January 24, 2023

Federal communication regulators are facing renewed legal and other challenges over their alleged noncompliance with the National Environmental Policy Act (NEPA) , as officials work to approve plans for a massive ramp up in private satellite and other telecom infrastructure while also reviewing their broad use of categorical exclusions (CE) under the bedrock environmental law.

Last month, a non-profit astronomy group sued the Federal Communication Commission (FCC) over its approval of a plan by Space Explorations LLC (SpaceX) to launch thousands of low-orbit satellites without conducting a NEPA review, sending the commission back to court on the issue.

The International Dark Sky Association (IDA) filed a Dec. 29 lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit challenging FCC’s Dec. 1 order allowing SpaceX “to construct, deploy and operate a constellation of 29,988 non-geostationary orbit satellites” intended to provide broadband internet service.

The order specifically “denied IDA’s petition . . . which challenged the Commission’s compliance with [NEPA] and the agency’s implementing regulation.”

At the same time, a former top FCC official who now works with environmentalists is publicly detailing a series of charges over how the commission fails to comply with NEPA.

Erica Rosen, who served as assistant chief of the competition and infrastructure policy division in FCC’s Wireless Telecommunications Bureau, where she worked on NEPA issues for seven years, charged in a peer-reviewed paper last month that “the FCC fails to fulfill its mandatory duties under [NEPA] in multiple and significant ways.”

“The agency is supposed to follow legal requirements to assess such environmental impacts and, in doing so, to consider the concerns of communities and citizens. It does neither,” she wrote in the Dec. 12 article “Environmental Procedures at the FCC: A Case Study in Corporate Capture,” published in the journal Environment: Science and Policy for Sustainable Development.

Rosen writes, “For most deployments it authorizes, the FCC rarely completes any environmental review or makes NEPA documents available to the public; instead, with little FCC oversight or enforcement, industry is delegated the task of determining how much environmental review is appropriate.”

The commission also “treats environmental laws as obstacles to be circumvented or ignored, first by promulgating rules that fall short of what NEPA requires and then by failing to properly implement and enforce its own substandard rules,” she says.

And Rosen warns this “chronic failure has cumulative, incalculable, and largely unknown environmental impacts.”

FCC did not respond to a request for comment.

Such allegations highlight growing complaints over the FCC’s failure to assess the environmental effects of its decisions as NEPA generally requires.

Environmentalists have long raised concerns that the FCC has adopted an extremely broad CEs, with only a few exceptions, for almost all of its activities, allowing the commission to bypass many review mandates.

Underscoring these concerns, the Government Accountability Office (GAO) last year recommended that the commission reconsider its use of CEs. While the FCC agreed to the recommendation, it said it would do so only after the White House Council on Environmental Quality (CEQ) updates its own NEPA implementing rules, with a proposal expected before the end of March.

New Lawsuit

One month after it pledged a CE review to GAO, the FCC approved SpaceX’s plan to launch thousands of low-earth satellites without conducting a NEPA review, prompting the lawsuit.

The suit says the approval will harm IDA’s members including by diminishing their enjoyment of the dark sky, impairing astronomy and the natural nighttime environment, “as well as broader harms and risks to the environment including, as an example, the risks to migrating species that use stars for navigation.”

IDA says in the filing that the FCC order is unlawful under the Administrative Procedure Act and violates NEPA, and the association asks the court to “hold unlawful, vacate and set aside the Order.”

The FCC order includes responses to comments, filed jointly in September by IDA and the Natural Resources Defense Council (NRDC), calling for preparation of a full environmental impact statement.

The response cites the FCC’s NEPA implementing rules which “provide that, except for a specifically enumerated list of conditions that expressly require the preparation of an [environmental assessment], other Commission actions ‘are deemed individually and cumulatively to have no significant effect on the quality of the human environment and are categorically excluded.” It is the applicant’s duty to determine if a proposal requires an EA, the response says, adding that because “our rules largely focus on environmental effects at the earth’s surface, space stations generally have not triggered these categories and therefore have been categorically excluded from review.”

The groups in the comments also told the FCC it “should not rely” on the recent D.C. Circuit decision to justify the use of a CE for NEPA when FCC approved another set of SpaceX satellites, because the court dismissed that case after finding the challenger, SpaceX competitor Viasat, lacked standing to bring the challenge. NRDC and IDA clearly do have standing, they wrote.

Only IDA pursued the legal challenge, with executive director Ruskin Hartley telling Inside EPA that it is “unprecedented for IDA to resort to the court system to resolve disputes. But in this case, we felt compelled to act. With plans to deploy and maintain dozens of satellite constellations, with upwards of one hundred thousand satellites orbiting at any one time, it is critical that federal agencies responsible for making decisions on the future of the night sky — an essential element of the human environment — follow existing laws.”

He adds that a new approach is also needed. “As we rush to industrialize the use of low earth orbit, we need a new regulatory framework to ensure the just, equitable and sustainable use of space for all.

Rosen, the former FCC official, tells Inside EPA that while NEPA allows agencies to create categories of excluded actions, the FCC established its implementing rules to “categorically exclude all actions the agency takes except for those that meet a limited set of itemized extraordinary circumstances. In other instances, the FCC deems its actions categorically excluded.”

She notes that, “Unlike many agencies, FCC lacks a NEPA coordinating office and most bureaus within the agency have no NEPA expertise or even awareness of the obligations the statute confers on the agency.”

Rosen says she left the FCC in July 2021 and that she witnessed the commission simply “doing what the carriers want,” saying there is a “revolving door” between the FCC and the industries it regulates.

She adds that satellite launching is housed in the FCC’s international bureau, which “has no NEPA expertise at all” and where officials “didn’t want to hear that satellites can interfere with bird migration” and have other environmental effects.

Since she left the FCC, she worked with NRDC, which previously pursued some FCC NEPA issues, and with the Environmental Health Trust, which won the lawsuit two years ago forcing the FCC to update its 1996 radiofrequency transmission standards, though Rosen says the commission has yet to act on the ruling. — Dawn Reeves (dreeves@iwpnews.com)

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