Trial Strategy Memorandum – Executive Summary

Constitutional Assault on 47 U.S.C. § 332(c)(7)(B)(iv) (“§ 704(b)”)
A Tripartite Offensive Under the Fifth, First, and Tenth Amendments
To: Client Consortium (Municipal League of Cities, Environmental Health Trust, et al.)
Date: October 18, 2025

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Problem: § 704(b) forbids state and local governments from regulating the “placement, construction, and modification” of wireless facilities “on the basis of the environmental effects of radio frequency emissions” if a site meets FCC exposure limits. This is the statute’s operative text. Legal Information Institute

Opening to attack: The D.C. Circuit in Environmental Health Trust v. FCC remanded the FCC’s 2019 reaffirmation of the 1996 RF limits for failure to reasonably address non‑cancer health effects and environmental impacts—a live administrative defect that undermines any safe‑harbor narrative around the current limits. The remand stands; the Commission has not cured it. Justia

Primary engine (Fifth Amendment): Treat high‑intensity, sector‑directed RF fields that predictably cross onto neighboring parcels as a government‑authorized, continuous physical invasion—i.e., a de facto easement—triggering per se compensation under Loretto and Cedar Point, and compensable under Causby/Griggs/Richards even if you proceed in the alternative. Justia Law+4Justia Law+4Supreme Court+4

Flanks (First & Tenth Amendments):

• First Amendment (as‑applied): § 704(b) excludes materially probative health evidence from the decision criteria of a limited public forum (planning hearings), distorting adjudication. This is a content‑based exclusion of facts (not a gag on citizen speech). Use Sorrell‑style framing and distinguish the Tenth Circuit’s Santa Fe Alliance (which rejected broader 1A theories) by building a granular, parcel‑specific record. Supreme Court

• Tenth Amendment: Press the Murphy v. NCAA “negative command” theory—Congress may not dictate what reasons state decisionmakers may or may not use—while acknowledging that earlier courts labeled § 704(b) “preemption, not commandeering” (Cellular Phone Taskforce). Post‑Loper Bright (Chevron overruled), courts must interpret § 332 de novo. Supreme Court+2Justia+2

Why the science matters (to takings, not causation): A WHO‑commissioned, peer‑reviewed 2025 animal evidence review found high certainty of evidence for increased gliomas and malignant heart schwannomas in male rats under chronic RF exposure. NTP (2018; updated 2025) states “clear evidence” of malignant heart schwannomas in male rats and some evidence for brain gliomas. Ramazzini (2018) reported a statistically significant increase in male‑rat heart schwannomas under far‑field/base‑station‑like exposures. These are not to prove health liability—they show RF is a material physical force, not a trivial abstraction, strengthening the Causby/Griggs/Richards analogy. National Toxicology Program+1

Venue posture & procedural tailwind: The Ninth Circuit is newly skeptical of FCC procedural overreach: League of California Cities v. FCC (2024) vacated parts of the FCC’s 2020 “upgrade clarifications” as unlawful legislative‑rulemaking, though it left other interpretive pieces intact. Pair this with City of Portland v. FCC (2020) and run de‑novo interpretation post‑Loper Bright. CA9 Court of Appeals+1

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Statutory Target & Live Baseline

Text: “No State or local government … may regulate … 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

Current posture: EHT v. FCC remanded the FCC’s 2019 order for an inadequate explanation of non‑cancer health and environmental issues, expressly including children, long‑term exposures, modulation/pulsation, and environmental effects. The remand remains unresolved; the Commission’s prior rationale stands under judicial shadow. Justia

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I. Fifth Amendment (Primary Claim): The RF Easement as a Per Se Physical Taking

Legal frame. A government‑authorized, continuous, parcel‑specific, physical invasion is per se compensable—whether by hardware (Loretto) or compelled third‑party access (Cedar Point). Intangible‑but‑physical invasions (noise/overflights/smoke) are compensable when direct and substantial (Causby, Griggs, Richards). RF energy is physical (electromagnetic), directed (sector azimuth/tilt/EIRP), measurable (power density/Poynting flux), and predictably crosses boundaries 24/7 when a sector faces a residence. Justia Law+4Justia Law+4Supreme Court+4

Government authorization. The federal scheme (spectrum licenses + RF limits) plus § 704(b)’s preemption disables local health‑based exclusions and underwrites the spillover. Local permits implement that federal structure. (Griggs teaches that government‑enabled flight paths created a compensable easement; same logic here.) Legal Information Institute+1

Distinguish Florida Power. That case addressed price regulation of voluntary pole‑attachment leases, not a compelled physical invasion of a third party’s land. Here, RF emissions invade neighboring parcels irrespective of consent; that is Causby/Griggs/Richards, not Florida Power. Justia Law+3Justia Law+3Justia Law+3

Materiality (why this “invasion” isn’t trivial).

