility. The study of RF transmission risk by
ICNIRP et al. (2004) emphasizes that none of the studies
to date have focused on exposure of children.
This potential for harm to children is exacerbated by
the jong term exposure that results from young children
13
spending significant periods of time in school. Schools
are a gathering place for children for between six and
eight hours a day, five days a week, and some children
may be in school for breakfast programs through after
school activities, a far longer ‘work’ week. While this is
still not as much as the iiome life of each child, this is
substantial exposure nevertheless, and it is concentrated
among many children. And it is not as if the resulting nsk
of harm can be avoided. Children are required by law to
attend school, and need to be educated. Even if the risks
were generally known, which they are not, most children
have no alternative but to attend the school to which they
are assigned and therefore endure whatever risks are
present in that environment. Schools are generally not
required to inform parents of such risks.
C. Precaution Dictates the Need for an EIS.
Some forms of environmental harm exist in schools
solely because of negligence, short sightedness, lack of
funds for planning, siting, and maintaining schools, or the
indirect result of greed in school construction, and cannot
therefore be anticipated. But there are also many other
forms of environmental harm that can be anticipated and
thus avoided. Awareness of this possibility led HSN in the
mid-90’s to urge schools to adopt a policy of prevention
to promote healthy school environments.
HSN is not alone in adopting preventive policies to
improve school facilities. Other nongovernmental
organizations and governmental bodies began taking
systematic actions to improve school environments in the
14
late 1990’s.'' More recently, the powerful “Precautionary
Principle” is being applied to a full range of
chemical/biological issues.
The Precautionary Principle, once the conceptual
cornerstone of public health, is reemerging as a central
concept in public health today.’ The Principle is the idea
that when there is credible evidence of adverse effects,
precautionary action should be taken, even when some
cause and effect relationships are not fully understood or
'' Specifically regarding electromagnetic fields (“EMF ’s”), HSN’s
adoption of preventive actions was prompted by the adoption of the
New York State Board of Kegents in 1995 of key guiding principles
and recommendations of the Regents’ Advisory Committee on
School Environmental Quality (New York Regents Report 1994),
stating that children were more vulnerable to hazards, and stating
that schools should serve as role models for environmentally
responsible behavior. In 1995, the Regents also adopted a policy of
“prudent avoidance” of EMF’s (New York Regents Report 1994,
New York Regents Meeting (1995)). See text in Appendix C. Many
other states adopting new policies to improve school indoor air
quality were reported by Bernstein (2002). Another study by
Bernstein also reported on how state and local agencies were
promoting “high performance school design” (Bernstein 2003).
2 This concept is imbedded in Principle 15 of the United Nations
Environment Programme conference in Rio de Janeiro in 1992, to
which the U.S. is a signatory (See U.N. Rio Declaration (1992)
and Appendix D), and reflected as a policy (#200011) of the
American Public Health Association for preventing harm to children
(APHA Policy Statement, see Appendix E).
'. The European Union adopted the Principie in the 1992 treaty that
created the union and the policy was put forward throughout the EU
in 2000.See _http://ec.europa.eu/dgs/health_consumer/library/pub/
pub07.en.pdf. In 2003, the European Commission hosted a
conference on the application of the CY Principle to EMF
fields. See
http://ec.curopa.ew/health/ph_| determiants/environment/EMF/conf fe
bvruary_2003_ en.htm.
ro
>
15
established. In situations where there is some evidence of
a human health hazard, but not enough to be characterized
as definitive proof, it is deemed wise to take preventive
action to avoid or reduce exposures.
The Principle is most appropriate for application
precisely in those areas, like this case, where proof that
causal harm exists as a potential threat, but is not available
as a definitive result'*, Implementation of the
Precautionary Principle is especially important when
children are involved because of the greater vulnerability
of children to the effects of toxic exposures as their bodies
are developing (See subsection B, supra).
