Erica Rosenberg, former NEPA attorney at the FCC
We’re delighted that Erica Rosenberg, former NEPA attorney at the FCC, joined us. Here’s a quick summary of what Erica covered.
Under NEPA, it’s every federal agency’s mandate to review and disclose environmental
effects of major federal actions. But because it is procedural, it cannot stop an agency’s actions. NEPA compliance must be in accordance with the rules set by the Council of Environmental Quality (to which, by the way, we already made a submission). Environmental impacts are viewed individually and cumulatively.
For NEPA review, the FCC engages in two major federal actions (MFA): licensing spectrum and registering towers. FCC makes funding decisions and subsidizes for the buildout by NTIA and rural utility services.
FCC has determined that everything under its jurisdiction does not require environmental review and is categorically excluded with a few exceptions: NHPA, action is located in a flood plain, deforestation, water diversion or 450 feet above ground level (to protect birds, because FCC was sued by the American Bird Conservancy). Then, an Environmental Assessment (EA) is done. The FCC has never done an Environmental Impact Statement (EIS). The FCC does not have a NEPA office.
FCC in 2018 determined that small cell facilities do not require environmental review because they
are not an MFA. In 2019, the Court disagreed and FCC must conduct NEPA review.
FCC has delegated to applicants (e.g. ATT, Verizon) to go through a checklist to justify why small cells should be categorically excluded. However, there is no paper trail. The FCC does not require that any such paperwork be submitted to the FCC (with some exceptions). There is no record of anyone doing due diligence, therefore, there is nothing for the public to refute. No notice to the public of categorical exclusions.
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