D.C. Circuit Remands Radiofrequency [Wireless] Radiation Case to FCC for ‘Reasoned Explanation’ of Order
Paul Kirby, TR Daily, August 13, 2021
Reprinted with permission from TR Daily – Current Issue- August 13, 2021
This article is one of several major U.S. news reports covering the recent court ruling in EHT’s historic winning lawsuit EHT et al. v. FCC whereby EHT and 13 petitioners filed against the US federal government for failure to consider the full body of scientific research indicating serious harm from wireless to humans and the environment. Sign up for EHT’s newsletter here to get our updates.
In a 2-1 ruling, the U.S. Court of Appeals for the District of Columbia Circuit today remanded to the FCC a case involving challenges to the agency’s RF standards rules, ordering the agency “to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radiofrequency radiation unrelated to cancer.”
The court said the FCC “must, in particular, (i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines, (ii) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and (iii) address the impacts of RF radiation on the environment.”
The majority opinion stressed, “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. As the dissenting opinion indicates, there may be good reasons why the various studies in the record, only some of which we have cited here, do not warrant changes to the Commission’s guidelines. But we cannot supply reasoning in the agency’s stead … and here the Commission has failed to provide any reasoning to which we may defer.”
The majority opinion in Environmental Health Trust et al. v. FCC (consolidated cases beginning at 20-1025) was written by Circuit Judge Robert L. Wilkins, who was joined by Circuit Judge Patricia A. Millett. Circuit Judge Karen LeCraft Henderson dissented in part, arguing against remanding the case to the FCC for further explanation of its action.
During an oral argument in January, Judges Millett and Wilkins appeared skeptical about whether the FCC had adequately gathered expert evidence before deciding in 2019 to maintain its existing RF exposure standards (TR Daily, Jan. 25).
In the 2019 FCC item being challenged, the agency resolved a notice of inquiry adopted in 2013 (TR Daily, March 29, 2013) and also adopted a second report and order, notice of proposed rulemaking, and memorandum opinion and order in ET dockets 03-137, 13-84, and 19-226 (TR Daily, Dec. 4, 2019). The proceeding marked the first review of the agency’s RF standards since they were adopted in 1996.
In resolving the NOI, the FCC said, “After reviewing the extensive record submitted in response to that inquiry, we find no appropriate basis for and thus decline to propose amendments to our existing limits at this time. We take to heart the findings of the Food & Drug Administration (FDA), an expert agency regarding the health impacts of consumer products, that ‘[t]he weight of scientific evidence has not linked cell phones with any health problems.’ Despite requests from some to increase and others to decrease the existing limits, we believe they reflect the best available information concerning safe levels of RF exposure for workers and members of the general public, including inputs from our sister federal agencies charged with regulating safety and health and from well-established international standards.”
One petition for review was filed in the D.C. Circuit on behalf of EHT, Consumers for Safe Cell Phones, and two individuals who say that RF emissions have harmed them (TR Daily, Feb. 5, 2020). The other petition for review was filed in the U.S. Court of Appeals for the Ninth Circuit (San Francisco) on behalf of Children’s Health Defense (CHD), physicians, and parents who say their children were harmed by wireless emissions (TR Daily, Feb. 4, 2020). The cases were consolidated in the D.C. Circuit.
The petitioners argued that the FCC ignored a huge amount of evidence that its standards are not adequately protecting the public from the negative health impact of RF emissions, that the agency violated the Administrative Procedures Act by failing to engage “in reasoned decision-making,” and that it violated the National Environmental Policy Act by failing to consider the environmental impact of its decision.
But the FCC said that it considered the record and reasonably decided that no change in the RF standards was warranted and that it complied with the APA.
The majority said in today’s opinion that under the “highly deferential standard of review” afforded the FCC, “we find the Commission’s order arbitrary and capricious in its failure to respond to record evidence that exposure to RF radiation at levels below the Commission’s current limits may cause negative health effects unrelated to cancer. (As we explain below, we find that the Commission offered an adequate explanation for its determination that exposure to RF radiation at levels below the Commission’s current limits does not cause cancer).
“That failure undermines the Commission’s conclusions regarding the adequacy of its testing procedures, particularly as they relate to children, and its conclusions regarding the implications of long-term exposure to RF radiation, exposure to RF pulsation or modulation, and the implications of technological developments that have occurred since 1996, all of which depend on the premise that exposure to RF radiation at levels below its current limits causes no negative health effects. Accordingly, we find those conclusions arbitrary and capricious as well. Finally, we find the Commission’s order arbitrary and capricious in its complete failure to respond to comments concerning environmental harm caused by RF radiation,” the majority added.
