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Trial Strategy Memorandum – A Tripartite Offensive Under the First, Fifth, and Tenth Amendments

Constitutional Assault on 47 U.S.C. § 332(c)(7)(B)(iv)
A Tripartite Offensive Under the First, Fifth, and Tenth Amendments

To: Client Consortium (Municipal League of Cities, Environmental Health Trust, et al.)
From: Litigation Team
Date: October 18, 2025

Executive summary

Section 332(c)(7)(B)(iv) (“§ 704(b)”) bars state and local governments from regulating personal wireless facilities “on the basis of the environmental effects of radio frequency emissions” whenever a site complies with FCC limits. That single sentence disables core police‑power judgments at the decisive moment in siting. Our path:

  • Primary engine (Fifth Amendment): Treat government‑authorized, continuous RF fields crossing parcel boundaries as a permanent, easement‑like invasion—a per se taking under the Supreme Court’s physical‑invasion line (Loretto/Cedar Point) and the aviation/smoke cases (Causby/Griggs/Richards). The D.C. Circuit’s EHT v. FCC remand undermines any claim that the current federal baseline forecloses compensation arguments. Justia Law+4Justia Law+4Supreme Court+4

  • Flanking claims (First & Tenth Amendments): Frame § 704(b) as (i) an unconstitutional command that excludes a category of salient facts from local decision criteria (while preserving citizen speech)—and (ii) a Murphy‑style negative command that commandeers state decisionmaking, not mere garden‑variety preemption. These lanes are uphill under existing precedent, but post‑Loper Bright (Chevron overruled) they’re newly contestable. Justia Law+2Supreme Court+2

  • Forums and vehicles: (1) Fifth Amendment inverse condemnation/Tucker Act cases with parcel‑specific engineering records; (2) carefully tailored as‑applied First/Tenth Amendment suits where boards are forced to disregard robust, non‑pretextual health evidence; and (3) strategic Ninth Circuit and D.C. Circuit appeals teed for en banc or cert in the post‑League of California Cities v. FCC and post‑Loper Bright landscape. Ninth Circuit Court of Appeals+1

Statutory target and current posture

Text: “No State or local government… may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations….” 47 U.S.C. § 332(c)(7)(B)(iv). Legal Information Institute

Backdrop: The D.C. Circuit remanded the FCC’s 2019 decision reaffirming its 1996 exposure limits, holding the Commission failed to provide a reasoned explanation for non‑cancer health and environmental effects. The order stands remanded; petitioners have pressed the agency for compliance in 2025. Justia Law+2Federal Communications Commission+2

Ninth Circuit climate: In League of California Cities v. FCC (2024), the court curbed parts of the FCC’s “upgrade” clarifications (notably on concealment) while upholding much else—signaling willingness to check overreach in siting micromanagement. Ninth Circuit Court of Appeals+1

Post‑Chevron world: In Loper Bright (2024), the Supreme Court overruled Chevron, requiring courts to exercise independent judgment on statutes—critical when asking courts to read § 704(b)’s scope without deference to the FCC’s gloss. Supreme Court

Fifth Amendment: the RF easement as a per se taking (primary claim)

Legal frame

  1. Physical‑invasion per se rule: A government‑authorized permanent physical occupation is a per se taking (Loretto); compelled access for third parties is likewise per se (Cedar Point). Justia Law+1

  2. Intangible‑but‑physical invasions: Recurrent overflights/noise and channeled smoke/gases can create compensable easements (Causby, Griggs, Richards). RF is electromagnetic energy—physical, measurable, directed—so a continuous, parcel‑specific RF field fits these analogies. Justia Law+2Justia Law+2

  3. Distinguishing Florida Power: Regulating prices in voluntary pole‑attachment leases without compelled access is not per se. Here, § 704(b) removes the locality’s ability to exclude an RF field as a siting basis, and FCC licensing/permits authorize constant emissions that cross neighboring boundaries—the invasion is not merely economic regulation. Justia Law

Science to establish materiality (bolsters takings, not a liability element)

  • WHO‑commissioned 2025 systematic review (Environment International): High certainty for gliomas and malignant heart schwannomas in male rats under chronic RF exposure. PubMed+1

  • U.S. National Toxicology Program (final): Clear evidence of malignant heart schwannomas in male rats; some evidence of brain gliomas. (Use the NTP’s exact language.) National Toxicology Program

  • Ramazzini (2018, far‑field/base‑station‑like): Increased heart schwannomas at highest exposure. National Toxicology Program

Use: These authorities demonstrate RF as a non‑trivial, directed physical force—helping courts treat the field on your façade/bedrooms like Causby/Griggs/Richards invasions. (The claim is about appropriation/invasion and property impact, not proving personal injury.) Justia Law+2Justia Law+2

Evidence blueprint (what wins)

  • Government authorization: Identify FCC licenses, local permits, and cite § 332(c)(7)(B)(iv) to show federal authorization + local implementation of the emissions that cross onto the parcel. Legal Information Institute

