Petition for Writ of Certiorari — Citizens for the Appropriate Placement of Telecommunications Facilities v. Federal Communications Commission

Supreme Com, ULE,

(\D FILED .

00 42 7 SEP 1 3200

No. Loo isn ss . A

; In The

Supreme Court of the United States

¢

CELLULAR PHONE TASKFORCE,

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION AND

THE UNITED STATES OF AMERICA,

Respondents.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

e

PETITION FOR A WRIT OF CERTIORARI

+

Of Counsel: RicHarD I. TarGcow

Counsel of Record

JEANETTE LEBELL

685 Snow Road Post Office Box 1143

Sebastopol, California Sebastopol, California

95472 95473

(707) 824-2856 (707) 829-5190

September, 2000

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

LA)

ee ee

QUESTIONS PRESENTED

1. Whether an agency other than the Environmental

Protection Agency can be excused in its rulemaking from

compliance with National Environmental Policy Act pro-

cedures by use of the “functional compliance” doctrine.

2. Whether, consistent with both the Administrative

Procedures Act and the National Environmental Policy

Act, an agency without expertise in health matters can

engage in rulemaking without submitting significant

health-related comments and evidence to the federal

agencies concerned with health and safety matters, and

do so on the grounds that, despite its lack of expertise, it

does not believe the comments or evidence significant

enough for such a submission.

3. Whether, consistent with the delegation provi-

sions of the federal Constitution, Congress can delegate

to a federal agency the power to set national standards

for a pervasive industry, the effects of whose operations

are experienced by all, without choice, with entirely stan-

dardless delegation legislation.

4. Whether federal agency rulemaking, mandated

by an act of Congress, which preempts local govern-

mental zoning decisions related to health and safety, con-

stitutes a “program or activity” under the Rehabilitation

Act, requiring adherence to its provisions.

il

PARTIES TO THE PROCEEDING

In this Court, the Petitioner filing this Petition is the

Cellular Phone Taskforce, a non-profit, public interest

corporation incorporated in New York.

The parties plaintiff to the proceeding in the Court of

Appeals were: CELLULAR PHONE TASKFORCE, AD-

HOC ASSOCIATION OF PARTIES CONCERNED ABOUT

THE FEDERAL COMMUNICATIONS COMMISSION

RADIO FREQUENCY HEALTH AND SAFETY RULES,

DAVID FICHTENBERG, CITIZENS FOR THE APPRO-

PRIATE PLACEMENT OF TELECOMMUNICATIONS

FACILITIES, JOHN BARDIS, ERICA ZWEIG, of Telecom-

munications Master Plan Coalition of San Francisco,

CHRISTOPHER BEAVER, of Noe Valley Families Against

the Antennas, MAJOR BELKIN, DONNA CASEY, MAG-

GIE FOX, EILEEN LAHEY, MARK R. SHIRLEY, M. SUE

STORM, of Healthy Home Alliance, JOSEPH BOHACZ,

CANDICE BROWN, GARY BROWN of Families for

Appropriate Cellular Tower Siting, SUSAN CLARKE, of

Environmental Health Advocacy League, MARY-

CROUGHAN MINIHANE, LIBBY KELLEY, SILVIA M.

SIEGEL, ANNEGRET C. TOPEL, of Citizens of Marin for

Sensible Communications Planning, JERRY DAVIS, JEAN

FOLEY, of Ulysses Citizens for Responsible Technology,

HOLLY A. FOURNIER, Selectboard Member of Charlotte,

VT and co-chair of Citizens for the Appropriate Place-

ment of Telecommunications Facilities, JULIANNA FREE,

of Lifeline Resources, Inc., ANNE GALLOWAY, of Hard-

wick Action Committee, DAVID GELL, RICHARD GIA-

NATTIASIO, of Northboro Residents for Responsible

Tower Siting, DALE A. NEWTON, JANET R. NEWTON,

iii

PARTIES TO THE PROCEEDING - Continued

BERNARD GREENBERG, LARINDA A. KNOWLTON,

ROGER KNOWLTON, of Thistle Hill Neighborhood Alli-

ance, CATHY BERGMAN-VENEZIA, FRANK GOOD-

RICH, ANDREW J. HILLMAN, MARIJA HUGHES,

MARK HUTCHINS, RALPH E. MUNSTON, of EMR AIlli-

ance, THE EMR ALLIANCE, JULIE E. JORDAN, of Coali-

tion of Concerned Citizens for Responsible Technologies,

JEANNINE KARLSSON, Commissioner of Town of Bed-

ford Conservation Board, PATRICIA KELLEY, S.G. LAW-

RENCE, EMERY LAZAR, DAWN MASON, State of

Washington Representative, DOROTHY MILLER, Advi-

sory Neighborhood Commissioner, EDWARD STEIN-

MAN, PETER DE PIPPO, MICHAEL WORSHAM, THE

COMMUNICATIONS WORKERS OF AMERICA, AFL-

CIO, CLC, CWA LOCAL 7810, RAINER- WALDMAN

ATKINS, ALAN GOLDEN, VIRGINIA J. MOORE-WARD

and FAYE MUELLER-HEBERT of the Rainier Valley Asso-

ciation for Safe Wireless Technology, PATRICIA

VAUGHEY, BILL JENKINS of Olympia Washington Local

7810 of the Washington State Communications Workers of

America (CWA) and the Council of Washington State

CWA Locals, Petitioners. CELLULAR TELECOMMUNI-

CATIONS INDUSTRY ASSOCIATION, NATIONAL

ASSOCIATION OF BROADCASTERS, ASSOCIATION

FOR MAXIMUM SERVICE TELEVISION, INC., ELEC-

TROMAGNETIC ENERGY ASSOCIATION and AT&T

WIRELESS SERVICES, INC., Intervenors. FEDERAL

COMMUNICATIONS COMMISSION and UNITED

STATES OF AMERICA, Respondents. There are no parent

iV

PARTIES TO THE PROCEEDING - Continued

companies nor non-wholly owned subsidiaries to be

listed.

