Reply Brief — Citizens for the Appropriate Placement of Telecommunications Facilities v. Federal Communications Commission

Supreme Court of the United States ws

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CELLULAR PHONE TASKFORCE,

Petitioner,

FEDERAL COMMUNICATIONS COMMISSION AND

THE UNITED STATES OF AMERICA,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

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REPLY TO OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

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Of Counsel: Ricuarp I. Tarcow

j es. Counsel of Record

685 Snow Road Post Office Box 1143

Sebastopol, California Sebastopol, California

95472 95473

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

December, 2000

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OR CALL COLLECT (402) 342-283

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TABLE OF AUTHORITIES

CAsEs:

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

1209 (OC. Cie. FOUR). «nce cca vncccedocentoscess

California Ass'n of the Physically Handicappec., Inc. v.

FCC, 840 F.2d 88 (D.C. Cir. 1988) ..............

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

Bs 655 60K Sashes Res 655 o SN Ube Sembee

Cellular Phone Taskforce v. FCC, 217 F.3d 72 (2d Cir.

2000) (Opn. on Rhrng.)........---. eee eee eee eee

Community Television of So. Cal. v. Gottfried, 459

U.S. 498, 103 S.Ct. 885, 74 L.Ed.2d 705 (1983) ..

Environmental Defense Fund v. EPA, 489 F.2d 1247

Si SEE, MA Rh 6as can peadccdacdscuesbncanes

Flint Ridge Dev’t Co. v. Scenic Rivers Ass'n, 426 U.S.

776, 96 S.Ct. 2430, 49 L.Ed.2d 205 (1976).......

Heartwood, Inc. v. United States Forest Service, 230

F.3d 947 (7th Cir. 2000)... 2... nc ccc ce ec cceens

National Broadcasting Co. v. United States, 319 U.S.

190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943) .........

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

kk aS eR eer

Simms v. NHTSA, 45 F.3d 999 (6th Cir. 1995) .....

Traynor v. Turnage, 485 U.S. 535, 108 S.Ct. 1372, 99

BRE 9). | error ee Teer re rere Tee

Wisconsin v. Weinberger, 745 F.2d 412 (7th Cir.

Se

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TABLE OF AUTHORITIES - Continued

Page

STATUTES AND RULEs: |

Administrative Procedure Act, 5 U.S.C. § 501, et

MIVITIT EET er ee 7

Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq...... ©

Bis Lome & .. » eerrereeereyr rr rr ree ee 1

a? US... & 251, Ob RRs «si sk énedecaweesns cake Ks idm ieew 4

QT TIBAL. & FOR) oon oc cs caves cuvneass teneeen steers 4

47 USC. § SO) «0 b.00ieses kes ch aweoeen ere 4

47 USL. & RODD) « «0c ova ncscnceseunesiwarnsauneaaee 4

FEDERAL REGULATIONS:

40 CPR § 1507.3 . 2... ccsccsnescuwees vas mees tens ceena 3

OTHER AUTHORITIES:

Biological Effects and Exposure Criteria for Radio-

frequency Electromagnetic Fields, NCRP Repcrt

No. O6 (20D). osc csiecsuk cya cerieedceeeeeeeeeeaes 6

IEEE Standard of Safety Levels with Respect to |

Human Exposure to Radio Frequency Electro-

magnetic Fields, 3 kHz to 300 GHz (1992) ......... 7

Notice of Inquiry, Gen. Docket No. 79-144, 72 FCC

20 MOD (ITA). a ska vdeo dariinnks ashe ee 5

1

1. FUNCTIONAL COMPLIANCE. Respondents take the

self-contradictory position that, while the Executive

Branch as a matter of policy would limit use of the

functional compliance doctrine to the EPA, this need not

be a matter for the court’s concern because “No federal

regulation or statute, or other source of law prohibits the

application of the functional compliance test to agencies

other than the EPA.” Respondents do, at least, acknowl-

edge that cases which have considered the matter “either

declined to apply the test to a particular agency or stated

in dictum that the test applied only to EPA.” Neverthe-

less, because the repeated statements of those courts

could arguably be considered not a part of the holding of

those cases, “There is thus no conflict.” Brief for the

Respondents in Opposition (hereafter, “Opposition”), at

17.

The very fact that respondents have made this argu-

ment — we like it as a policy but, gosh, we’ll ignore it here

— makes clear the need for this court to grant certiorari.

First, respondents have misstated the law. NEPA

compels all federal agencies to satisfy its requirements

absent clear and unavoidable conflict in statutory author-

ity. Flint Ridge Dev’t Co. v. Scenic Rivers Ass’n, 426 U.S.

776, 787-788, 96 S.Ct. 2430, 49 L.Ed.2d 205 (1976); 42

U.S.C. § 4332.

