United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 27, 2004 Decided December 7, 2004

No. 03-1336

EMR NETWORK,

PETITIONER

v.

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA,

RESPONDENTS

On Petition for Review of an Order of the

Federal Communications Commission

Whitney North Seymour, Jr. argued the cause for

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

Nandan M. Joshi, Counsel, Federal Communications

Commission, argued the cause for respondents. With him on

the brief were R. Hewitt Pate, Assistant Attorney General,

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

Andrea Limmer, Attorneys, John A. Rogovin, General

Counsel, Federal Communications Commission, Daniel M.

Armstrong, Associate General Counsel, and Joel Marcus,

Counsel.

Before: EDWARDS and GARLAND, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, 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 radio signals—and with them

radiofrequency (“RF”) radiation. At certain levels RF

radiation may have adverse “thermal” health effects, caused

by heating human tissue. The Commission has issued

regulatory guidelines 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

account. See Guidelines for Evaluating the Environmental

Effects of Radiofrequency Radiation, 12 FCC Rcd 13494,

13505, ¶ 31 (1997). Its decision, resting on the scientific

uncertainty about such effects and the costs of imposing

restrictions without a clearer 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 the Second Circuit decision, EMR

Network filed a petition asking the Commission to initiate an

inquiry on the need to revise the regulations to address nonthermal effects. It relied principally on a letter from members

of the Radiofrequency Interagency Work Group, which is

made up of staff 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 members
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believed “need to be addressed to provide a strong and

credible rationale to support RF exposure guidelines.” J.A.

22. The letter expressly declined to assign priorities to the

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

regulations. After the Office of Engineering & Technology

rejected EMR’s initial petition, but before the Commission

ruled on the issue, EMR submitted several academic studies

discussing potential health effects from exposure to RF

radiation at levels lower than are currently 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” that a rulemaking was warranted. EMR Network

Petition for Inquiry To Consider Amendment of Parts 1 and 2

Regarding Environmental Effects of Radiofrequency

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

EMR now petitions for review of the Commission’s

order, arguing principally that the Commission has violated its

duty 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 102(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 Environmental 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.

Public Citizen, 124 S. Ct. 2204, 2209-10 (2004); Sierra Club
4

v. U.S. Dep’t of Transportation, 753 F.2d 120, 126 (D.C. Cir.

1985). Although the FCC had not prepared a formal EIS in

making its latest revisions to its RF radiation rules, Cellular

Phone Taskforce held that it had “functionally” satisfied

NEPA’s requirements “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. Oregon Natural Resources

Council, 490 U.S. 360 (1989). Marsh considered a claim that

the Corps of Engineers had neglected its NEPA duties when,

one third of the way through construction of a dam, it

received information arguably suggesting that the dam would

cause more severe environmental harm than had been

supposed at the time the EIS had been completed and

construction approved. Regulations require an agency to

prepare a Supplemental Environmental Impact Statement

when “[t]here are significant new circumstances or

information relevant to environmental concerns and bearing

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

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

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

standard had been met. Marsh, 490 U.S. at 370-74. The

Court rejected plaintiffs’ view that a reviewing court should

examine the evidence afresh, ruling instead that the usual

“arbitrary and capricious” standard should apply. Id. at 375-

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

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

The FCC argues strenuously 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 Marsh where the federal

action in question was approval of a land use plan. Unlike the
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dam in Marsh, that “action” was complete when the new

information was received. Id. at 2384-85. Presumably later

actions pursuant to the plan might be significant enough to

require NEPA filings, just as some FCC actions relating to RF

radiation will need new environmental studies—including, for

example, the circumstances where the current regulations call

for such studies. But the regulations having been adopted,

there is at the moment no “ongoing” federal action, id. at

2385, and no duty to supplement the agency’s prior

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 standard is “at the high end of the range” of

deference, see American Horse, 812 F.2d at 4-5, and an

agency refusal is overturned 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 government

agencies. Indeed, in formulating its RF regulations, and in

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

relied on other government agencies and non-governmental

expert organizations with specific expertise on the health

effects of RF radiation. See Guidelines for Evaluating the

Environmental Effects of Radiofrequency Radiation, 8 FCC

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

citing cases requiring that a federal agency maintain
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responsibility for the final conclusion of an EIS. See, e.g.,

Sierra Club v. Sigler, 695 F.2d 957, 962 n.3 (5th Cir. 1983)

(agency may not rubberstamp a consultant-prepared EIS);

Essex County Preservation Ass’n v. Campbell, 536 F.2d 956,

960 (1st Cir. 1976); Sierra Club v. Lynn, 502 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 outside

experts. It found that the Institute of Electrical and Electronic

Engineers (a non-profit entity with members from

government, industry, and the academy), and the “federal

agencies and their personnel that participate in its committees

and subgroups,” are “composed of leading 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 Commission had improperly relied on expert

standard-setting organizations. Cellular 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 decision not to

leap in, at a time when the 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. See, e.g., American

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

determination to keep an eye on developments in other expert

agencies suggests that here, as in Cellular Phone Taskforce,

the Commission has an adequate “mechanism in place for

accommodating changes in scientific knowledge.” 205 F.3d

at 91. 
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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 agencies to

facilitate 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 Commission 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 bases 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 American Horse, 812 F.2d

at 5; Geller v. FCC, 610 F.2d 973, 980 (D.C. Cir. 1979).

EMR suggests that the studies it submitted (after the decision

of the Office of Engineering & Technology) show that

exposure to RF radiation is unsafe at levels too low to cause

thermal effects. But the articles submitted are nothing if not

tentative. One, for example, hypothesizes a mechanism by

which cell phone radiation might promote cancer, but also

notes that “[t]o date, there is 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 Proteins and

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

those studies so strongly evidencing risk as to call into

question the Commission’s decision to maintain a stance of

what appears to be watchful waiting. 

In its reply brief EMR tries to shore up its factual case

by offering additional reports of possible non-thermal risks.

As the reports were not submitted to the Commission before it

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

U.S.C. § 405; see also AT&T Wireless Services, Inc. v. FCC,
8

365 F.3d 1095, 1101 (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

inquiry neither violated NEPA nor was otherwise an abuse of

discretion, the petition for review is 

Denied.