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Keywords

environmental lawregulationtreatyendangered species act
treatyendangered species act

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American Bird Conservancy, Inc. v. F.C.C., 516 F.3d 1027, 65 ERC 2025, 380 U.S.App.D.C. 102, 44 Communications Reg. (P&F) 304

Facts

The American Bird Conservancy and Forest Conservation Council petitioned the FCC to prepare an environmental impact statement analyzing the effects of communications towers on migratory birds in the Gulf Coast region. They also requested formal consultation with the Fish and Wildlife Service regarding the impact of these towers on various bird species and sought measures to reduce bird mortality. The FCC deferred consideration of the Migratory Bird Treaty Act issue and dismissed the request for a programmatic environmental impact statement, stating it would address the migratory bird issue in a separate nationwide proceeding.

Concerned about the effect of “tower kill” on migratory birds in the Gulf Coast region of the United States, Petitioners, on August 26, 2002, formally requested that the Commission, among other things, (i) prepare an environmental impact statement (“EIS”) under NEPA analyzing the effects of all past, present, and reasonably foreseeable tower registrations on migratory birds in the Gulf Coast region.

Issue

Did the FCC adequately comply with the National Environmental Policy Act, the Endangered Species Act, and the Migratory Bird Treaty Act in its order regarding communications towers in the Gulf Coast region?

Did the FCC adequately comply with the National Environmental Policy Act, the Endangered Species Act, and the Migratory Bird Treaty Act in its order regarding communications towers in the Gulf Coast region?

Rule

The court applied the standards set forth in NEPA, which requires federal agencies to prepare an environmental impact statement for major federal actions significantly affecting the quality of the human environment, and the ESA, which mandates consultation with the Fish and Wildlife Service when actions may affect endangered or threatened species.

NEPA does not impose substantive environmental mandates, but it does require federal agencies to establish procedures to account for the environmental effects of certain proposed actions.

Analysis

The court found that the FCC's reasons for dismissing the request for a programmatic environmental impact statement were insufficient under NEPA, as they failed to follow their own regulations requiring an environmental assessment when there may be significant environmental impacts. Additionally, the FCC's rationale for not consulting with the Fish and Wildlife Service was inadequate, as it did not sufficiently explain why the cumulative effects of the towers were not significant.

The reasons stated in the Order cannot, in light of the petition under review, sustain the Commission's refusal to prepare an EIS without at least first requiring the preparation of an EA.

Conclusion

The court vacated the FCC's order in part and remanded the case for the Commission to comply with NEPA and ESA requirements, specifically addressing the need for a programmatic environmental impact statement and proper public notice of tower applications.

We vacate the NEPA part of the Order.

Who won?

The environmental advocates prevailed in part, as the court found that the FCC had not adequately addressed the environmental concerns raised in their petition and failed to comply with federal environmental laws.

Petitioners contend that the MBTA, NEPA, and ESA require changes to the Commission's rules and procedures regarding communications towers in the Gulf Coast region.

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