TABLE OF CONTENTS

Page

CPAP SPD PURIEC RIED no ccwsitnccncesvanewseenes i

PARSIES TO) TEES PRRs 5 ccc scccacecases ii

pe eB ops ey | PP e Terre re rie rrr re Vii

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ery err merry erry re 2

CONSTITUTIONAL AND STATUTORY PROVI-

| OT LT CT CUT TCT Te eer ee 2

SEAMEN S GOP FOU CARE ccc cciesccce cc ucowes Cn

A. Factual and Procedural Background.......... 2

B. The Rehabilitation Act Claim ................ 7

C. The Court of Appeals’ Opinion.............. 8

D. The Court of Appeals’ Opinion on Recon-

RID 0 8 5 6 5 hob sh ens h reas ins eas nse ewes - 9

REASONS FOR GRANTING THE PETITION ....... 9

I. THE SECOND CIRCUIT, CONFLICTING WITH

ALL OTHER COURTS WHICH HAVE CONSID-

ERED THE ISSUE, CREATED A “FUNCTIONAL

COMPLIANCE” WAIVER OF THE NEPA

REQUIREMENT OF AN EIS OR EA FOR

RULEMAKING BY A NON-ENVIRONMENTAL

Il. THE FCC VIOLATED BOTH NEPA AND THE

APA IN REFUSING TO ACTIVELY SEEK

HEALTH-AGENCY REVIEW OF THE EVI-

DENCE CONCERNING THE NON-THERMAL

HEALTH EFFECTS OF CELL-PHONE TRANS-

gs es 6 ree

Ill.

IV.

™.

vi

TABLE OF CONTENTS - Continued

Page

ie, Be Be re

THE TELECOMMUNICATIONS ACT, § 704(b),

CONSTITUTES AN UNLAWFUL DELEGATION -

OF LEGISLATIVE AUTHORITY TO THE FCC

BECAUSE THE TCA LACKS AN INTELLIG-

IBLE PRINCIPLE TO WHICH THE AGENCY IS

CPR BO? BOP COINS bn ee cence ceen vcncas

THE SECOND CIRCUIT’S REJECTION OF PETI-

TIONER’S CLAIM UNDER THE REHABILITA-

TION ACT CONFLICTS WITH OTHER

CIRCUITS’ DEFINITIONS OF ‘PROGRAM OR

ACTIVITY’ AS INCLUDING ZONING.........

THE QUESTIONS PRESENTED ARE IMPOR-

MEER 5A t01445 45440 04RK EKA LEO ee

13

15

18

23

vii

TABLE OF AUTHORITIES

CASES

A.L.A. Schechter Poultry Corp. v. United States,

Be SE SP SR 6 oe hes eebieesnundavens ceeue

Action on Smoking and Health v. C.A.B., 699 F.2d

RO Clee ae BOE wad aka ndkacscnsenawesas

Alabama Power Co. v. Costle, 636 F.2d 323 (D.C.

2, repre Terr: rere rrr Tre ty ere Ter

American Power & Light Co. v. SEC, 329 U.S. 90

SUPRA AL ADOC SACRARHAL RY TAG ES Rav oN cRKe Ta KD

American Trucking Ass’ns, Inc. v. EPA, 175 F.3d

1027 (D.C. Cir. 1999), cert. granted, __ U.S. __,

120 S.Ct. 3129, 147 L.Ed.2d 231 (2000) .........

Baltimore Gas & Elec. v. Natural Resources

Defense Council, 462 U.S. 87 (1983)............

Bay Area Addiction Research v. City of Antioch,

S79 BG Fae COA Cle, TGGD). oun cece nnccsnsscccs

Catron County Bd. of Comm’rs v. U.S. Fish and

Wildlife Service, 75 F.3d 1429 (10th Cir. 1996)...

Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d

Ge one eka ckneee $6 caeiuae ees bein ekane

Environmental Defense Fund v. EPA, 489 F.2d

Se as es Oe CN SbA a Kod wa ved eaeie boca

FCC v. Pottsville Broadcasting Co., 309 U.S. 134

SE VK RRAWA bcGh ERA MORN ROL O0s 4 kas Ree eA

Innovative Health Systems v. City of White Plains,

REF Wee Ge CHE GO URED sens ccdencsasvcnsues

J.W. Hampton, Jr. & Co. v. United States, 276 U.S.

Se 6 5s exw Keak ek be aa ee cheer ehio aes ae

Vili

TABLE OF AUTHORITIES - Continued

Lichter v. United States, 334 U.S. 742 (1948)......... 19

Limerick Ecology Action, Inc. v. U.S. Nuclear Reg-

ulatory Comm’n, 869 F.2d 719 (3rd Cir. 1989) ..... 11

Mistretta v. United States, 488 U.S. 361 (1989)....18, 22

National Ass’n of Broadcasters v. FCC, 740 F.2d

De Ss a EE 56k ko oak oa Web eeseeekas 14

National Broadcasting Co. v. United States, 319

Se SOF CUED 4 ho bones eeek «hh ase yaeeeseAbaaasuen 19

Portland Cement Ass’n v. Ruckelshaus, 486 F.2d

Ae ee er er err rere 11

State ex rel. Railroad & Warehouse Comm’n v.

Chicago, M. & St. P. R. Co., 38 Minn. 281, 37

DOs FO SE inches dba k Cen eanebnns sehen enauke 22

Texas Committee on Natural Resources v. Berg-

land, 573 P.2G 201 Ge Cie. 1976)... 6s siascassce. 11

Warm Springs Dam Task Force v. Gribble, 621 F.2d

Ee CPU Salt SO cass Wien cdakedoanedabesavnins 16

WATCH v. Harris, 603 F.2d 310 (2nd Cir. 1979)...... 11

CONSTITUTIONAL PROVISIONS

a GU OR: ES Bok occu cdicnd acd cvche vee 19

ae. PR Be cas ie ckiwccuosceceenioeen 19

' STATUTES AND RULES

DR. Bs Oe Mies is cane seca saaeneves ens erp 8

ae Rs he RM 04 6 608 isk eb atscscer hese 2, 8

WEE 6 IE oo ons asks ts 8

ae a eT eM

a aa

ix

TABLE OF AUTHORITIES - Continued

Page

ee Ge Perr re hore yp i, ae

ee Sas PE AES Snes nce ited hha enakeke naan 23

A Ss Se PIE on wo 04k b en aie-2 SANSKRIT PEALE ERE 8

RS a OTT TEEPE ESET PE TOE Pe rere 8

ee EET EC eOT ET ee TP eC TT eee 12, 15

ie es BAH ca dae hades skeateKkadaes passim

| a ey ee eee rrr rer 20

oe re Pr rrr 20

ee ee er ere 20

i ee 4, 22

reer er eer eT Ter eee 8

I Gee UND OF on isis Wass buxecatasveseess dices 2

Telecommunications Act of 1996, Pub.L.No.