As indicated in subsection A, supra, the new AWS
cell-tower transmission program is a Classic situation of
uncertainty and risk calling for precaution. Under this
clear need for evaluation of risk the wisest approach for
both government and individuals is to take the first step in
implementing precaution by conducting an EIS study as
required by law. Human exposure should be reduced by
applying prudent avoidance until the EIS process is
completed, and thereafter steps should be taken to avoid
risk based on the conclusions of the evaluation.
‘4 See generally, Raffensperger & Tickner (1999) and APHA Policy
Statement: “recognizing that proof of cause and effect relationships
is often difficult to establish because of non-specificity of health
effects, long latent periods, subtle changes in function that are
difficult to detect without resource-intensive studies, and complex
interactions of variables that contribute to adverse health effects.” .
Both Raffensberger & Tickner (1999) and Jackson (1993) are
sources for APHA Policy: “recognizing that some uncertainty is
irresolvable by more data collection; that some residual uncertainty
is actually the result of indeterminacy due to multiple factors
interacting in complex systems or due to ignorance about what
questions to ask or what effects to look for”.
16
It is unrealistic to excuse application of the
Precautionary Principle on the argument that application
of the Principle for health safety reasons conflicts with the
FCC’s mandate to promote telecommunication services to
the public for industry by expanding the
telecommunications industry, cf. Cellular Phone
Taskforce v. FCC, 205 F. 3d 82, 91-92 (2000), since the
FCC cannot even properly assess the balance between
serving the public’s health (which may have to bear an
incalculable cost to children) and serving the public
through industry without an _ EJS _ evaluation.
Unfortunately the position industry being taken by the
FCC in this litigation with respect to its new AWS
program is quite the opposite of precaution. Despite
existing suggestions of potential biological harm, the FCC
intransigently relies, without the benefit of an EIS, on its
judgment (which we believe to be unscientifically sound)
tha. its safety standards are adequate when it could instead
be taking steps to avoid harm. The FCC’s position that it
perceives no need for action by way of avoidance or study
in the absence of definitive proof of harm amounts to
insisting on a body count first approach. The health and
learning of the nation’s children does not have the luxury
of proceeding by such an incalculably costly and tough
standard
D. An EIS Is Necessary Because There Is No Good
Alternative
One common factor that HSN repeatedly finds
accompanying discovery of harmful exposures in schools
is that no agency is charged with protecting children’s
health, or watching out for dangers in the school. HSN
has documented in two recent national collaborative
17
reports” that in state after state no agency is charged with
protecting children’s environmental health, or authorized
to intervene when hazards affect school children. There is
also no systemic national or state surveillance of school
environments or of child health at school."®
Few if any educational leaders, and those charged with
organizing and structuring educational systems, have any
training in facility management. Fewer still would have
information about children’s enhanced vulnerability to
environmental hazards (see www.epa.gov/children).
- Based on past experience it can be assumed that school
administrators and the governmental agencies that
supervise and administrate school systems are going to be
more focused on educational systems than on school
environmental hazards.
Poteatial harm from cell transmission is no exception
to this pattern of safety oversight. Children, the most
numerous potential victims, cannot be expected to provide
safety oversight for themselves, nor to self-advocate. If
the FCC does not conduct an EIS evaluating the nsks of
the new RF radiation it is about to unleash, it can
reasonably be expected that no other agency or local
school administrator or parent will step in to produce or to
'° See Barnett & Paulson (2005) and Healthy Schools Network,
Lessons Learned (2006).
'© Following on federal reports of poor indoor air quality and other
environmental risks at school, -one federal agency, the US.
Environmental Protwction Agency, significantly expanded its
voluntary guidanv:e documents on schools (see
www.epa.gov/schools). The federal Executive Order on Risks to
Children’s Health which had helped to coordinate federal efforts to
protect children has lapsed in 2005 (U.S. Executive Order #13045).
18
finance an EIS that would generate protection. Hence the
significance of a Court-mandated EIS in this case.'’