The majority noted that the FCC pointed to three FDA statements in response to arguments that radiation at levels below the agency’s limits causes negative health effects other than cancer, saying, “We do not agree that these statements provide a reasoned explanation for the Commission’s decision to terminate its notice of inquiry. Rather, we find them to be of the conclusory variety that we have previously rejected as insufficient to sustain an agency’s refusal to initiate a rulemaking.”
The FDA’s statements “do not explain why the FDA determined, despite the studies and comments that Petitioners cite, that exposure to RF radiation at levels below the Commission’s current limits does not cause harmful health effects,” the opinion said. “They instead represent a failure by the FDA to address the implication of Petitioners’ studies: The factual premise—the non-existence of non-thermal biological effects—underlying the current RF guidelines may no longer be accurate.”
“The Commission also argues that its order provided a reasoned explanation for its decision to terminate the notice of inquiry, despite Petitioners’ evidence, by observing that ‘no expert health agency expressed concern about the Commission’s RF exposure limits,’ and that ‘no evidence has moved our sister health and safety agencies to issue substantive policy recommendations for strengthening RF exposure regulation,’” the opinion said. “The silence of other expert agencies, however, does not constitute a reasoned explanation for the Commission’s decision to terminate its notice of inquiry for the same reason that the FDA’s conclusory statements do not constitute a reasoned explanation: silence does not indicate why the expert agencies determined, in light of evidence suggesting to the contrary, that exposure to RF radiation at levels below the Commission’s current limits does not cause negative health effects unrelated to cancer. Silence does not even indicate whether the expert agencies made any such determination, or whether they considered any of the evidence in the record.”
The majority also noted that “the Commission argues that the Commission itself addressed the major studies in the record in its order terminating the notice of inquiry. Specifically, the Commission points to its statement that ‘[t]he vast majority of filings were unscientific.’ … Elsewhere, however, the order acknowledges that ‘the record include[d] some research information’ and ‘filings that sought to present scientific evidence.’ Id. The order dismisses that research and evidence as ‘fail[ing] to make a persuasive case for revisiting our existing RF limits,’ id., but again, such a conclusory statement cannot substitute for the minimal reasoning required at this stage … .”
The opinion added that “while ‘[a]n agency is not obliged to respond to every comment, only those that can be thought to challenge a fundamental premise,’ … the studies in the record to which Petitioners point do challenge a fundamental premise of the Commission’s decision to terminate its notice of inquiry—namely, the premise that exposure to RF radiation at levels below the Commission’s current limits does not cause negative health effects. But the Commission said nothing at all in its order about any specific health effects unrelated to cancer.”
“The Commission’s failure to provide a reasoned explanation for its determination that exposure to RF radiation at levels below its current limits does not cause negative health effects unrelated to cancer renders the order arbitrary and capricious in three additional respects. First, it undermines the Commission’s explanation for retaining its procedures for determining whether cell phones and other portable electronic devices comply with its RF limits,” according to the majority.
“Second, the Commission equally failed to provide a reasoned explanation for brushing off record evidence addressing non-cancer-related health effects arising from the impact of RF radiation on children,” the opinion said. “Third, the Commission’s failure to provide a reasoned explanation for its determination that exposure to RF radiation at levels below its current limits does not cause negative health effects unrelated to cancer renders inadequate the Commission’s explanation for its failure to discuss the implications of long-term exposure to RF radiation, exposure to RF pulsation or modulation, or the implications of technological developments that have occurred since 1996, including the ubiquity of wireless devices and Wi-Fi, and the emergence of ‘5G’ technology.”
“In addition to the Commission’s inadequate response to the non-cancer-related effects of RF radiation on human health, the Commission also completely failed even to acknowledge, let alone respond to, comments concerning the impact of RF radiation on the environment,” the majority argued. “That utter lack of a response does not meet the Commission’s obligation to provide a reasoned explanation for terminating the notice of inquiry. The record contains substantive evidence of potential environmental harms. Most relevantly, the record included a letter from the Department of the Interior voicing concern about the impact of RF radiation from communication towers on migratory birds … .”
