# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 27, 2004 Decided December 7, 2004

No. 03-1336

EMR N ETWORK

, P ETITIONER

v.

F EDERAL C OMMUNICATIONS C OMMISSION AND

U NITED S TATES OF A MERICA

, R ESPONDENTS

On Petition for Review of an Order of the

Federal Communications Commission

Whitney North Seymour, Jr. ar gued the cause for

petitioner. With him on the brief was James R. Hobson

.

Nandan M. Joshi

, Co unsel, Federal Communications

Commission, argued the cause fo r respondents. With him on

the brief were R. Hewitt Pate

, Assistant Attorney General,

U.S . Department of Justice, C atherine G. O'Sullivan and

Andrea Limmer , Attorneys, J ohn A. Rogovin

, General

Counsel, Federal Communications Commission, Daniel M.

Armstrong

, Associate

General Counsel, and J oel Marcus

, Counsel.

Before: E

DWARDS and G

ARLAND

, Circuit Judg es, and

W ILLIAMS

, Senior Circuit Judge

.2

Opinion for the Court filed by Senior Circ uit Judge

W ILLIAMS

.

W ILLIAMS

, Senior Circuit Judge : A variety of

facilities and products subject to Federal Communications

Commission regulation, including towers and other facilities

for radio, TV, and cell phone communications, and cell

phones themselves, transmit r adio signals—and with them

rad iofrequency (“RF”) radiation. At certain levels RF

radiation may have adverse “thermal” health effects, caused

by heating human tissu e. The Commission has issued

regulatory g

uidelines based on its assessment of those effects.

Non-thermal effects are also of potential concern, but

in its last review

of its RF radiation guidelines the

Commission

declined to tighten its restrictions on that

acc ount. See G uidelines for Evaluating the Environmental

Effects of Radiofrequency Radiation , 12 FCC Rcd 13494,

1 3505, ¶ 31 (1997). Its decision, resting on the scientific

uncertainty abou

t such effects and the costs of imposing

restrictions without a cl

earer showing of effects, was upheld

by the Second Circuit as within the Commission’s discretion.

See Cellular Phone Taskforce v. FCC, 205 F.3d 82, 90-92 (2d

Cir. 2000).

The year after th

e Second Circuit decision, EMR

Network filed

a petition asking the Commission to initiate an

inquiry on the need to revise the regulations to address nontherm al effects. I t relied principally on a letter from members

of the Radio frequency Interagency Work Group, which is

made up of s taff members from various federal agencies,

including the FCC, and which studies the effects of RF

radiation. Joint Appendix (“J.A.”) 23. The letter, which

didn’t represent the official policy or position of member

agencies, laid out a number of issues that the staff members3

believed “need to be addressed to provide a strong and

credible rationale to support RF exposure guidel ines.” J.A.

22. The letter expressly declined to assign priorities to the

issues; and in no way did it sound the tocsin for new

re gulations. After the Office of Engineering & Technology

rejected EMR’s initi

al petition, but before the Commission

ruled on the issue, EMR submitted seve ral academic studies

discussing potential health e ffects from exposure to RF

radiation at levels lower than are cu rrently permissible

without additional environmental analysis. See 47 C.F.R.

§§ 1.1306, 1.1307. The Commission affirmed the dismissal of

EMR’s petition, concluding that there was “no compelling

evidence” t

hat a rulemaking was warranted. E MR Network

Petition for Inquiry To Consider Amendment of Parts 1 and 2

Regarding Environmenta l Effects of Radiofrequency

Radiation , 18 FCC Rcd 16822, 16827, ¶ 12 (2003).

EMR now petitions for review of the Commiss ion’s

order, arguing principall

y that the Commission has violated its

du ty under § 102 of the National Environmental Policy Act

(“NEPA”), 42 U.S.C. § 4332, to ensure that agencies consider

the environmental effects of their decisions. We affirm the

Commission’s order.

* * *

Section 10 2(2)(C) of NEPA requires a federal agency

to prepare an Environmental Impact Statement (“ EIS”) as part

of any “proposals for legislation and other major Federal

actions significantly affecting the quality of the human

environment.”