As the FCC would have it, Court review should be
limited to individual license proceedings or proceedings
after the bidding occurs, and then only with respect to
specific sitings by winning licensees. But any such review
would be entirely ad hoc, dependant on the sophistication
and watchfulness of the multitude of potential victims but
too costly for them anyway, and would permit potential
harm to preceed in the many instances where no site-
specific review is focusing on potential harm. Even ad
hoc victim watchfulness cannot be effective where (as in
this case) cellular towers are camouflaged, and hidden by
false representations as to their function (also as in this
case), and the victims are primarily children. And even
the piecemeal reviews ostensibly available would be
without a global EIS. For these reasons there simply is no
adequate alternative remedy. -The conclusion of the
Second Circuit in 2000 notwithstanding, HSN submits
that the availability of a multiplicity of ad hoc reviews is
simply not the “functional equivalent” of EIS evaluation.
Cf. Cellular Phone Taskforce v. FCC, 205 F. 3d 82, 96
(2000) and EMR Network v. FCC, 391 F. 3d 269, 274-75
(D. C. Cir. 2004). Systematic problems demand
systematic evaluations to lead to sysiematic- solutions.
Where the potential for environmental harm is both
systematic and can also be anticipated, the solution should
be systematic and anticipatory, wet an ad hoc, or worse, a
body-count first response.
g By its reliance on safety standards ignoring current scientific
knowledge suggesting concern about the uncertainty of RF
radiation risk, the FCC is showing itself to be an inadequate
protector for children and for our schools.
19
There is no satisfactory alternative to a Court-
mandated EIS financed by public funds. The few
watchful victims and parents that we hope are out there
who might otherwise engage in ad hoc litigation cannot
afford it themselves. However, requiring the FCC to
prepare an EIS as required by law would go a long way in
- reducing existing concern and in facilitating formulation
and implementation of a safe wireless licensing policy. If.
there is potential harm, but it can be avoided by caution,
study, and prudent avoidance rather than wait until
provable harm is first detected. Otherwise when and if
that detection finally occurs much of the damage to a
generation of children may already have been inflicted.
An EIS performed by the FCC can be expected to help
narrow the gap that exits in current private and public
research. If it were to be determined through such study
that a harm to be avoided does exist, steps will inevitably
follow to achieve avoidance. If it should be determined
that a risk does not exist, that determination will by itself
go a long way in alleviating the concern that currently.
exists in the school environment. Better safe than sorry,
as we have all been told growing up.
E. The Need for an EIS Is a National Health Issue so
Significant It Should Not Be Avoided by Unrealistic
Procedural Obstacles.
The Court of Appeals should not have denied this
application based on what are essentially unrealistic
procedural grounds. The new licenses program of new
and untested ultra-high frequency licenses is certainly the
commission “of resources in a federally significant
action”, and a “major federal action” of the proportions
acknowledged by the Court of Appeals as giving rise to
\
20
the need for NEPA compliance. See Cellular Phone
Taskforce v. FCC, 205 F. 3d 82, 87 (2000).'® Particularly
for children, the launch of this program is also a national
health issue demanding relief by the exercise of the
Court’s discretionary power.
CONCLUSION
Healthy Schools Network, Inc. urges this Court to
issue a writ of mandamus to the Court of Appeals for the
Second Circuit directing the FCC to prepare and file an
EIS for its Advanced Wireless Services program.
spectfully Submitted,
Daniel J {Sullivan
Attoney for Healthy Schools
Network, Inc. as Amicus Curiae
and Counsel of Record
(212) 753-1400
(203) 245-8101
: Fax: (212)448-0066
September 5, 2006 (203) 245-3286
'8 In its brief below the FCC characterized the licensing of the new
ultra-sound spectrum r as an “important FCC program,” and
characterized the prior spectra as “unrelated.” The staggering
proportions of the licensing fee income expected ($1,167,037,500
just for “Upfront Payments” for the 1122 new licenses (Pet. Br. 13)),
and the estimated value of the new spectrum ($15 billion by the
Congressional Budget Office and approximately $34 billion by a
Committee of the House of Representatives (FCC Brief below, p.
22)) also reflects the tremendous magnitude of this new AWS
project.