  • Continuity & directionality: 24‑hour calibrated spectrum‑analyzer logs (channel/PCI/ARFCN attribution), sector azimuth/down‑tilt/EIRP, and antenna patterns showing a main‑lobe/high‑field zone on the home (outdoor façades and bedrooms). This is your Richards “direct, peculiar, substantial” proof. Justia Law

  • Valuation impact: Appraisal using overflight‑easement comparables (diminution and loss of use). (Causby/Griggs methodology.) Justia Law+1

Procedures & remedies

  • Where the facility is in public ROW/government land: File inverse condemnation against the governmental proprietor (Griggs‑style). Justia Law

  • To reach federal authorization: Seek just compensation under the Tucker Act in the Court of Federal Claims (or Little Tucker Act in district court, as amount dictates). (Ground the taking in the federal authorization + preemption framework.)

  • Ask for partial summary judgment on per se nature (physical invasion). Alternatively, proceed under Arkansas Game & Fish to show compensable intermittent invasions if facts are not “permanent.” Justia Law

First Amendment: restoring lawful fact‑finding at hearings (targeted as‑applied claims)

What the doctrine actually says today: Residents are not gagged; Section 704 limits what officials may rely on in their land‑use decisions. The Tenth Circuit rejected broad speech/petition claims for that reason (Santa Fe Alliance). So plead as‑applied claims focused on the exclusion of material facts from the official decision criteria where the record shows robust, on‑point evidence and § 704(b) is the decisive bar. Justia Law

Compelled‑silence / forum theory: In a limited public forum (planning hearing), government may use subject‑matter limits if reasonable and viewpoint‑neutral—but forcing decisionmakers to ignore probative, parcel‑specific evidence while adjudicating a police‑power question is a different First Amendment injury. Use CTIA v. Berkeley to show courts tolerate truthful, non‑misleading RF‑related disclosures—even as preemption later shut Berkeley down—then argue the incongruity of forbidding boards to rely on materially similar, factual RF evidence in siting. (This is the wedge for as‑applied relief.) Justia Law+1

Relief sought: Declaratory judgment that—as applied to facilities within a defined proximity to dwellings and schools with parcel‑specific high‑field showings—§ 704(b)’s categorical exclusion of “environmental effects” violates the First Amendment because it irrationally disables core fact‑finding in an adjudicative forum. Pair with preliminary injunction under Winter. (This is ambitious; keep the record immaculate.) Legal Information Institute

Tenth Amendment: Murphy and the negative‑command problem (strategic, but uphill)

Courts have treated § 704 as permissible preemption, not commandeering. See Cellular Phone Taskforce and City of Portland upholding the FCC’s 2018 regime (mostly). But Murphy v. NCAA condemns federal negative commands that tell states what they may not authorize—language structurally similar to § 704(b)’s “may not regulate… on the basis of” command. Post‑Loper Bright, ask the court to decide § 704(b)’s meaning and reach without Chevron and to police the line between preemption of private conduct and direct control of state decision criteria. This is the en banc/cert‑bait if a panel doubles down on the old deference. Supreme Court+2Supreme Court+2

Building the record (non‑negotiables)

  1. Agency & permit file: FCC license(s), local permits, RF compliance submissions. Legal Information Institute

  2. Engineering attribution: Logs tying on‑parcel power density to the specific site and sectors (24‑hour captures, identified channels).

  3. Propagation & geometry: Sector azimuths, mechanical/electrical down‑tilt, heights; where possible, main‑lobe mapping onto façades/bedrooms.

  4. Valuation: Before/after and market resistance analysis using overflight analogs. Justia Law

  5. Science packet: WHO 2025 (high‑certainty glioma & heart schwannoma in male rats); NTP (clear evidence heart schwannoma; some evidence glioma); Ramazzini 2018 (far‑field). (Again: for materiality, not personal‑injury causation.) National Toxicology Program+3PubMed+3DORIS+3

Vehicles, forums, and appellate posture

  • ROW or government‑owned land: Inverse condemnation in state court; facts teed to Griggs. Justia Law

  • Private‑land sites with federal authorization at issue: Tucker Act route.

  • As‑applied 1A/10A strikes: § 1983 actions in N.D. Cal. (Ninth Circuit pipeline) and D.D.C. (D.C. Circuit), tied to (i) strong parcel records and (ii) EHT remand context. Justia Law

  • En banc strategy: In the Ninth, pair a panel petition with Rule 35/40 language (uniformity/exceptional importance), emphasizing Murphy and Loper Bright as intervening Supreme Court law. Note that FRAP consolidated Rule 35 content into Rule 40 in 2024—track those requirements. Legal Information Institute

Anticipating the pushback (and our answers)

  • “Florida Power controls—no per se taking.”
    Answer: Florida Power involved price regulation on voluntary leases, no compelled access, and no parcel‑crossing invasion. Our claim is Cedar Point/Loretto + Causby/Griggs/Richards—a government‑authorized, continuous physical invasion across the boundary. Justia Law+5Justia Law+5Supreme Court+5