gf eT TLE Te Tee Tree passim

FEDERAL REGULATIONS

ee ae nhac ke bul Keewedeekee ree kan earns 17

Be Sa a rok 5 i08a kee adncciosiverocnece 16

ee Rs Pe eer Teer eT eee eT eee eee 24

er Se EE Ck se Sacred sheer suawe ss vaeedess 24

8 PRE ELEOT TTT eP eT TT OP eeT er TTT Tee 24

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

Notice of Proposed Rule Making: -In the Matter of

Guidelines for Evaluating the Environmental

Effects of Radiofrequency Radiation, 8 FCC red

2DOD, 1599S WEL TIPSUR CHBUEP. oo oe sv casceceasesceens 3

Report and Order, 11 FCC red 15123 (1996) ...... 1, 5, 24

Second Memorandum Opinion ana Order and

Notice of Proposed Rulemaking, 12 FCC red

BSOPS (UGSP). oc cccccccccccccnccescesanessconus passim

1

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The Cellular Phone Taskforce respectfully petitions

for a writ of certiorari to review the judgment of the

Second Circuit Court of Appeals in these consolidated

cases (Nos. 97-4328(L), 98-4003(Con), 98-4005(Con),

98-4025(Con), 98-4122(Con)).

+

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

205 F.3d 82 (2d Cir. 2000) and appears in the appendix of

petitioners Citizens for the Appropriate Placement of

Telecommunications Facilities, et al., hereafter cited sim-

ply as “App.,” but appearing therewith, at A-1-22. The

unpublished opinion denying Cellular Phone Taskforce’s

petition for rehearing, electronically reported at 2000 WL

862305, appears at App. A-23-25. An order denying a

second petition for rehearing by Communications

Workers of America appears at App. A-26.

The two orders of the Federal Communications Com-

mission disposing of its rulemaking, reported at 11 FCC

red 15123 (1996) and 12 FCC red 13494 (1997), have been

lodged with the Clerk of this Court because of their

significant length.

The letters from Richard M. Smith of the FCC, pur-

porting to respond to and dispose of the appeal regarding

petitioner’s Rehabilitation Act complaint, dated July 14,

1997 and Feburary 2, 1998, appear at App. A-43-44 and

App. A-49-52.

JURISDICTION

The Court of Appeals entered its Opinion on Febru-

ary 18, 2000; its first order denying a petition for rehear-

ing on June 6, 2000; and its second order denying a

petition for rehearing on June 15, 2000. Pursuant to

Supreme Court Rule 13, this Petition is filed within 90

days of that order. The jurisdiction of this court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The relevant constitutional, statutory, and regulatory

provisions are included in the aforementioned appendix

filed with the petition of petitioners Citizens for the

Appropriate Placement of Telecommunications Facilities,

et al.

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STATEMENT OF THE CASE

A. Factual and Procedural Background

The Cellular Phone Taskforce consists of individuals

concerned about the radiation emitted from cellular tele-

phone (and similar Radio Frequency - “RF”) transmitting

facilities. Many are electrically sensitive, meaning hyper-

sensitive to non-ionizing (i.e., non-nuclear) radiation.

They are trapped, like Alice, in a Wonderland in which

they feel everyday non-thermal effects of the RF emis-

sions — some to the extent of having been driven literally

from their city homes to rural locations lacking such

emissions — and yet in which the non-health-related regu-

latory agency to which their health has been entrusted

ignored the evidence of their travails, failed to present

that evidence to its sister agencies which are concerned

with health and safety, and had Congress and the FCC

preempt their local governments from decisions which

might protect their health. Instead, they had to sit by and

watch while the FCC relied on an industry-dominated

organization’s finding that there was “no reliable scien-

tific data” connecting non-thermal exposure to radio fre-

quency transmissions and human health. App. A-9.

Although petitioner does not agree in every particu-

lar with the background facts described by the Court of

Appeals, and reserves the right to challenge that court's

findings should this petition be granted, petitioner com-

mends to the Court, for the purposes of this petition, the

factual background set forth both in the lower court’s

opinion, App. A-3-5, and in the Petition of the Citizens

for the Appropriate Placement, etc. Accordingly, the dis-

cussion here will endeavor to be brief.

In 1993, the FCC sought to update its 1985 guidelines

for RF radiation from its licensees’ transmitting facilities,

and issued proposed new guidelines for notice and com-

ment. See Notice of Proposed Rule Making: In the Matter

of Guidelines for Evaluating the Environmental Effects of

Radiofrequency Radiation, 8 FCC rcd 2849, 1993 WL

757412 (1993), cited in Court of Appeals’ opinion at App.

A-4. After receiving “submissions,” App. A-4, from

health-related sister agencies, including the Environmen-

tal Protection Agency (“EPA”), the Food and Drug

Administration (“FDA”), the Occupational Safety and

Health Administration (“OSHA”) and the National Insti-

tute for Occupational Safety and Health (“NIOSH”), the

FCC adopted standards which combined standards rec-

ommended by two industry-dominated groups, the

American National Standards Institute (“ANSI”) and the

National Council on Radiation Protection and Measure-

ments (“NCRP”). One aspect of this rule-setting round is

most important for this petition: There is no evidence on

the record, nor has the FCC ever affirmatively asserted,

that it ever specifically sought review by the health-

related agencies of the comments submitted to it during

the first rulemaking round regarding RF effects upon the

electrically sensitive and others.

Meanwhile, Congress, anxious to encourage nation-

wide access to cellular and other new communications

devices, passed the Telecommunications Act of 1996,

Pub.L.No. 104-104, 110 Stat. 56 (“TCA”). The TCA

instructed the FCC to finish its rulemaking regarding the

siting of and permissible emission levels of cell-phone

and other wireless service transmission facilities. It also

included three provisions which are the subject of consti-

tutional objections raised below and in this petition. It

ordered local governments to act on any request for

authorization to place transmitting facilities within a

“reasonable period of time,” 47 U.S.C. § 332(c)(7)(B)(ii),

App. A-29; it forbade local governments from taking any

action which had the effect of prohibiting the provision of

personal wireless services, 47 U.S.C. § 332(c)(7)(B)(i)(ID,

App. A-29; and it preempted state and local governments

from regulating the placement of such facilities on the

basis of the environmental effects of RF radiation as long

as it was within FCC guidelines. See 47 U.S.C.