21
Appendix A
Areas of health interest to HSN other than the RF
radiation exposure danger discussed in this brief include:
(a) Indoor air problems, such as moisture damage to
buildings and furnishings as a precursor to mold
infestations ;
(b) Surface concentrations of microbials, such as
bacteria and fungi that can affect the heaith of
occupants of buildings;
(c) Biological agents in air and dust (bacteria, fungi,
allergens such as dust mites, pet dander);
(d) Toxic and odorous volatile organic compounds,
including formaldehyde;
(e) Direct measures and indicators (carbon dioxide) of
ventilation;
(f) Temperature and relative humidity;
(g) Persistent organic pollutants (polychlorinated
biphenyls, phthalates);
(h) Specific metals (arsenic, lead, mercury);
(i) Asbestos (and related lung cancer § and
mesothelioma);
(j) Radon gas;
(k) Lighting;
(1) Noise;
(m) Drinking water and sanitation;
(n) Disability access;
(0) High Performance Schoo! design including siting
of facilities;
(p) Chemical use and storage;
(q) Environmentally Preferable Purchasing, and
(r) Environmental public health services for children.
F 22
Appendix B
The specific language on point from the citations at
page 9, are:
"The consensus of FDA, the World Health
Organization, and other major health agencies is that the
research to date does not show radiofrequency energy
emitted from mobile phones to have adverse health effects
but there is not yet enough information to conclude that
they pose no risk.....The findings of some studies have
raised questions about possible cancer and non cancer
effects that require further investigation."(U.S. GAO
Report (2001)).
"All studies approaching reasonable latencies found an
increased cancer risk associated with mobile phone
use." (Kundi et al.( 2004))
"No study populations to date have included children,
yet children are increasingly heavy users of mobile
phones and they are potentially highly susceptible to
harmful effects." (ICNIRP (2004)).
"It [this review] includes an assessment of the potential
susceptibility of children to EMFs and concludes with a
recommendation for additional research and _ the
development of precautionary policies in the face of
scientific uncertainty." (Kheiferts et al. (2005))
“There is currently insufficient scientific basis for
concluding whether wireless communication technologies
pose any heath risk. A significant research effort,
involving both large, well-planned animal experiments
and epidemiologic studies of exposed populations, is
needed to support risk assessment of these devices.”
(Owen (2000)).
23
Appendix C
Policy 7 of the New York State Board of Regents
Advisory Committee on Environmental Quality of
Schools Report of the New York State Board of Regents,
The University of the State of New York, The State
Education Department (1994), adopted 1995;
Policy 7
“Encourage schools to practice prudent avoidance
by taking available no-cost and low-cost measures to
reduce the exposure of students and school personnel
to electromagnetic fields as follow:
7.1.1. The state Education Department should work with
appropriate State agencies and recognized outside-
authorities to provide updated and _ current
information about electromagnetic fields in the
school environment to the school community.
7.1.2 Electromagnetic and prudent avoidance measures
should be considered in the siting, design,
construction, and furnishing of new schools. This
consideration should include all sources of
electromagnetic field exposure in and around the
proposed structure.
7.1.3 Electromagnetic field exposure and available
prudent avoidance measures should be considered
in determining space utilization in existing
facilities and purchase of new equipment for these
facilities.
24
Appendix D
Principle 15 of the United Nations Rio Declaration
(1992):
“In order to protect the environment, the
precautionary approach shall be widely applied by
States according to their capabilities. Where there
are threats of serious or irreversible damage, lack
of full scientific certainly shall not be used as a
reason for postponing cost-effective measures to
prevent environmental degradation”
25
Appendix E
Policy Statement #200011, American Public Health
Association (APHA), contained in American Journal of
Public Health, Vol. 91, No. 3 at pp. 20-21.
