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Court Vacates FCC NEPA, NHPA R&O; Congress Has New Idea

August 20, 2019

The U.S. Court of Appeals for the District of Columbia Circuit has vacated the FCC’s Report and Order (R&O) that excluded small cells from review under the National Historic Preservation Act (NHPA) and National Environmental Policy Act (NEPA). The R&O, adopted in March 2018, was appealed by several tribal organizations. The court called the small cell deregulation “arbitrary and capricious.” The court remanded the matter back to the FCC.

“We grant in part the petitions for review because the Order does not justify the Commission’s determination that it was not in the public interest to require review of small cell deployments,” the court wrote in its decision. “In particular, the Commission failed to justify its confidence that small cell deployments pose little to no cognizable religious, cultural, or environmental risk, particularly given the vast number of proposed deployments and the reality that the Order will principally affect small cells that require new construction. The Commission accordingly did not … adequately address possible harms of deregulation and benefits of environmental and historic-preservation review.

The court upheld the FCC’s reduction of the tribes’ right to review proposed macrocell tower construction and other wireless facilities that remain subject to cultural and environmental review.

“The Court of Appeals let stand the FCC changes regarding larger wireless facilities, which involved interaction with, deadlines for response from, and potential payment of fees for services to Tribes, according to Keller and Heckman’s Mike Fitch.

Congress Moves to Facilitated Rural Development

In a related matter, Sen. Marsha Blackburn (R-Tenn.), has introduced legislation that would remove the Endangered Species Act (ESA), NHPA, and NEPA requirements from federally funded projects outside of  metropolitan statistical areas.

The bill, known as the Paving the Way for Rural Communities Act of 2019 (S.2430), removes certain regulations to increase rural communities’ access to “economic opportunities and timely and efficient infrastructure projects.”

“Rural communities in counties outside Metropolitan Statistical Areas are among the most in need of federal assistance for economic development,” according to an abstract of the bill.  “Federal laws, such as NEPA, NHPA, and the ESA, add enormous cost and complexity to local communities trying to work with federal departments and agencies on highway construction or economic development projects. These laws sometimes hinder private entities from investing in rural communities.”

 

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