§ 332(c)(7)(B)(iv), App. A-30. The FCC issued the guide-

lines within the mandated time limits. The guidelines

_——-* -

——O————aaeEeEeEeEeEeEeEeEeEe—eeEeEeEeE—EEEEe

included some of the substantive emissions standards

challenged in the court below, and also adopted the

TCA’s prohibition of state and local governments’ denial

of siting applications on the basis of environmental con-

cerns, which the order interprets to include health effects.

See Report and Order (“First Order”), 11 FCC red 15123

(1996), lodged with the Court, at 60-61, | 166.

The various petitioners below, among others, sought

reconsideration of the First Order, and submitted literally

thousands of pages of evidence concerning the non-ther-

mal effects of RF radiation on humans. Again, there is

nothing on the record to indicate that the FCC affirma-

tively sought comment on this evidence from its sister

health-related agencies. Indeed, in both the Second Order

which resulted from the reconsideration round, Second

Memorandum Opinion and Order and Notice of Pro-

posed Rulemaking (“Second Order”), 12 FCC red 13494

(1997), lodged with the Court, and in the court below, the

FCC simultaneously denied that it had the expertise to

evaluate the health-related evidence and yet asserted that

such an action was unnecessary because the new evi-

dence submitted during the reconsideration round was

not any different than that which had been submitted

during the initial round.! So a “non-expert” agency

1 During oral argument before the Second Circuit, the

following colloquy took place between the = panel and

the attorney for the FCC:

JUDGE WALKER: Can you address the other point

that was made here about the agency’ s reconsideration of

the other health related agencies’ view points and the

environmental agencies’ view points?

- one with the divided missions both to promote the

industry and to safeguard the population — arrogated

MR. MARCUS: I think that the agencies bent

over backwards to consider the other health and

safety -

JUDGE WALKER: They’re [petitioners are]

saying on reconsideration that wasn’t the case.

MR. MARCUS: Okay. Well, for one thing, the

agency had already consulted extensively with EFA

[sic] FDA, OSHA, NIAC [sic]. The agency had

developed its standards based on the

recommendations of two expert scientifically loaded

standard-setting bodies.

The agency took under advisement the request

that it consult more with the health and safety

agencies, and in the Reconsideration Order it said

that we decline to do that. I'll find that for you ina

minute.

JUDGE NEWMAN: You know that they did.

The question is: Having disclaimed their own

expertise, why wasn’t it arbitrary not to go back to the

expert agencies with what is alleged to be substantial

added evidence?

Transcript of Oral Argument, April 5, 1999 (“Tr.”) at 38-39. After

further similar exchanges, the court ended up giving the answer

which it adopted in its opinion:

JUDGE SACK: When it’s a question of health

impacts, why don’t you necessarily go back to the

agencies that deal with health impacts?

MR. MARCUS: Well, we did go to the agencies

that dealt with health impacts. We went and we

discussed it with them extensively.

JUDGE SACK: Not on the reconsideration?

MR. MARCUS: Not on the reconsideration

because by that point we had consulted with these

agencies extensively.

ee

to itself the right to judge whether evidence regarding

health and safety was important enough to submi: to the

agencies with the expertise to evaluate it. Lewis Carroll

could not have imagined a more bizarre (and unfortu-

nate) result.

B. The Rehabilitation Act Claim

In addition to filing a timely appeal of the FCC’s

rules in the Second Circuit, petitioner also filed a discrim-

ination claim against the FCC under the Rehabilitation

Act of 1973, as amended, 29 U.S.C. § 701, et seq. Many of

petitioner’s members suffer from a medical condition

which causes hypersensitivity to electromagnetic, includ-

ing RF, radiation. Petitioner alleged that the FCC, by

conducting a rulemaking without regard to petitioner’s

members’ disabilities, had discriminated against them on

the basis of their disability. This claim and a subsequent

appeal were summarily denied by the FCC, acting inap-

propriately through a staff member, claiming that its

rules could not be discriminatory because they have no

JUDGE WALKER: Does your argument have to

be that the materials submitted on reconsideration

were not materially different from the materials that

you received in the first instance?

MR. MARCUS: That’s what the Commission

basically found.

Tr. at 44-45. The flaw here, as noted, is that the Commission did

not have the expertise to make the judgment regarding the

materiality of the submissions on the reconsideration round any

more than it had the expertise to evaluate the substantive

importance of that evidence.

“effect” until implemented by the FCC’s licensees. Letter

of Richard M. Smith, February 2, 1998, App. A-49-52.

C. The Court of Appeals’ Opinion

The Court of Appeals had jurisdiction under 28

U.S.C. § 2342(1) and 47 U.S.C. § 402(a) because petitioner

petitioned that court to review a final order of the FCC;

and additionally, under 29 U.S.C. § 794a(a)(2) and 42

U.S.C. § 2000d-2 with respect to petitioner’s discrimina-

tion complaint.

The Court of Appeals rejected all of the various peti-

tioners’ claims, ruling, inter alia, that: (1) the FCC did not,

in its First Order, violate the Administrative Procedure

Act (“APA”), 5 U.S.C. § 551, et seq., by arbitrarily and

capriciously failing to adequately consider the evidence

of harmful effects from non-thermal levels of radiation

and failing to account for the cumulative effects of radia-

tion in creating categorical exemptions for certain facili-

ties for routine environmental assessment, see App.

A-7-12, A-15-16; (2) the FCC in its rulemaking did not

have to comply with relevant provisions of the National

Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et

seq., and the rules promulgated thereunder by the Coun-

cil on Environmental Quality (“CEQ”) by failing to com-

plete either an Environmental Impact Statement (“EIS”)

or an Environmental Assessment (“EA”) followed by a

finding of no significant impact (“FONSI”), see App.

A-16-19; (3) the FCC did not err in its interpretation of the

Act in such a way as to preempt local governments from

zoning regulation of transmission sites on the basis of

health and safety, see App. A-19-21; and (4) the Tenth

Amendment did not preclude the federal preemption of

local authority, see App. A-21.