42 U.S.C. § 4332(2)(C). In appropriate cases

an agency can instead prepare an E nvironmental Assessment,

followed by a Finding of No Significant Impact. See 40

C.F.R. §§ 1501.4(a)-(e); see also Dep ’t of Transportation v.

P ublic Citizen

, 124 S. Ct. 2204, 2209-10 (2004); Sierra Club4

v. U.S. Dep’t of Transportation

, 753 F.2d 120, 126 (D.C. Cir.

1985). A lth

ough the FCC had not prepared a formal EIS in

making its latest revisions to its RF radiatio n rules, C ellular

Phone Taskforce held that it had “functionally” s atisfied

NEPA’s requ

i rements “in form and substance.” 205 F.3d at

94-95.

EMR

accordingly focuses on agencies’ NEPA duties

when new evidence turns up after completion of an EIS (or

equivalent), citing Marsh v. Oreg on Natural Resources

Council

, 490 U.S. 360 (1989). M ar sh considered a claim that

the Corps of E

ngineers had neglected its NEPA duties when,

one third of the way th rough construction of a dam, it

received information arguably suggesting that the dam would

cause mo re severe environmental harm than had been

supposed at

the time the EIS had been completed and

construction app roved. Regulations require an agency to

prepare a Supplementa l Environmental Impact Statement

when “[t]here are significant new circumstances or

information relevant to environmental concerns and bearing

on the proposed action or its impa cts,” 40 C.F.R.

§ 1502.9(c)(1)(ii), and the parties agreed that agencies were

required to take a “hard look” at ev idence suggesting that this

standard had been met. Marsh

, 490 U.S. at 370-7 4. The

Court rejected plaintiffs’ view that a reviewing court should

examine the evidence afresh, ruling inst e ad that the usual

“arbitrary and capricious” standard should apply. I d

. at 37 5

- 78. EMR suggests that the current circumstances are a “fair

parallel” to those in Marsh . Petitioner’s Br. at 36.

The FCC argues strenuous l y that it satisfied the “hard

look” requirement, but we need not resolve that issue. In

Norton v. Southern Utah Wilderness Alliance

, 124 S. Ct. 2373

(2004), the Court declined to apply M arsh where the fe deral

actio n in question was approval of a land use plan. Unlike the5

dam in Marsh

, that “action ” was complete when the new

information was received. I d

. at 2384-85. Presumably later

actions pursuan

t to the plan might be significant enough to

require NEPA fili

ngs, just as some FCC actions relating to RF

radiation will need new environmental studie s—including, for

example, the circumstances where the current regulatio n s call

for such studies. But the regulations having been adopted,

there is at the moment no “ongoing” federal action, i d

. a t

2385, and no duty to supplement the agency’s pr ior

environmental inquiries.

Thus we review the Commission’s rejection of EMR’s

petition as we would agency rejection of any petition to

initiate a rulemaking. Such a decision is to be overturned if it

is “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. § 706(2)(A); see

American Horse Protection Ass’n, Inc. v. Lyng

, 812 F.2d 1, 4

(D.C. Cir. 1987). As applied to refusals to initiate

rulemakings, this standar d is “at the high end of the range” of

deference, see American Horse

, 812 F.2d at 4 -5, and an

agency refusal is ov

erturned only in the “rarest and most

compelling of circumstances,” WWHT, Inc. v. FCC

, 656 F.2d

807, 818 (D.C. Cir. 1981).

EMR argues that the Commission’s refusal to

undertake a rulemaking constitutes an improper delegation of

its NEPA duties to private organizations and gov ernment
agencies. Indeed, in formulating its RF regulations, and in

deciding whether to re-open the issue, the Commission has

relied on other government agenc ies and non-governmental

expert organizat

ions with specific expertise on the health

effects of RF rad iation. See G uidelines for Evaluating the

Environmental Effects of Radiofrequency Radiation

, 8 FCC

Rcd 2849, 28 49, ¶ 1 (1993). EMR says this is improper,

citing cases req uiring that a federal agency maintain6

responsibility f

or the final conclusion of an EIS. See, e.g.,

Sierra Club v. Sigler

, 695 F.2d 957, 962 n.3 (5t h Cir. 1983)

(agency may not rubberstamp a consultant-prepar ed EIS);

Essex County Preservation Ass’n v. Campbell

, 536 F.2d 956,

960 (1st Cir. 1976); Sierra Club v. Lynn

, 50 2 F.2d 43, 58-59

(5th Cir. 1974); see also Communities Against Railway

Expansion, Inc. v. FAA , 355 F.3d 678, 686 (D.C. Cir. 2004).

