ENVIRONMENT: Cell tower regulations receive court attention

Communication tower contractors recently achieved a victory in court, but may face other uphill struggles on environmental issues associated with tower locations.

A federal court of appeals recently upheld an FCC rule which essentially denies state or local units of government the right to regulate communication towers based upon environmental concerns.

In Cellular Phone Task Force vs. Federal Communications Commission, the Second Circuit Court of Appeals held that state and local laws, including zoning regulations, can’t limit or prohibit communication tower locations due to environmental concerns, so long as these towers meet FCC standards. This case essentially limits or eliminates the ability of zoning authorities to zone communication towers based upon environmental criteria.

However, communication tower contractors may face new federal environmental hurdles due to compliance requirements with other federal laws, such as the National Environmental Policy Act (NEPA). NEPA creates a broad regulatory framework which requires an environmental evaluation of any project which involves the use of federal money or requires a federal license or permit. Technically, the legal obligation to perform an environmental evaluation is the burden of the federal agency responsible for the project.

However, whenever a federal permit or license is involved, the responsible federal agency generally requires the licensee or permittee to conduct the evaluation.

Typically, these evaluations are in the form of either an environmental assessment (EA) or an environmental impact statement (EIS). Implementation of these requirements are generally managed through a tiered process. An EA is generally conducted first. If the EA finds that no significant impact will occur as a result of the proposed action, the inquiry ends and no further evaluation is necessary.

However, if the EA concludes that an impact may occur, an EIS is generally required. This is a much more detailed study of the individual and synergistic environmental impacts a particular project may cause.

Communication tower contractors frequently find themselves with NEPA compliance obligations due to the fact that an FCC license is required for the operation of the transmitter on the tower. Individual or cumulative effects of such towers can be issues such as endangerment to wildlife, soil erosion and sedimentation control concerns as well as proximity to endangered or threatened species or habitat. Accordingly, it is entirely possible that although state or local environmental regulations can’t be utilized to prevent the siting of a communication tower, federal compliance obligations with NEPA may stall or prevent such a project.

Since many of these issues are only now making their way to appellate courts, it is uncertain as to how broad an interpretation of NEPA compliance is applicable to communication tower projects due to the applicability of FCC Rules. However, this most recent case helps provide additional direction on whether or not proper regulation of communication towers can be vested with local units of government.

Joseph Quandt is a partner with the Traverse City law offices of Menmuir, Zimmerman, Kuhn, Taylor and Quandt, PLC. His practice focuses on environmental and business matters. He was formerly an enforcement specialist with the Michigan DEQ. This article is intended to address information of general interest. It does not provide nor is it intended to provide any legal advice regarding any particular situation or subject. BN