D. The Court of Appeals’ Opinion on Reconsideration

On reconsideration, the Court of Appeals reversed its

earlier rejection on exhaustion grounds of petitioner’s

ADA and Rehabilitation Act claims, App. A-6, ruling that

petitioner had done all it reasonably could to secure a

final agency determination, App. A-24. On the merits,

however, the court again rejected the claims. Regarding

petitioner’s claim that the agency violated Title II of the

ADA by forcing state and local governments to discrimi-

nate against electrically sensitive people, the court held

that the FCC could not itself be made liable under the

ADA, see App. A-25. Regarding petitioner’s Rehabilita-

tion Act claim, the court held that the Guidelines, by

allowing proliferation of the damaging towers, did not

thereby deny electrically sensitive people the benefits of a

“program or activity” of the FCC. Ibid.

o

REASONS FOR GRANTING THE PETITION

I. THE SECOND CIRCUIT, CONFLICTING WITH

ALL OTHER COURTS WHICH HAVE CONSID-

ERED THE ISSUE, CREATED A “FUNCTIONAL

COMPLIANCE” WAIVER OF THE NEPA REQUIRE-

MENT OF AN EIS OR EA FOR RULEMAKING BY

A NON-ENVIRONMENTAL AGENCY

The Court of Appeals recognized that both NEPA

and the rules of the CEQ require agencies to prepare an

EIS or an EA, followed by a FONSI, for rulemaking such

10

as that involved here, and that the FCC admittedly did

not do so. App. A-16-17. Nevertheless, the court, in an

unprecedented broadening of the concept, held that the

FCC had engaged in functional compliance. In applying

functional compliance to a non-environmental agency, the

Second Circuit decision conflicts with every other court

that has considered the matter.

Even the case cited by the Court of Appeals makes

explicit the limitations on the doctrine. The Court of

Appeals justified its application of the functional compli-

ance test by quoting a sentence from the penultimate

paragraph of Environmental Defense Fund v. EPA, 489 F.2d

1247, 1257 (D.C. Cir. 1973):

“a

[WJhere an agency is engaged primarily in an

examination of environmental questions, where

substantive and procedural standards ensure

full and adequate consideration of environmen-

tal issues, then formal compliance with NEPA is

not necessary, but functional compliance is suffi-

cient.’ ” App. A-17.

Tellingly, however, the court in this case not only ignored

the language at the beginning of the above-quoted sen-

tence — “where an agency is engaged primarily in an

examination of environmental questions,” which the FCC

surely is not — it also ignored the crucial next two sen-

tences:

“We are not formulating a broad exemption

from NEPA for all environmental agencies or

even for all environmentally protective regula-

tory actions of such agencies. Instead, we delin-

eate a narrow exemption from the literal

requirements for those actions which are under-

taken pursuant to sufficient safeguards so that

11

the purpose and policies behind NEPA will nec-

essarily be fulfilled.” Environmental Defense Fund

v. EPA, supra, 489 F.2d at 1257.

See also Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375,

387 (D.C. Cir. 1973) (“we establish a narrow [functional

compliance] exemption from NEPA, for EPA determina-

tions. .. . NEPA must be accorded full vitality as to non-

environmental agencies. . . . ”)

Indeed, petitioner’s research has failed to find any

case in which a non-environmental agency was allowed

to avoid an EIS or EA by virtue of functional compliance.

To the contrary, even natural resource agencies have been

denied functional equivalence and have been required to

comply with NEPA, e.g., Catron County Bd. of Comm'rs v.

U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996)

(Fish and Wildlife Service must comply with both NEPA

and Endangered Species Act “ESA”); Texas Committee on

Natural Resources v. Bergland, 573 F.2d 201 (5th Cir. 1978)

(Forest Service must comply with NEPA). Up until the

Second Circuit’s opinion in this case, it appears that every

case that has considered granting a non-environmental

agency functional compliance status has refused to do so,

e.g., Limerick Ecology Action, Inc. v. U.S. Nuclear Regulatory

Comm'n, 869 F.2d 719 (3rd Cir. 1989); WATCH v. Harris,

603 F.2d 310 (2nd Cir. 1979) (H.U.D.).

The importance of this is manifest: If the Second

Circuit’s expansion of functional compliance is allowed to

stand, it both creates a conflict with the cases cited above

and, more importantly, creates a loophole in the require-

ments of NEPA that swallows the rule.

12

II. THE FCC VIOLATED BOTH NEPA AND THE APA

IN REFUSING TO ACTIVELY SEEK HEALTH-

AGENCY REVIEW OF THE EVIDENCE CON-

CERNING THE NON-THERMAL HEALTH

EFFECTS OF CELL-PHONE TRANSMITTER

RADIATION

Federal agencies are required to consult with agen-

cies that have special expertise with respect to any envi-

ronmental impact involved. 42 U.S.C. § 4332(C), App.

A-32. As noted in the Statement of the Case, supra, the

FCC admitted that it failed to refer to health-related

agencies the voluminous evidence submitted, regarding

RF effects on the electrically sensitive and others, in the

reconsideration round. As a matter of fact, there is noth-

ing on the record, nothing, that shows that the FCC

actively sought health agency review of that evidence at

all during rulemaking, except for early “consultation”

immediately following issuance of the 1993 notice of pro-

posed rule-making. Indeed, the FCC ignored a statement

by NCRP that the “existence of non-thermal effects ‘is

clouded by a host of conflicting reports and opinions.’ ”

Quoted in Court of Appeals’ Opinion, App. at A-9. Sim-

ilarly, in its Second Order, the FCC claimed that “[iJt

would be impracticable for us to independently evaluate

the significance of studies purporting to show biological

effects, determine if such effects constitute a safety haz-

ard, and then adopt stricter standards than those advo-

cated by federal health and safety agencies.” Second

Order, lodged with Court, at 12, J 31, quoted by Court of

Appeals at App. A-9. In fact, however, in the face of

“conflicting reports and opinions” and its own admitted

lack of expertise, the FCC declined to submit the host of

13

evidence submitted on this subject to the health-related

agencies. Its failure so to do was arbitrary and capricious

under both the APA and NEPA.

A. The Administrative Procedure Act Violations

The APA’s guarantee of the right of the public to

comment on proposed rules “ ‘is meaningless unless the

agency responds to signficant points raised by the pub-

lic.’ The need for discussion is paramount precisely

because evidence was presented in support of, and in

opposition to, most of the proposals.” Action on Smoking

and Health v. C.A.B., 699 F.2d 1209, 1217 (D.C. Cir. 1983),

quoting Alabama Power Co. v. Costle, 636 F.2d 323, 384

(D.C. Cir. 1979). Yet that is what the FCC did here. For

example, in { 11 at page 6 of the First Order the FCC

admitted that “more than 100 parties, including . . .

individuals, submitted comments,” yet in {¥ 15-27, at

pages 7-12 of that order, only comments by industry and

agencies are described. In {] 25-28 of the Second Order,

at 10-11, the FCC acknowledges the concerns of several of

the petitioners below and the evidence submitted, citing

in particular petitioner’s claims that the emissions levels

ignored those who were electrically sensitive, and that

“‘perhaps 2%’'” of the population were susceptible to

becoming electrically sensitive. Second Order, at 11, { 26.

