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 must be considered both individually and cumulatively.
The FCC considers two of its actions to be Major Federal Actions (MFA) that trigger NEPA review: licensing spectrum and registering towers. Yet the FCC makes funding decisions to subsidize buildouts, which should
also be considered MFAs. Other agencies, e.g., NTIA and RUS (rural utility services) that also fund buildouts have much more comprehensive NEPA procedures.
The FCC has
categorically excluded all its actions but for those that touch on a limited set of circumstances, like those that affect historic resources or endangered species, or involve significant change in surface features (which should cover deforestation but is generally interpreted as just needing a wetlands permit), those towers over 450 feet high (to protect birds, pursuant to a suit by American Bird Conservancy), or those that exceed RF limits. Then those
actions trigger an Environmental Assessment (EA). The FCC has never done an Environmental Impact Statement (EIS). The FCC does not have a NEPA office to coordinate NEPA activities.
FCC in 2018
determined that small cell facilities do not require environmental review because their licensing is not an MFA. In 2019, the DC Circuit Court found FCC's action arbitrary and capricious; hence, the FCC must conduct NEPA review.
FCC has delegated to applicants (e.g. ATT, Verizon) the initial NEPA review of a facility (including a small cell) to determine if an EA is required or if a categorical exclusion is supported by reviewing a checklist. 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. There is no notice to the public of categorical exclusions.
Erica has graciously agreed to share her email in case you have additional questions to ask her: Erica Rosenberg
<erosenb1@asu.edu>.