The Commission appears not to have abdicated its

responsibilities, but rather to have properly credited out side

experts. It found that the Institute of Electrical and Electronic

Engineers (a non-profit entity with members from

g overnment, industry, and the academy), and the “federa l

a gencies and their personnel that participate in its commit tees

and subgroups,” are “composed of lea ding experts in this

area,” and that there was “no other comparable group of

experts with

which to consult or upon which to rely.” 18 FCC

Rcd at 16826, ¶ 10. EMR does not contest these propositions.

In upholding the earlier decision not to tighten regulation on

account of non-thermal effects, the Second Circuit rejected a

claim that the Commi ssion had improperly relied on expert

standard-setting organiz ations. C ellular Phone Taskforce

, 205 F.3d at 90. Moreover, as the Environmental Protection

Agency is “the agency with primacy in evaluating

environmental impacts,” id

. at 91, the FCC’s decisio n not to leap in, at a time when t

he EPA (and other agencies) saw no

compelling case for action, appears to represent the sort of

priority-setting in the use of a gency resources that is least

subject to second-guessing by courts. See, e.g., A merican

Horse

, 812 F.2d at 4. Finally, the Commission’s

determination to keep an eye on developmen ts in other expert

agencies suggests that here, as in Cellular Phone Taskforce

, the Commissio n has an adequate “mechanism in place for

accommodating changes in scient ific knowledge.” 205 F.3d

at 91.7

In what is at a minimum in “tension” with its

abdication claim, EMR asserts that the Commission has also

violated its duty to coordinate with other federal ag encies to

f acilitate NEPA’s environmental goals. See 40 C.F.R. §§

1500.5(b), 1501.1(b). In any event, the argument was not

presented to the Commi ssion and therefore we may not

address it. 47 U.S.C. § 405; see also BDPCS, Inc. v. FCC

, 351 F.3d 1177, 1182 (D.C. Cir. 2003).

EMR’s submissions implicitly raise one of the

strongest potential base s for overturning an agency’s refusal

to initiate a rulemaking—that “a significant factual predicate

of a prior decision on

the subject . . . has been removed.”

WWHT, 656 F.2d at

819; see also A merican Horse

, 812 F.2d

at 5; Geller v. FCC

, 610 F.2d 973, 9 80 (D.C. Cir. 1979).

EMR suggests that the studies it submitted ( a fter the decision

of the Office of Engineering & Technology) show that

exposure to RF radiation is uns afe at levels too low to cause

thermal effects. But the articles submitted are nothing if not

te ntative. One, for example, hypothesizes a mechanism by

which cell phone rad iation might promote cancer, but also

notes that “[t]o date, there i s limited scientific evidence of

health issues, and no mechanism by which mobile phone

radiation could influence cancer development.” Peter W.

French et al., Mobile Phones, Heat Shock Pro teins and

Cancer

, 67 Differentiation 93, 93 (2000). We find nothing in

those studies so strongly evidencing risk as to call into

question the Commis s ion’s decision to maintain a stance of

what appears to be watchful waiting.

In its reply brief EMR t

ries to shore up its factual case

by offering additional reports of possible n on-thermal risks.

As the reports were not submitted to the Commission before it

acted, they cannot be a basis for ove rturning the order. 47

U.S.C. § 405; see also A T&T Wireless Services, Inc. v. FCC

,8

365 F.3d 1095, 110 1 (D.C. Cir. 2004). The Commission’s

motion to strike one of these references is dismissed as moot.

As the Commission’s decision not to initiate an

i nquiry neither violated NEPA nor was otherwise an a buse of

discretion, the petition for review is

Denied

.