“The dissenting opinion portrays this case as about the Commission’s disregard of just five articles and one Department of Interior letter. Not so,” the majority opinion said, citing “substantial information and material from” entities such as the American Academy of Pediatrics, the Council of Europe, the cities of Boston and Philadelphia, medical associations, thousands of physicians and scientists, and hundreds of people who suffered or who had loved ones suffer from the alleged impact of RF radiation.
All three judges agreed that “[p]etitioners’ remaining challenges under the APA are unavailing. Petitioners first argue that the Commission failed to respond to record evidence that exposure to RF radiation at levels below the Commission’s current limits may cause cancer.”
The opinion found “that the Commission’s order adequately responds to the record evidence that exposure to RF radiation at levels below the Commission’s current limits may cause cancer. In contrast to its silence regarding non-cancerous effects, the order provides a reasoned response to the NTP [National Toxicology Program] and Ramazzini Institute studies. … And the order cites a response to both studies published by the International Commission on Non-Ionizing Radiation Protection that provides a detailed explanation of various inconsistencies and limitations in the studies and concludes that ‘consideration of their findings does not provide evidence that radiofrequency EMF is carcinogenic.’”
“Petitioners also argue that the Commission’s order impermissibly fails to respond to various ‘additional legal considerations,’” the court noted, adding that those were not properly before the court because the petitioners had failed to present the issues to the FCC.
“Petitioners also argue that NEPA required the Commission to issue an EA [environmental assessment] or EIS [environmental impact statement] regarding its decision to terminate its notice of inquiry. Petitioners are wrong,” the opinion said. “The Commission was not required to issue an EA or EIS because there was no ongoing federal action regarding its RF limits. The Commission already published an assessment of its existing RF limits that ‘”functionally”’ satisfied NEPA’s requirements ‘”in form and substance.”’”
In her partial dissent, Judge Henderson said, “’[A] court is not to substitute its judgment for that of the agency.’ … We thus must ‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.’ … I believe my colleagues’ limited remand contravenes these first principles of administrative law. Because I would deny the petitions in full, I respectfully dissent from Part II.A.i.–iv. and Part III of the majority opinion.
“It is important to emphasize how deferential our standard of review is here—where, first, an agency’s decision to terminate a notice of inquiry without initiating a rulemaking occurred after the agency opened the inquiry on its own and, second, the inquiry involves a highly technical subject matter at the frontier of science,” Judge Henderson continued. “And our precedent also makes plain that ‘[i]t is only in the rarest and most compelling of circumstances that this court has acted to overturn an agency judgment not to institute rulemaking.’ … For the reasons that follow, I believe the Commission’s order does not fit those rarest and most compelling circumstances.”
“We have held that research articles containing tentative conclusions do not provide a basis for disturbing an agency’s decision not to initiate rulemaking,” Judge Henderson said. “Nevertheless, the majority rejects reaching the same conclusion here regarding the petitioners’ assertion that radiofrequency (RF) radiation exposure below the Commission’s limits can cause negative health effects unrelated to cancer. To do so, it relies on five research articles in an over 10,500-page record. … A close inspection of the five research articles confirms that they also ‘are nothing if not tentative.’ … Given this record, I believe we should have arrived at the same conclusion we did in EMR Network [TR Daily, Dec. 7, 2004]—’nothing in th[e]se studies so strongly evidenc[es] risk as to call into question the Commission’s decision to maintain a stance of what appears to be watchful waiting.’”
“I reach the same conclusion regarding the majority’s remand of the petitioners’ environmental harm argument,” the judge said. “The majority relies on a 2014 letter from the U.S. Department of the Interior (Interior) to the U.S. Department of Commerce about, inter alia, the impact of communications towers on migratory birds. But the Interior letter itself concedes that ‘[t]o date, no independent, third-party field studies have been conducted in North America on impacts of tower electromagnetic radiation on migratory birds.’ … Moreover, the petitioners did not raise the Interior letter in the environmental harm section of their briefs.”
“More importantly, the majority’s limited remand runs afoul of our precedent on this precise subject matter,” Judge Henderson argued. “In EMR Network, the petitioner asked ‘the Commission to initiate an inquiry on the need to revise [its] regulations to address the non-thermal effects’ of RF radiation. … In denying the petition, we concluded ‘the [Commission]’s decision not to leap in, at a time when the [Environmental Protection Agency (EPA)] (and other agencies) saw no compelling case for action, appears to represent the sort of priority-setting in the use of agency resources that is least subject to second-guessing by courts.’ … This time around, the majority faults the Commission for the U.S. Food and Drug Administration’s (FDA) allegedly ‘conclusory statements’ in response to the Commission’s 2013 notice of inquiry.”
