On August 13, 2021 the United States Court of Appeals for the District of Columbia Circuit in Environmental Health Trust, et al. v. Federal Communications Commission, ordered the Federal Communications Commission (“FCC”) to provide a reasoned explanation for its determination that its current guidelines for exposure to radiofrequency radiation adequately protect against potentially harmful effects unrelated to cancer. The Court held that the FCC had arbitrarily and capriciously determined that its current guidelines adequately protect against the harmful effects of RF radiation unrelated to cancer.
The decision arose from the plaintiffs’ challenge to the FCC’s notice of inquiry as to whether it should review its 1996 guidelines for RF exposure. The FCC had declined to undertake any changes to the 1996 order. Plaintiffs argued that the FCC’s order was arbitrary and capricious because (1) it failed to acknowledge evidence of negative health effects from RF radiation at levels below those established in 1996; (2) failed to respond to comments concerning environmental harm; (3) failed to examine the long-term effects of exposure to RF radiation and RF pulsation and modulation as well as the ubiquity of wireless devices, and; (4) failed to explain the FCC’s refusal to modify procedures to determine whether cell phones comply with RF limits. Applying the standard for review under the Administrative Procedures Act, the court found the FCC’s order to be arbitrary and capricious for failing to adequately review whether RF exposure at levels below the current limits causes health effects other than cancer. The Court concluded, however, that the FCC had adequately examined RF exposure as it relates to cancer. The court held that the FCC failed to offer an adequate explanation as to why it rejected studies which reached the conclusion that adverse health impacts could result from exposure at levels below current guidelines.
The court made clear that it did not reach the conclusion that RF emissions caused any adverse health effects. [“To be clear, we take no position in the scientific debate regarding the health and environmental effects of RF radiation – we merely conclude that the Commission’s cursory analysis of material record evidence was insufficient as a matter of law.”] The court then remanded the matter to the FCC to (1) provide a reasoned explanation for its decision to retain current testing procedures; (2) address the impacts of RF radiation on children and implications of long-term exposure; and (3) address the impact of RF radiation on the environment.
While this is going to require the FCC to conduct a further analysis and provide a more fulsome explanation for its conclusions, it is unclear what the final impact of the decision will be. However, it certainly provides an opening to argue that installation of such devices in particularly sensitive areas should be postponed while the issue is further studied by the FCC.
A copy of the Court’s decision is attached: Environmental Health Trust V Federal Communications Commission
For further information, contact attorneys Joseph E. Macy or Donna A. Napolitano.