Second, a plain reading of the cases reveals that

when the courts have been persuaded to carve out an

exception to the unambiguously strict compliance manda-

ted by NEPA, this narrow exception is based on an

express statutory conflict which would otherwise necessi-

tate duplicative or conflicting environmental review.

How else are we to interpret statements such as those of

2

the courts in, for example, Portland Cement Ass'n v.

Ruckelshaus, 486 F.2d 375, 387 (D.C.Cir. 1973):

“We add, finally, a word of clarification: we

establish a narrow exemption from NEPA, for

EPA determinations under Section 111 of the

Clean Air Act. NEPA must be accorded full

vitality as to non-environmental agencies as

established by our outstanding precedents.”

Or, similarly, in Environmental Defense Fund v. EPA, 489

F.2d 1247, 1257 (D.C. Cir. 1973), discussed in our Petition

at 10-11.

Petitioner does not agree that it is dicta when a court

expressly defines the limits of its holding (i.e., the scope

of a narrow exception). Regardless, the Second Circuit's

opinion in this case is the first to apply functional compli-

ance to an agency other than the EPA and without any

express statutory conflict with NEPA. It creates a clear

conflict with other circuits, and, if followed, would vir-

tually gut the procedural requirements of NEPA. More-

over, that respondents can argue at all that the “policy”

limiting functional compliance to the EPA does not have

the force of law cries out for this court’s intervention. To

leave this dangerous precedent in place would be to

ignore the unambiguous statutory mandate from Con-

gress which requires agency compliance with NEPA to

the fullest extent possible.

Respondents further argue that NEPA compliance

was unnecessary in the rulemaking under review here

because “an agency’s promulgation of rules that them-

selves implement NEPA and determine when an EIS is

required, is not subject to the preparation of an EIS.”

Opposition 18. Petitioner concedes that promulgation of

purely procedural rules that implement NEPA may not

require environmental assessment, assuming all the CEQ

3

and NEPA requirements were followed, but that was not

the case here. The FCC was not simply promulgating

procedural rules implementing NEPA; rather, it promul-

gated national RF exposure limits, and failed to comply

with regulations requiring CEQ approval.

Respondents’ reliance on Heartwood, Inc. v. United

States Forest Service, 230 F.3d 947 (7th Cir. 2000), therefore,

is misplaced, and again shows the extent to which this

Court’s intervention is necessary. In Heartwood the court

affirmed Forest Service (“FS”) procedural regulations

determining what actions under its rulemaking jurisdic-

tion qualify for a categorical exclusion (“CE”) from addi-

tional NEPA review under CEQ regulations. Id. at 955.

Moreover, the FS was found to have complied with the

requirement of obtaining CEQ approval for the proposed

revisions to its procedural regulations regarding CE’s, as

required by 40 CFR § 1507.3. Id. at 954-955; see also

950-951, ns. 2, 4. In the instant case, not only are the

regulations at issue substantive rather than procedural,

the record is silent regarding any such CEQ approval for

the FCC.

As stated, however, the very fact of the government’s

assertion of Heartwood as controlling places into striking

relief the necessity for this court to settle the limits of the

functional compliance doctrine, lest this exception,

should the- opinion below stand, swallow the rule.

2. UNCONSTITUTIONAL DELEGATION. In opposition

to petitioner’s claim that the Telecommunications Act of

1996, Pub.L.No. 104-104, 110 Stat. 56, § 704(b) (hereafter,

“TCA”), constitutes an unlawful delegation of authority

by Congress, Petition 18-22, respondents assert, first, that

the claim was not decided below, and second, that

4

authority is to be found not in the TCA but in the Com-

munications Act of 1934, 47 U.S.C. §§ 151, et seq. (hereaf-

ter, “1934 Act”). Opposition at 19-22.

Regarding the first point, the issue was fully briefed

in the Court of Appeals. See Brief for Cellular Phone

Taskforce at 30-33 and Brief for Respondents at 44-45.

That it was not specifically discussed in the Court of

Appeals’ Opinion does not mean it was not decided, but

rather that it must have been included within the lower

court’s catch-all disposition: “We have considered peti-

tioners’ remaining constitutional arguments and find

them to be without merit.” Cellular Phone Taskforce v. FCC,

205 F.3d 82, 96-97 (2d Cir. 2000).

Regarding respondents’ reliance on the 1934 Act as

the source of the FCC’s authority, rather than the TCA,

the 1934 Act is similarly devoid of any intelligible princi-

ple to guide the FCC’s rulemaking involving national

health and safety standards. For example, respondents

cite 47 U.S.C. §§ 307(a) and 309(a) as giving broad author-

ity to “issue[ ] licenses to use the electromagnetic spec-

trum” with the public interest standard as the guiding

principle for licensing and the concerns related thereto.