“Simply put, the Commission’s reliance on the FDA is reasonable ‘[i]n the face of conflicting evidence at the frontiers of science.’ … The majority takes issue with what it categorizes as ‘conclusory statements.’ … But the Supreme Court’s ‘State Farm [decision] does not require a word count; a short explanation can be a reasoned explanation.’ … Brevity is even more understandable if the agency whose rationale is challenged relies on the agency the Congress has charged with regulating the matter.”
An FCC spokesperson said that the agency was “reviewing the decision carefully.”
The petitioners and their allies and CTIA had praise for today’s decision.
“We are delighted that the court upheld the rule of law and found that the FCC must provide a reasoned record of review for the thousands of pages submitted by the Environmental Health Trust and many other expert authorities in this precedential case. No agency is above the law. The American people are well served,” said EHT President Devra Davis. “Where do we go from here? We need a Congressional hearing, an investigation of how our country ended up in this situation to ensure it never happens again. As we detail in our [May] letter to President Biden, the priority for infrastructure should be for wired rather than wireless internet connections. The US needs a federal action plan on the issue of wireless radiation. It is imperative that our federal agencies immediately act to protect human health and environment with biologically based safety limits that protect our children and the environment.”
“This is a win for our children, our future and our environment. The court’s decision should be a wake up call worldwide,” said Theodora Scarato, executive director of EHT. “There was no premarket safety testing for cell phones or wireless networks before they came on the market decades ago. As the court points out in the ruling, silence from federal health and environmental agencies does ‘not constitute a reasoned explanation for the Commission’s decision.’ This ruling highlights how there has been no scientific review of the full body of scientific research to ensure people and the environment are protected. No federal agency has reviewed science indicating impacts to the brain, reproduction, trees, or wildlife—not the Food and Drug Administration, not the Centers for Disease Control, not the National Cancer Institute not the Environmental Protection Agency.”
“The Court granted the petitions for review because, contrary to the requirements of the Administrative Procedure Act, the Commission had failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation,” said Edward Myers, an attorney who represented EHT in the case. “The Court found, among other things, that the FCC had improperly relied on conclusory statements from a sister agency, the Food and Drug Administration, even though there was no indication that the FDA had looked at the evidence of significant harm from radiofrequency radiation.”
“The Court’s decision exposes the FCC and the FDA as captive agencies that have abandoned their duty to protect public health in favor of a single minded crusade to increase Telecom industry profits,” said CHD founder and Chairman Robert F. Kennedy Jr.
Dafna Tachover, director of CHD’s 5G and Wireless Harms Project, said, “The FCC will finally have to recognize the immense suffering by the millions of people who have already been harmed by the FCC’s and the FDA’s unprecedented failure to protect public health. Finally the truth is out. I am hopeful that following this decision, the FCC will do the right thing and halt any further deployment of 5G.”
Joel Moskowitz, director of the Center for Family and Community Health in the University of California at Berkeley’s School of Public Health and creator of the saferemr.com website, said, “Today the dam of denial has begun to crack. A Federal circuit court ruled against the Federal Communications Commission (FCC) in favor of wireless safety advocates, This ruling represents a victory in the decades-long fight to get our government to adopt wireless radiation exposure limits that protect our health and the environment. … I hope this ruling serves as a wake-up call to the Congress and the Administration.”
But Mr. Moskowitz also criticized the court for ruling that the FCC had adequately explained its decision that exposure to RF radiation at levels below the agency’s current limits doesn’t cause cancer. “Unfortunately, contrary to the claim in the Court’s ruling, ‘we take no position in the scientific debate regarding the health and environmental effects of RF radiation,’ the Court not only took a position, they took the wrong position because there is considerable evidence of increased cancer risk from long-term exposure to low-intensity cell phone radiation,” Mr. Moskowitz said.
In a statement, CTIA said, “Today’s appeals court decision expressly upholds the FCC’s determination that mobile phones and networks do not cause cancer. With respect to other claims, the opinion ‘take[s] no position,’ and simply directs the FCC to more fully explain its conclusions. The consensus of the international scientific community is that radiofrequency energy from wireless devices and networks, including 5G, has not been shown to cause health problems. The evidence includes thousands of peer-reviewed studies conducted over decades and includes input from expert organizations such as the FDA, World Health Organization and American Cancer Society. The court’s opinion does not dispute these conclusions.”
Paul Kirby, TR Daily, August 13, 2021