Similarly, Dr. Marjorie Lundquist “suggests” that while

the existence of non-thermal effects is controversial,

““the scientific consensus is swinging in favor of their

existence.’ ” Ibid. Moreover, Dr. Lundquist maintained

that the 1992 ANSI/IEEE guidelines relied upon by the

14

FCC were “not consistent with electromagnetic field the-

ory, lack a sound scientific basis and may, therefore,

be presumed ‘to be inadequately protective of public

health.’ ” Id. at { 27. Yet in [ 111, at 45, the Second Order

states: “There is no evidence to suggest that transmitters

or facilities that comply with our guidelines will cause

adverse health effects.” This from an agency that both

disclaimed expertise and failed to seek on the recon-

sideration round expert agency comment on the very

evidence it rejects.

In Action on Smoking and Health v. C.A.B., supra, the

court rejected as arbitrary and capricious the agency’s

failure to consider the effects of passive smoking on

health because “the Board found that ‘[t]he evidence of a

link between “passive smoking” and cancer is . . . slight

and controversial.’ ” Id. at 1218. Yet that is precisely what

the FCC did here. The Court of Appeals’ finding in this

case that the FCC’s failure to consider or to seek guidance

from the expert agencies on the evidence of dangerous RF

effects, no matter how slight or controversial it was, was

not arbitrary and capricious, is in direct conflict with

these aforecited D.C. Circuit rulings.

The Court of Appeals’ holding in this case, which

approved the FCC’s APA errors, was also in conflict with

its sister circuit’s ruling in National Ass'n of Broadcasters v.

FCC, 740 F.2d 1190, 1211 (D.C. Cir. 1984), which noted

that “an incremental approach to agency decision-making

is least justified when small errors in predictive judg-

ments can have catastrophic effects on the public wel-

fare....” Yet in this case, petitioners and many others

before the FCC and the Second Circuit fairly screamed

15

that the transmitter emissions had profound and delete-

rious effects on their health. For the FCC to have

eschewed serious health-agency evaluation of these

claims, while simultaneously disclaiming its own exper-

tise, was the very model of arbitrary and capricious

agency rulemaking.

B. The NEPA Violations

As noted above, there is no evidence that the FCC

specifically submitted to the health-related agencies the

comments it received both before and after the First

Order raising the issue of non-thermal harmful effects

from cell-phone transmitters operating under its pro-

posed and adopted guidelines. As also noted above, there

is affirmative evidence, at oral argument and in the Sec-

ond Order, that the FCC at minimum failed to submit that

evidence or discuss it with the relevant agencies on the

reconsideration round. This failure is arbitrary and capri-

cious, and contrary to the procedural requirements of

NEPA, 42 U.S.C. § 4332(C), App. A-32, and the mandate

therein to comply with NEPA “to the fullest extent possi-

ble.”

“When new information comes to light the

agency must consider it, evaluate it, and make a

reasoned determination whether it is of such

significance as to require implementation of for-

mal NEPA filing procedures [i.e., an EIS]. Rea-

sonableness depends on such factors as the

environmental significance of the new informa-

tion, the probable accuracy of the information,

the degree of care with which the agency con-

sidered the information and evaluated its

16

impact, and the degree to which the agency

supported its decision not to supplement with a

statement of explanation of additional data.”

Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017,

1024 (9th Cir. 1980).

In this case, the Court of Appeals’ finding that both

the FCC’s First and Second Orders functionally satisfied

NEPA requirements is contradicted by the FCC’s failure

to consult with the expert agencies in any meaningful

way after 1993 and in particular on the reconsideration

round, especially in light of the FCC’s admitted lack of

expertise to perform the reasoned evaluation under the

factors as set forth in Warm Springs, supra.2

cumulative impacts of a project. 40 CFR § 1508.27(b)(7).3

2 There are situations which justify a court’s utmost

deference to agency determinations. Such situations arise in

cases which address agencies dealing with issues within their

areas of expertise at the frontiers of science, e.g., Baltimore Gas &

Elec. v. Natural Resources Defense Council, 462 U.S. 87, 104, 103

S.Ct. 2246, 76 L.Ed.2d 437 (1983). Such deference is unwarranted

where the issue is outside the scope of the agency’s expertise.

3 40 CFR § 1508.27 defines “significantly” for purposes of

NEPA, and provides, in relavant part:

:

NEPA also requires an agency to evaluate the

“Significantly as used in NEPA requires

considerations of both context and intensity:

. . . (b) Intensity. This refers to the severity of

impact. Responsible officials must bear in mind

that more than one agency may make decisions

about partial aspects of a major action. The

following should be considered in evaluating

intensity:

saan

17

When there is scientific uncertainty regarding signifi-

cant adverse impacts, the agency must either obtain the

information to resolve the uncertainty or evaluate that

uncertainty using a worst case analysis. 40 CFR

§ 1502.22.4 The FCC’s failure to reconsult with the expert

. . . (7) Whether the action is related to other

actions with individually insignificant but

cumulatively significant impacts. Significance

exists if it is reasonable to anticipate a

cumulatively significant impact on the

environment. Significance cannot be avoided

by terming an action temporary or by

breaking it down into small component

parts.”

4 40 CFR § 1502.22, concerning incomplete or unavailable

information, provides in relevant part:

“(b) If the information relevant to reasonably

foreseeable significant adverse impacts cannot be

obtained because the overall costs of obtaining it are

exorbitant or the means to obtain it are not known,

the agency shall include within the environmental

impact statement:

(1) A statement that such information is

incomplete or unavailable; (2) a statement of the

relevance of the incomplete or unavailable

information to evaluating reasonably foreseeable

significant adverse impacts on the human

environment; (3) a summary of existing credible

scientific evidence which is relevant to

evaluating the reasonably foreseeable significant

adverse impacts on the human environment; and

(4) the agency’s evaluation of such impacts based

upon theoretical approaches or research methods

generally accepted in the scientific community.