Opposition 20. But respondents, elsewhere in their oppo-

sition, claim that the potential health effects of RF fields

were unknown in 1934, Opposition 24, n.13, and none of

the sections relied upon by respondents has been sub-

stantively amended since the 1930’s (except § 309(j),

added in 1993). Furthermore, the FCC’s claim of authority

stretching back to the 1930’s is belied by their own dis-

avowal of such authority much more recently than that:

“The Commission’s position is that it has nei-

ther the responsibility nor the authority to

/ 5

establish health and safety radiation standards.”

Notice of Inquiry, Gen. Docket No. 79-144, 72

FCC 2d 482 (1979), ¥ 20.

All of the sections of the 1934 Act relied on by

respondents, Opposition 20-21, have to do with engineer-

ing and promoting nationwide communications, not with

health matters. Moreover, respondents’ continued

reliance on half-century-old cases, the most recent of

which, National Broadcasting Co. v. United States, 319 U.S.

190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943), arose in the days

when radio was flourishing, television was in its infancy,

and cellular communications resided, if anywhere, in the

annals of science fiction, highlights the need for certiorari

to be granted in this case if otherwise the FCC will

continue such unchecked expansion of its authority

under the 1934 Act.

3. NEPA/APA CONSULTATION. The government con-

tinues to claim that the FCC’s initial consultation with

health-related agencies excused it from having to affirma-

tively seek their comment on the flood of new materials

regarding the non-thermal biological effects of RF radia-

tion on the reconsideration round. Opposition at 22-24.

This is tantamount to asserting that a snapshot rather

than a motion picture would adequately convey the expe-

rience of rafting through the Grand Canyon on the Colo-

rado River. It is also contrary to law.

The FCC first promulgated guidelines on RF expo-

sure caused by its licensees in 1985. The rulemaking at

issue in this case began in 1993 as the FCC’s attempt to

update those guidelines. Those guidelines needed to be

updated to respond to the rapid rate of change both in

the devices using RF and to other scientific developments

relating to RF exposure. Clearly, if this were a static field,

6

the guidelines would not have needed revision. Similarly,

if this were a static field, there would have been no need

for additional consultation with the health and safety

agencies during reconsideration, three years later.

Respondents, however, continue to assert that “the

FCC consulted extensively with EPA, FDA, OSHA and

other federal health and safety agencies”, Opposition

22-23, while ignoring the critical issue of the three year

lag time after the majority of the consultation occurred.

The failure to consult regarding the thousands of pages of

additional information and new studies received between

1993 and 1997 is like the snapshot from the Colorado - it

is simply insufficient to depict reality.

Similarly, the validity of respondents’ reliance on the

adequacy and timeliness of the ANSI and NCRP reviews

of the scientific literature, Opposition 22, is belied by the

record below. The NCRP guidelines state that “A

response by an organism to RFEM radiation may have a

thermal basis, an athermal basis, or a combined basis.”

Biological Effects and Exposure Criteria for Radiofre-

guency Electromagnetic Fields, NCRP Report No. 86

(1986), p. 276, Joint Appendix (below, “JA”) 304. And the

EPA, in their comments to the initial FCC proposals,

warned, “The thesis that the 1992 ANSI/IEEE recommen-

dations are protective of all mechanisms of interaction is

unwarrantea because the adverse effects level in the 1992

ANSI/IEEE standard is based on a thermal effect.” Com-

ments of EPA, Nov. 9, 1993, p. 3, JA 439. So, again, by

1996, the scientific scenery had so shifted, as exemplified

by the thousands of pages of new material submitted into

the record after 1993, that this reliance on pre-1993

reviews of literature borders on the ludicrous, and fails to

7

qualify as rational rulemaking as required by the Admin-

istrative Procedure Act, 5 U.S.C. § 551 et seq. The irra-

tionality of the rulemaking is compounded by the fact

that most of the research relied upon by ANSI pre-dated

December 1985, the cut-off date ANSI used for develop-

ing its 1992 standards, which the FCC later relied upon

for its 1996 rules. IEEE Standard of Safety Levels with

Respect to Human Exposure to Radio Frequency Electro-

magnetic Fields, 3 kHz to 300 GHz (1992), at 26, JA 356.

