ELR Citation: 49 ELR 20136
No(s). 18-1129 (D.C. Cir. Aug 9, 2019)

The D.C. Circuit granted in part petitions to vacate a portion of a Federal Communications Commission order that exempted most small cell construction from review under the National Historic Preservation Act (NHPA) and NEPA. Native American tribes and an environmental group argued that eliminating historic-preservation and environmental review of small cell construction was arbitrary and capricious because the Commission failed to justify its determination that it was not in the public interest to require review of small cell deployments. The court agreed, finding that the Commission failed to justify its confidence that small cell deployments posed little to no cognizable religious, cultural, or environmental risk, especially given the number of deployments being proposed and that the order will primarily affect small cells requiring new construction. Petitioners also argued the order was an unjustified policy reversal and contrary to the NHPA and NEPA, but the court did not reach these objections. It therefore granted in part the petitions to vacate the order's removal of small cells from its limited approval authority and remanded to the Commission, but denied the petitions on the remaining grounds.