200011: The Precautionary Principle and Children’s
Health
The American Public Health Association, Recognizing
that, for centuries, the cornerstone of public health policy
and practice has been the prevention of injury and disease;
and
Recognizing that the US has signed the Rio Declaration
on Environment and Development which states;
In order to protect the environment, the precautionary
approach shall be widely applied by States according to
their capabilities. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall
not be used as a reason for postponing cost-effective
measures to prevent environmental degradation, ~ a
statement known as the Precautionary Principal; (1) and
Recognizing that the American Public Health Association
has previously encouraged the implementation of the
Precautionary Principle with regard to workplace
chemical exposure prevention policies; (2) and
Recognizing that current environmental regulations are
primarily aimed at controlling pollution rather than using
26
primary preventive measures to avoid the use, production,
or release of toxic materials; (3) and
Recognizing that development of enterprises, projects,
technologies, products, and substances, that may
adversely affect public health proceeds through initiatives
that may or may not have considered a range of safer
alternatives; (4) and
_ Recognizing that many of these enterprises, projects,
technologies, products, and substances are considered safe
until proven harmful; and
Recognizing that public health decisions must often be
made in the absence of scientific certainty, or in the
absence of perfect information; and
Recognizing that some industries engaged in the
production, release, or distribution of potentially
hazardous products and processes use their influence to
delay preventive action, arguing that the immediate
expense of redesign to achieve pollution prevention is
unwarranted, lacking scientific certainty about harmful
health effects; (5) and
Recognizing that fetuses, children, and all developing
organisms are often more susceptible to environmental
contaminants than adults, and that agency policies and
decisions often fail to reflect this unique susceptibility; (6)
~ and
Recognizing that proof of cause and effect relationships is
often difficult to establish because of non-specificity of
health effects, long latent periods, subtle changes in
27
function that are difficult to detect without resource-
intensive studies, and complex interactions of variables
that contribute to adverse health effects; (7) and
Recognizing that some lack of scientific certainty is
irresolvable by more data collection; that some residual
lack of scientific certainty is actually the result of
indeterminacy due to multiple factors interacting in
complex systems or due to ignorance about what
questions to ask or what effects to look for; (8) and
Declaring that children and other sensitive populations
are, therefore, in particular need of protection from
environmentally related hazards; and
Recognizing that Presidential Executive Order #13045
requires that all federal agencies, when developing
policies, must explicitly consider their impacts on
children, therefore,
- Reaffirms its explicit endorsement of the Precautionary
Principle as a cornerstone of preventive public health
policy and practice, both in the U.S. and throughout the
world; |
* Encourages governments at all levels, the private sector,
and health professionals to promote and abide by this
principle in order to protect the health and well-being of
all developing children. Thus, APHA calls for explicit
inclusion of the precautionary approach in all federal,
state, and local legislation, rules, or policies intended to
protect children or that may impact the health of children;
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* Urges that whenever an enterprise, project, technology,
product, or substance is proposed for initiation,
manufacture, or use or continued manufacture or use the
goal of public health advocates should be to reduce or
eliminate the creation of conditions that may adversely
impact reproductive health, infants, or children;
¢ Advocates significant increases in pollution prevention
efforts through clean production, assessment of safer
alternatives, energy efficiency, waste minimization, safer
waste disposal methods, and reduced consumption as a
general means to protect children’s health and
development, rather than relying on risk management of
individual hazards; ;
¢ Encourages explicit consideration of the kinds and
magnitude of—harm-—to reproductive health, infants, or
children that may result from an activity and _ its
alternatives;
¢ Encourages explicit consideration of the kinds and
magnitude of uncertainties inherent in assessing potential
harm to reproductive health, infants, or children from an
activity and its alternatives;
¢ Encourages precautionary action to prevent potential
harm to reproductive health, infants, and children, even if
some cause and effect relationships have not been
established with scientific certainty;
¢ Urges scientists to engage in analysis and studies to
develop implementation strategies using the Precautionary
Principle that are based on sound science.
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¢ Enunciates the urgent need for improved research
methods to understand better the additive, cumulative, and
synergistic effects of multiple stressors on children’s
development and health; and.
¢ Urges the United States to honor and explicitly refer to
the Precautionary Principle during negotiations of
internationa! agreements, while working to establish the
Precautionary Principle as a guiding pmnciple of
environmental and health-related international law.
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.