Respondents claim that petitioner does not challenge

the Second Circuit’s finding that “the FCC ‘could

reasonably expect [the health and safety] agencies to keep

abreast of scientific developments’ and ‘expect the agency

with primacy in evaluating environmental impacts to

monitor all relevant scientific input into the FCC’s recon-

sideration.’ ” Opposition at 23, n.12. Not so. If that were

so, there would have been no reason for petitioner to

present Question 2 in its Petition. If the evidence in the

record supported that the health and safety agencies had

actually evaluated the recent research in the record,

Question 2 would be moot. Petitioner does not dispute

that the FCC did consult with the expert agencies regard-

ing the content of its proposed rule. But no evidence in

the records suggests that the health and safety agencies

ever evaluated, or were even aware of, the content of the

public submissions into the FCC’s rulemaking docket,

either in the first instance or on reconsideration. Indeed,

the record reveals the opposite to be true. In the May 19,

1999 letter from the EPA’s senior scientist on RF radia-

tion, Norbert Hankin, to Arthur Firstenberg, Mr. Hankin

states that, to his knowledge, “the FCC has not asked EPA

to review and evaluate any of the materials in the FCC’s

8

docket ET-93-62, other than the April 1993 Notice of

Proposed Rulemaking. .. . ”!

Respondents’ reliance on Wisconsin v. Weinburger, 745

F.2d 412 (7th Cir. 1984), Opposition 23, is misplaced. The

FCC says the picture was not seriously different, but their

answer is based on information that was at least three

years old in a rapidly changing scientific environment.

Many of the studies submitted to the FCC called into

question the propriety of ignoring the potentially signifi-

cant non-thermal damage and the validity of the thresh-

old limits for thermal damage in biological systems. This

directly called into question the fundamental scientific

understanding underlying the ANSI and NCRP stan-

dards, and therefore presented a seriously different pic-

ture. Id. at 420. For respondents to say, therefore, that it

was reasonable to continue to rely on the “fundamental

scientific understanding underlying the ANSI and NCRP

standards” absent new scientific evidence that they were

invalid, Opposition at 23, bootstraps the question into the

conclusion. The FCC is saying that it does not have to

review the literature suggesting that those standards are

wrong, or send it to the knowledgeable agencies for

review, because no one has shown (except, of course, in

the very literature being ignored) that the standards are

no longer valid.

1 The letter is reproduced, with errors, in the appendix of

David Fichtenberg’s pro se Petition in No. 00-407, at 45.

Although two lines of text were omitted and there were other

typographical errors, the relevant substance of the letter as

reproduced there is adequate for present purposes. The letter

was submitted to the Court of Appeals in response to the Rule

28(j) submission of the FCC, cited in the Opposition Brief at

23-24, n.12.

9

The FCC’s failure, both in the first instance and on

reconsideration, to “rationally consider the relevant evi-

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

1209, 1217 (D.C. Cir. 1983), by failing to present the new

data for evaluation by the agencies with health and safety

expertise, constituted a blatant violation of the APA and

NEPA.

4. REHABILITATION ACT. Respondents contend that

the FCC rulemaking did not constitute discrimination

against electrically sensitive people under any “program

or activity” of the FCC, and therefore the improper han-

dling of Petitioner’s Rehabilitation Act (“RA”) complaint

and the FCC rules were not in violation of the RA. Oppo-

sition at 24-25; Rehabilitation Act of 1973, 29 U.S.C. § 701

et seq. This argument was adopted by the court below in

its opinion on rehearing. Cellular Phone Taskforce v. FCC,

217 F.3d. 72, 72-74 (2d Cir. 2000).?

The opinion below is in direct conflict with other

circuits which have ruled on the merits of discrimination

allegations arising from federal agency rulemaking, e.g.,

Simms v. NHTSA, 45 F.3d 999, 1009-1010 (6th Cir. 1995),

and other cases cited by amici the Disability Council of

the White Mountains, et al. in their brief at 9-10. To reach

the merits in each of those cases, the courts had to have

accepted that agency rulemaking constitutes a “program

or activity” under the Rehabilitation Act. Similarly, this

court, in Traynor v. Turnage, 485 U.S. 535, 541-545, 108

S.Ct. 1372, 99 L.Ed.2d 618 (1988), appears to take for

granted that federal agency rulemaking constitutes a

2 Petitioner erred in stating in its petition, at 1, that the

opinion on rehearing was unpublished.

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10

“program or activity” under the RA. Thus, there is a clear

conflict with the decisions below in this case.

Moreover, respondents continue their misplaced

reliance on Community Television of So. Cal. v. Gottfried, 459

U.S. 498, 500, 103 S.Ct. 885, 74 L.Ed.2d 705 (1983) and

California Ass'n of the Physically Handicapped, Inc. v. FCC,

840 F.2d 88, 92 (D.C. Cir. 1988). Opposition 25. The issue

in those cases was the application of the RA to discrimi-

nation by FCC licensees. Those cases did not involve

allegations of discrimination by the FCC.

Respectfully submitted,

Of Counsel: RicHarp I. Tarcow

J oo Counsel of Record

685 Snow Road Post Office Box 1143

Sebastopol, California Sebastopol, California

95472 95473

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

December, 2000