For the purposes of this section, “reasonably

foreseeable” includes impacts which have catastrophic

consequences, even if their probability of occurrence is

18

agencies despite its own lack of expertise highlights the

arbitrary and capricious aspect of its decision and casts

additional doubts on the validity of the required cumula-

tive impacts analysis and worst-case analysis.

Ill. THE TELECOMMUNICATIONS ACT, § 704(b),

CONSTITUTES AN UNLAWFUL DELEGATION

OF LEGISLATIVE AUTHORITY TO THE FCC

BECAUSE THE TCA LACKS AN INTELLIGIBLE

PRINCIPLE TO WHICH THE AGENCY IS

DIRECTED TO CONFORM

“The non-delegation doctrine is rooted in

the principle of separation of powers that

underlies our tripartite system of government.

The Constitution provides that ‘[a]ll legislative

Powers herein granted shall be vested in a Con-

gress of the United States,’ . . . So long as

Congress ‘shall lay down by legislative act an

intelligible principle to which the person or

body authorized to [exercise the delegated

authority] is directed to conform, such legisla-

tive action is not a forbidden delegation of legis-

lative power.’ ” Mistretta v. United States, 488

U.S. 361, 371-372, 109 S.Ct. 647, 102 L.Ed.2d 714

(1989), quoting J].W. Hampton, Jr. & Co. v. United

States, 276 U.S. 394, 406, 409, 48 S.Ct. 348, 72

L.Ed. 624 (1928).

The TCA is a “forbidden delegation of legislative

power” because it lacks “an intelligible principle.” Ibid.

low, provided that the analysis of the impacts is

supported by credible scientific evidence, is not

based on pure conjecture, and is within the rule

of reason.” (Emphasis added.)

19

This improper delegation is in violation of Article 1, Sec.

1, and Article 1, Sec. 8, para. 18 of the Constitution, App.

A-28, as interpreted by this Court in A.L.A. Schechter

Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79

L.Ed. 1570 (1935).

The delegation in the TCA simply states:

“Within 180 days after the enactment of this Act,

the Commission shall complete action in ET

Docket 93-62 to prescribe and make effective

rules regarding the environmental effects of

radio frequency emissions.” § 704(b), App. A-31

This Court has on occasion approved delegations of

power which have been less than models of clarity. In

American Power & Light Co. v. SEC, 329 U.S. 90, 104, 91

L.Ed. 103, 67 S.Ct. 133 (1946), this Court explained that

certain seemingly vague delegations “derive much mean-

ingful context from the purpose of the Act, its factual

background and the statutory context in which they

appear.” Similarly, in Lichter v. United States, 334 U.S. 742,

783, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948), this Court upheld

delegation of authority in light of pre-existing adminis-

trative practice.>

> Neither of the two cases relied on by the FCC in its brief

below are on point. National Broadcasting Co. v. United States, 319

U.S. 190, 225-226, 63 S.Ct. 997, 87 L.Ed. 1344 (1943) and FCC v.

Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 84

L.Ed. 656 (1940) support the broad delegation of authority to the

FCC (under The Communications Act of 1934) to issue or revoke

licenses that would serve the “public interest, convenience, or

necessity.” The Congressional concern behind the 1934

legislation was expressly to avoid, in the absence of

governmental control, monopolistic domination in the

20

In this case, there is no such saving principle, and

Congress failed to provide even a hint of a standard by

which the FCC was to formulate its rules. Nor does the

legislative history of the TCA provide any assistance.

There was no floor debate which clarifies what standards

or principles the FCC should use. Neither was guidance

provided to the FCC as to how to balance its new respon-

sibility in health and environment with its other man-

dates which might conflict - mandates to promote

advanced technologies and universal service.®

The D.C. Circuit has recently ruled that Sections 108

and 109 of the Clean Air Act, as construed by the EPA,

effect “an unconstitutional delegation of legislative

power” because the agency had “articulated no intellig-

ible principle” in promulgating air quality standards.

American Trucking Ass’‘ns, Inc. v. EPA, 175 F.3d 1027, 1033

broadcasting field. Pottsville Broadcasting Co., supra at 137. The

broad delegation of authority that was upheld in these two

cases has no bearing on the impermissibility of the scope of

authority in the TCA, which had the effect not of protecting the

public from industry monopoly but of a broad delegation to

promote an industry without the hindrance of protective public

health standards or the regulatory rights of the states. The

delegation in these cases was also within the FCC’s area of

expertise and administrative practice.

6 These mandates are found in several laws. “It shall be the

policy of the United States to encourage the provision of new

technologies and services to the public.” 47 U.S.C. § 157(a).

“Access to advanced telecommunications and information

services should be provided in all regions of the Nation.” 47

U.S.C. § 254(b)(2). And in 47 U.S.C. § 309(j)(3)(D), concerning

competitive bidding for licenses or permits, the FCC is directed

to promote objectives which include “efficient and intensive use

of the electromagnetic spectrum.”

i

21

(D.C. Cir. 1999), cert. granted, __U.S.__, 120 S.Ct. 3129,

147 L.Ed.2d 231 (2000). The D.C. Circuit found that “the

standards in question affect the whole economy, requiring

a ‘more precise delegation than would otherwise be the

case.’ ” Id. at 1037, quoting Schechter Poultry, supra, at 553.

It is noteworthy that this invalidated delegation fell

within the implementing agency’s area of expertise, yet

the Second Circuit in this case validated Section 704’s

bare-bones delegation which required guidelines at least

partially outside the FCC’s area of expertise. See App.

A-21 (rejecting petitioners’ remaining constitutional

claims as without merit).

This case is reminiscent of Schechter Poultry, supra,

where Congress gave sweeping power over the nation to

“codes of fair competition” supplied to the President by

trade or industry associations. 295 U.S. at 529. Such a

delegation, the Court held, was “unknown to our law,

and is utterly inconsistent with the constitutional pre-

rogatives and duties of Congress.” Id. at 537. In the

instant case, Congress, without other instruction, told the

FCC to complete a rulemaking in which that agency had

already proposed to adopt either the 1992 ANSI standard

or that of another private organization, the NCRP. First

Order, at 5, { 10, and 6, { 12. The rulemaking was

originally designed merely to comply with NEPA, as to

when the FCC’s licensees would have to prepare an EA.

First Order, at 3-4, [ 6. But § 704(a) of the TCA gave these

rules new sweeping power over the nation:

22

“No state or local government or instru-

mentality thereof may regulate the placement,

construction, and modification of personal wire-

less service facilities on the basis of the environ-

mental effects of radio frequency emissions to

the extent that such facilities comply with the

Commission’s regulations concerning such

emissions.” 47 U.S.C. § 332(c)(7)(B)(iv), App.