  • “RF is intangible; not a physical occupation.”
    Answer: The Court compensates noise, vibration, smoke, gases where direct, peculiar, substantial. RF is physical energy with measurable field strengths—the law already pays for intangible physical forces that invade property. Justia Law+2Justia Law+2

  • “Compliance with FCC limits defeats takings.”
    Answer: Takings is not about safety; it is about appropriation and invasion. And the D.C. Circuit has already remanded the FCC’s non‑cancer/environmental rationale. Justia Law

  • “First Amendment claims fail; citizens can still speak.”
    Answer: We proceed as‑applied, where the forum’s adjudicative task is crippled by a categorical exclusion of material facts (while other non‑health criteria remain). That is a distinct First Amendment injury to the decision process, not citizen speech per se. Justia Law

  • “Tenth Amendment = preemption, not commandeering.”
    Answer: Murphy condemns negative commands that tell states what they may not authorize. Post‑Loper Bright, courts must read § 704(b) de novo and decide whether this is true preemption of private conduct or an impermissible directive controlling state decision criteria. Supreme Court+1

Model pleading snippets (use/adapt)

Takings (per se physical invasion):
“By licensing [SITE] and, through § 332(c)(7)(B)(iv), disabling local officials from excluding RF on health grounds, defendants have authorized a continuous physical invasion of plaintiffs’ land by directed RF energy, appropriating an easement‑like servitude across their parcels. That permanent invasion is a per se taking under Loretto and Cedar Point, or, alternatively, compensable under Causby/Griggs/Richards as a continuous, direct, and peculiar interference with use and value.” Justia Law+4Justia Law+4Supreme Court+4

First Amendment (as applied):
“Section 332(c)(7)(B)(iv) as applied to [applications within ___ feet of dwellings/schools with documented main‑lobe exposure] forbids decisionmakers to consider truthful, non‑misleading, parcel‑specific RF evidence that is central to the police‑power inquiry. That content‑based exclusion of material facts irrationally distorts the adjudication and violates the First Amendment in a limited‑public‑forum setting.” Justia Law

Tenth Amendment:
“By dictating that local governments may not regulate on a specified basis while leaving them to administer the process, Congress has commandeered state adjudication through a negative command condemned by Murphy. In light of Loper Bright, the Court must construe § 332(c)(7)(B)(iv) without Chevron deference and strike down this intrusion on state sovereignty.” Supreme Court+1

Practical playbook (90‑day build)

  1. Records & measurements: Pull complete siting records; run 24‑hour calibrated logs (façades/bedrooms) with channel attribution; export antenna parameters from permit files. Legal Information Institute

  2. Mapping: Produce parcel‑level main‑lobe overlays and duty‑cycle charts.

  3. Valuation: Commission overflight‑style diminution analysis. Justia Law

  4. Science packet: WHO 2025 SR (high‑certainty tumor signals), NTP (clear evidence heart schwannoma; some evidence glioma), Ramazzini 2018 (far‑field). PubMed+2National Toxicology Program+2

  5. Filing:

    • Takings in state court (ROW/government land) and/or Tucker Act in CFC.

    • As‑applied 1A/10A in N.D. Cal. and D.D.C., knitted to EHT remand and Ninth Circuit League constraints on FCC overreach. Justia Law+1

  6. Appellate path: Preserve en banc predicates (uniformity / exceptional importance). Note FRAP’s 2024 amendments (Rule 35 content now in Rule 40). Legal Information Institute

Risk assessment (blunt but actionable)

  • Fifth Amendment: Best runway. Success hinges on proof of parcel‑specific, continuous invasion plus authorization nexus. Remedies can be compensation (pressure point) and, in some alignments, declaratory relief that forces upstream change. Justia Law+2Justia Law+2

  • First/Tenth Amendment: Headwinds from Santa Fe and preemption cases; use as‑applied posture and Murphy/Loper Bright to pry open space. Wins here can catalyze Congressional fixes and rulemaking recalibration (the FCC is already probing new “barriers to deployment” in 2025). Justia Law+1

Messaging & legislative tailwind

  • Core line: “Takings, not safety: when federally authorized RF fields continually cross your boundary, they appropriate an RF easement. The Constitution demands compensation—or respect for local authority to avoid the invasion.”

  • Hill & agency asks: Use EHT remand inertia and Loper Bright to argue for statutory amendment of § 704(b) and updated exposure rules; cite League to show courts are policing agency overreach at the margins. Justia Law+1

Appendix: Authorities (quick pull)

Final note on facts

I’ve corrected two specifics to ensure we stay bullet‑proof in court papers:

  • WHO review: It expressly rated the certainty high for gliomas and malignant heart schwannomas in male rats under chronic RF exposure. Cite that directly. PubMed+1

  • NTP: Use NTP’s own language: “clear evidence” for malignant heart schwannomas in male rats and “some evidence” for brain gliomas. That precision avoids avoidable attacks. National Toxicology Program

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