At Court’s direction, FCC examining the environmental effects of its tower registration process

The worm is turning.

Having long required various applicants to undertake “Environmental Assessments” (EAs) in connection with their proposals, the Commission now finds itself in the unenviable position of having to do its own EA relative to the effects of its Antenna Structure Registration (ASR) Program on migratory birds. The Commission has kicked off its EA with a public notice announcing a series of three public meetings and an opportunity to submit written comments.

Not surprisingly, this is not something the FCC seems particularly eager to dash into. In fact, its obligation to perform the EA came about when the Commission lost a case in the U.S. Court of Appeals for the D.C. Circuit nearly three years ago – and before then, the issue of the impact of towers on birds (or vice versa) had already been a subject of considerable controversy for at least five years. In 2009 the Commission solicited comments on bird-related issues, and earlier this year a private compromise was reached by a number of tower-related groups and bird-related groups; that compromise was submitted to the FCC, which has taken no action on it to date.) But now, at long last, the Commission is moving forward to comply with the National Environmental Policy Act (NEPA).

The first step in this process is an EA, which is a preliminary investigation of the likely environmental impact of the ASR program. If the EA indicates that the program will result in no significant environmental effects, the Commission will issue a Finding of No Significant Impact (that’s right, a FONSI – not to be confused with Fonzie from Happy Days). But if the EA indicates that any “significant” environmental impacts might result from the ASR program, then the Commission must carry out a more extensive analysis – the dreaded Environmental Impact Statement (EIS).

Why has the FCC been sucked into the NEPA vortex?

Environmental groups have long claimed that towers kill as many as 50 million birds per year, and that the Commission should therefore apply NEPA procedures to the ASR program. Tower operators protest that towers kill fewer than that. Previously, the FCC claimed this lack of consensus – and the lack of specific evidence – relieved it of the NEPA-imposed obligation to consider the environmental effects of the ASR program.

In 2008, the D.C. Circuit rejected the Commission’s argument. Under Commission’s own rules implementing NEPA, if an action “may have significant environmental impact, the Bureau will require the applicant to prepare an EA”. According to the Court, the Commission’s insistence that environmental groups show definitive evidence of significant effects “plainly contravenes the ‘may’ standard”.   Furthermore, the squabble over the number of birds killed confirms, rather than refutes, that registered towers may have significant environmental impact. Finally, the Court observed, the FCC’s refusal to consider the environmental effects of on these grounds goes against the basic intent of NEPA: ensuring that agencies consider environmental impacts before they act – that is, before the full ramifications are known – rather than wait until it is too late.

Accordingly, the Court held, the Commission must conduct an EA to determine whether an EIS is called for before the Commission can refuse to conduct an EIS. Pursuant to the Court’s direction, the Commission is, by its recent Public Notice, doing just that: a Programmatic Environmental Assessment (PEA) of the ASR program to (a) examine the potential effects of that program on migratory birds and (b) determine whether a programmatic EIS is necessary.

What does all this paperwork do for the birds? NEPA does not operate by imposing substantive environmental mandates on federal agencies. Rather, it requires them to explicitly thinkabout environmental issues before they take action. Specifically, preparing an EIS will require the FCC to set out a number of alternative ways to reach its regulatory goals and the environmental impact (e.g., the anticipated mortality rates of migrating birds) of each alternative. The purpose is to ensure that the agency has before it the environmental consequences of each scenario before it chooses which way to go. (The process also informs the public of the environmental aspects of the proposed action.) In this case, even if the Commission concludes from its EA that no EIS is necessary, the Commission has already committed to use the EA process to “consider alternatives to address potential environmental effects”.

Although NEPA does not require the FCC to complicate its tower registration program, it may well have that effect. Historically, tower registration has been a simple matter of uploading certain basic information about the tower to the Commission’s ASR system, which then automatically generates a registration number with no muss and no fuss. The upcoming EA process will undoubtedly serve as yet another forum for the ongoing struggle between tower owners and environmental groups. Any resulting compromise, such as the one put forth last spring, seems likely to add layers of bureaucratic complexity to the ASR system, particularly if the Commission is expected to assess the potential environmental impact of any individual towers (there are over 100,000 towers in the Commission’s database).

Comments about the PEA may be submitted by mail, by hand, or electronically through a link on the Commission’s PEA website. The deadline is January 14, 2011. Or better yet, you can present your comments in person at one of the three “scoping meetings” currently on the schedule. Those meetings are on tap in Washington, D.C. (1:30-4:30 p.m. ET on December 6, 2010), Chula Vista, California (6:00-8:30 p.m. PT on December 13, 2010) and Tampa, Florida (6:00-8:30 p.m. ET on December 15). The DC meeting will be held in the FCC headquarters. The Chula Vista gig will be at Civic Center there, and the Tampa confab will be at the John F. Germany Public Library. Come one, come all – but note that seating may be limited.