A-30.

The standardless delegation approved by the Court

of Appeals in this case is all the more constitutionally

suspect for its granting to a non-health-related agency

powers to regulate in an area so directly related to health.

Seldom has a Congressional grant of legislative authority

to an executive agency been so sweeping, so brief, and so

out of context with the agency’s other enabling legisla-

tion. The guidance of this Court is needed as to whether a

delegation of power to an executive agency in a field so

far removed from the agency’s expertise, without any

other guidance, which has both economic and environ-

mental impacts on every single municipality in the

United States, satisfies the nondelegation test articulated

in Mistretta, supra, or whether, “ ‘If such a power is to be

exercised at all, it can only be satisfactorily done by a

board or commission, constantly in session, whose time is

exclusively given to the subject.’” Hampton Jr. & Co.,

supra, 276 U.S. at 406, quoting State ex rel. Railroad &

Warehouse Comm'n v. Chicago, M. & St. P. R. Co., 38 Minn.

281, 301, 37 N.W. 782 (1888).

23

IV. THE SECOND CIRCUIT’S REJECTION OF PETI-

TIONER’S CLAIM UNDER THE REHABILITA-

TION ACT CONFLICTS WITH OTHER

CIRCUITS’ DEFINITIONS OF "PROGRAM OR

ACTIVITY’ AS INCLUDING ZONING

In its opinion on rehearing, the Court of Appeals

rejected petitioner’s complaint under the Rehabilitation

Act (“RA”), 29 U.S.C. § 701, et seq., on the grounds that

the RA did not apply because electrically sensitive people

were not being excluded under the FCC’s First or Second

. Orders from a “program or activity” of the FCC. See App.

A-25. In doing so, the Court of Appeals ignored and

conflicted with ample authority from other circuits (and

within its own) that zoning decisions constitute a “pro-

gram or activity.””

In Bay Area Addiction Research v. City of Antioch, 179

F.3d 725, 731 (9th Cir. 1999), the Ninth Circuit held that

zoning constitutes a program or activity under the Reha-

| bilitation Act. The court went on to state “The Rehabilita-

| tion Act and the ADA apply to zoning because zoning ‘is

| a normal function of a governmental entity.’ (Citations

omitted.)” Ibid. In Innovative Health Systems v. City of

White Plains, 117 F.3d 37, 49 (2nd Cir. 1997), the Second

| Circuit held that a claim was cognizable under the Reha-

: bilitation Act based on the appellees having been denied

the benefit of a zoning decision without regard to the

7 It should be noted that the Court of Appeals’ decision on

rehearing did not address the issues of whether electrically

sensitive persons are “otherwise qualified individual[s] with

handicaps” under 29 U.S.C. § 794(a), App. A-33. Accordingly,

for purposes of this petition, that issue is not before this Court.

iis

24

disabilities of the IHS’s clients. Thus, to the extent that

the TCA and the Second Order preclude zoning decisions

on the very issues that affect the electrically sensitive,

they constitute zoning decisions which are, therefore,

subject to the Act. Indeed, in drafting its own rules to

implement the RA, the FCC itself also clarified that “the

Commission must comply with these non-discrimination

requirements when establishing safety standards for the

operations of licensees.” Report and Order, 2 FCC red

Vol. 8 at 2203, App. A-38.

The Court of Appeals’ holding that the RA did not

apply in this case also had the effect of rejecting peti-

tioner’s claims that the FCC’s treatment of petitioner’s

RA complaint amounted to wholesale violations of its

own rules and the rules promulgated under the RA. The

FCC is required to accept and investigate all complaints

within its jurisdiction. 47 CFR § 1.1870(d)(1), App. A-36.

The decision regarding the investigation of the complaint

must include findings of facts and conclusions of law and

a notice of the right to appeal. 47 CFR § 1.1870(g), App.

A-37. An appeal will not be heard by the person who

made the initial determination on the complaint, 47 CFR

§ 1.1870(i), ibid.; Report and Order, supra, at 2208, App.

A-39. An appeal will be decided within 60 days. 47 CFR

§ 1.1870(j), App. A-37. In this case, the FCC failed to

investigate petitioner’s complaint; failed to include find-

ings of facts, conclusions of law and a notice of the right

to appeal the FCC’s response to the complaint; failed to

have a different person handle the appeal; and delayed

116 days in responding to the appeal which was wrong-

fully denied. See Complaint filed on February 3, 1997,

-App. A-40-42; Letter response by Richard M. Smith, dated

25

July 14, 1997, App. A-43-44; the Appeal filed on October

8, 1998, App. A-45-48; and the FCC’s letter response by

Richard M. Smith dated February 2, 1998, App. A-49-52.

Simply put, the Court of Appeals’ decision precluding

application of the RA to the rulemaking at issue here had

the effect of gutting both the RA and the regulations

promulgated to enforce it.

V. THE QUESTIONS PRESENTED ARE IMPORTANT

As suggested by the fact that at least three, and

perhaps more, separate petitions for certiorari will be

filed in this case, its impacts are as broad as the Court of

Appeals’ findings were in error. At the level of adminis-

trative jurisprudence, the lower court’s opinion conflicts

with numerous cases of its own, its sister circuits, and

this Court, on constitutional, statutory, and regulatory

issues. This case raises issues, some of them covered in

our co-petitioner’s petitions, concerning the Tenth

Amendment, NEPA, the Rehabilitation Act, the APA, and

congressional delegation of power. It is hard to imagine a

case more bristling with issues for this Court’s resolution

and guidance.

The legal discussions, however, too easily mask the

underlying human dimension of this tragic exercise in

technological advancement. The Court of Appeals’ deci-

sion sanctioned Congress’s and the FCC’s preemption of

local control over, and ignored real evidence concerning,

the actual dilatory health effects of widespread cellular

phone transmission on a portion of the population who

have been impacted beyond repair. The electrically sensi-

tive have been by these rulings cast out both from their

26

homes and from the halls of their government's decision-

making. This result should not be allowed to stand.

e

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Of Counsel: RICHARD I. TaRGow

Counsel of Record

JEANETTE LEBELL

685 Snow Road Post Office Box 1143

Sebastopol, California Sebastopol, California

95472 95473

(707) 824-2856 (707) 829-5190

September, 2000

oe Se ae PI aio ‘