ELR Citation: ELR 20052
No(s). 06-1165 (D.C. Cir. Feb 19, 2008)

The D.C. Circuit vacated a lower court order denying in part and dismissing in part a petition against the Federal Communications Commission (FCC) seeking to reduce collisions of migratory birds with communications towers in the Gulf Coast region. The FCC's National Environmental Policy Act (NEPA)-implementing regulations categorically exclude communications towers from environmental review; however, interested parties may request a NEPA analysis of such actions. Here, the FCC determined an environmental imact statement (EIS) was unnecessary due to the "lack of specific evidence . . . concerning the impact of towers on the human environment” and the “the lack of consensus among scientists regarding the impact of communications towers on migratory birds." These reasons cannot sustain the FCC's refusal to prepare an EIS without at least first requiring the preparation of an environmental assessment (EA). An EA is required when an action “may” have a significant environmental effect. Here, the FCC's demand for definitive evidence of significant effects plainly contravenes the “may” standard. Similarly, the FCC's suggestion that scientific consensus is a precondition to NEPA action is inconsistent with the statute. The FCC also failed to provide a reasoned explanation on its decision not to consult with the U.S. Fish and Wildlife Service under the Endangered Species Act, and it failed to provide meaningful notice of pending tower applications.