American Bird Conservancy v. FCC: D.C. Circuit orders reconsideration of cell phone tower rules to address bird collisions
American Bird Conservancy v. FCC, No. 06-1165 (Feb. 19, 2008)
SUMMARY: "The American Bird Conservancy and Forest Conservation Council petition for review of an order by the Commission denying in part and dismissing in part their petition seeking protection of migratory birds from collisions with communications towers in the Gulf Coast region. In Re Petition by Forest Conservation Council, American Bird Conservancy and Friends of the Earth for National Environmental Policy Act Compliance (“Order”), 21 F.C.C.R. 4462 (2006). Their petition claimed that Commission rules and procedures for approving new towers failed to comport with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. § 701 et seq. We vacate the Order because the Commission failed to apply the proper NEPA standard, to provide a reasoned explanation on consultation under the ESA, and to provide meaningful notice of pending tower applications."
EXCERPTS OF OPINION: "Concerned about the effect of 'tower kill' on migratory birds in the Gulf Coast region of the United States, Petitioners, on August 26, 2002, formally requested that the Commission, among other things, (i) prepare an environmental impact statement (“EIS”) under NEPA analyzing the effects of all past, present, and reasonably foreseeable tower registrations on migratory birds in the Gulf Coast region; (ii) initiate formal consultation with the United States Fish and Wildlife Service (“FWS”) pursuant to the ESA regarding the Gulf Coast towers’ impact on various bird species; and (iii) take steps in accordance with the MBTA to reduce bird mortality at Gulf Coast tower sites... In April 2005, seeking to compel the Commission to act on the Gulf Coast petition, Petitioners filed a petition for a writ of mandamus in this court. Five days after oral argument, the Commission issued the Order denying in part, dismissing in part, and deferring in part the Gulf Coast petition. 21 F.C.C.R. 4,462. In dismissing the Gulf Coast petition, the Commission stated that it would address aspects of the migratory bird issue as part of a separate docket examining the issue on a nationwide basis..."
"Accordingly, except as regards deferral of the MBTA issue, we vacate the Order and remand the case to the Commission to comply with NEPA and ESA. The results of the (ongoing rulemaking) may inform the Commission’s decision on remand, but the nationwide proceeding neither incorporates nor supplants the Gulf Coast petition. The Commission has amassed a wealth of information during the past five years, including reports from other federal agencies such as the FWS, a report from its own consultant in 2004, as well as a second round of comments from interested persons. Guided by this opinion, the Commission should be able to proceed with dispatch on remand to resolve the Gulf Coast petition, whether separately or as part of the nationwide proceeding."
Photos of birds collected from collision site, from www.wisconsinbirds.org (with numerous topical links)
COMMENTARY: Although the D.C. Circuit held that the FCC decision complied with the MBTA, and on that point, reasonably deferred the decision to a nationwide analysis, the Court held that the FCC violated NEPA because the FCC had erroneously refused to undertake an Environmental Impact Statement, or, at a minimum, and Environmental Assessment. Similarly, the D.C. Circuit ordered the FCC to undertake the necessary consultation with FWS to comply with the ESA. Fundamentally, the ruling has the effect of ordering the FCC to further consider the effects of cell towers on bird mortality -- something that the administrative record showed was already well underway at the FCC. To see the full opinion,click here, otherwise...
ADDITIONAL ANALYSIS FROM THE OPINION: "Section 7 of the ESA requires federal agencies to ensure that any “action” they authorize, fund, or carry out is not likely to “jeopardize the continued existence of any endangered  or threatened species,” or result in the destruction or adverse modification of critical habitats. 16 U.S.C. § 1536(a)(2)... Petitioners requested that the Commission formally consult with the FWS regarding the cumulative effects of towers on endangered and threatened species... The Commission declined to consult with the FWS, stating that there is “no evidence of any synergies” among towers that “would cause them cumulatively to have significant environmental impacts that they do not have individually.” Order, 21 F.C.C.R. at 4,467 ¶ 14. The Commission’s reliance on a lack of “synergies” was not further explained in the Order. This explanation was inadequate. The Commission has not described what kind of showing in the ESA context could demonstrate sufficient environmental effects to justify the “programmatic consultation” that Petitioners seek. Short of Petitioners conducting a programmatic EIS themselves, it is unclear how Petitioners could produce sufficient evidence to meet this standard."
COMMENTARY: In a very practical dissent, Judge Kavanaugh argued that the D.C. Circuit should not have reached the merits, and instead, should have dismissed the cases as unripe: "the FCC, in a separate rulemaking proceeding, is re-examining these environmental issues and considering the effects of communications towers on birds nationwide, including in the Gulf Coast region. The Commission has gathered considerable factual information and input from interested parties – including from the petitioners in this case – and the FCC’s counsel represented to the Court that the Commission expects to act soon. Even if the Gulf Coast order in isolation is technically final, our ripeness precedents suggest that, at least in these unusual circumstances, we should allow the ongoing administrative process to run its course before we intervene."
- AP story, " FCC must study bird-tower collisions" from Yahoo!
- "FCC is scolded over towers' effect on birds" from theSt. Pete Times.
- FCC pages and links on"Tower and Antenna Siting Issues," and Statementby FCC Commissioner Michael J. Copps in response to D.C. Circuit ruling
- FWS publication, "Clear the Way for Birds" discussing collisions, available online.
- Article from Forest Service on mitigating for bird strikes.
- To see the ongoing rulemaking documents, consult In re Effects of Communications Towers on Migratory Birds, Notice of Proposed Rulemaking (“NPRM”), 21 F.C.C.R. 13,241 (2006).