• WHO‑commissioned 2025 review (Environment International): “The CoE [certainty of evidence] for an increased risk in glioma was judged as high … [and] judged as high for an increase in heart schwannomas in male rats.”

• NTP (2018 Final; updated webpage 2025): “Clear evidence of an association with tumors in the hearts of male rats (malignant schwannomas)” and “some evidence … malignant gliomas” in brains of male rats. National Toxicology Program

• Ramazzini (2018, far‑field/base‑station‑like): statistically significant increase in heart schwannomas in male rats at the highest exposure (50 V/m). PubMed

Procedural plan & remedies.

• Forum: If the facility sits in public ROW or on government land → inverse condemnation against the governmental proprietor (Griggs‑style). Otherwise, press federal authorization via Tucker Act (CFC) with a complement of state inverse claims as available. Justia Law

• Record: (1) Authorization: FCC license, local permit; identify § 704(b). (2) Continuity & directionality: sector maps (azimuth/tilt), antenna patterns, propagation overlays; 24‑hour calibrated logs attributing energy to the site (ARFCN/PCI). (3) Impact: professional appraisal using overflight‑easement methods for diminution; declarations on functional impairment of specific rooms. (4) Science packet (WHO/NTP/Ramazzini) to underscore physicality, not to prove tort causation. Legal Information Institute+2National Toxicology Program+2

• Relief: Move for partial summary judgment on per se theory (Loretto/Cedar Point) or, alternatively, on a Causby continuous‑invasion theory (and Arkansas Game & Fish supports compensation even for intermittent but recurring invasions). Justia Law+3Justia Law+3Supreme Court+3

Model allegation (takings): “By licensing [SITE] and, through 47 U.S.C. § 332(c)(7)(B)(iv), disabling health‑based exclusion, defendants have authorized a continuous physical invasion of plaintiffs’ land by directed RF energy, appropriating an RF easement. This is a per se taking under Loretto/Cedar Point, or compensable under Causby/Griggs/Richards for direct, peculiar, and substantial invasion.”

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II. First Amendment (As‑Applied): Decision‑criteria Blindfolding in a Limited Public Forum

What survives & what does not. Citizens may speak about health; courts have rejected “gag rule” rhetoric. The Tenth Circuit in Santa Fe Alliance held § 704(b) limits what officials may consider in deciding applications; it does not punish or prohibit speech or petitions. That defeats broad 1A attacks—but it leaves room for as‑applied challenges when the forum’s decision criteria are irrationally distorted by excluding probative factual submissions (e.g., parcel‑specific exposure data) during adjudication. Supreme Court

How to posture it. Limited‑public‑forum rules must be reasonable and viewpoint‑neutral. Where a record contains site‑specific RF field evidence and uncontested engineering showing a directed, high‑field main lobe on bedrooms, a categorical refusal to credit such facts as facts (not “health regulation”) can be framed as unreasonable content‑based exclusion when those same bodies rely freely on aesthetics, spacing, and noise. Support with Sorrell‑style “truthful, non‑misleading” information analysis and the Ninth Circuit’s recognition in CTIA v. Berkeley (preemption later enjoined) that factual RF notices can be constitutional compelled speech in other contexts. Justia Law

Model allegation (1A as‑applied): “As applied to [high‑field siting within 500 ft], § 704(b) excludes truthful, parcel‑specific RF evidence from the adjudicative calculus of a limited public forum, unreasonably distorting fact‑finding and decision criteria.”

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III. Tenth Amendment: Murphy’s “Negative Command” and Post‑Chevron Statutory Reading

The ask: Treat § 704(b)’s “may not regulate … on the basis of [RF] environmental effects” as an impermissible negative command that dictates state decision criteria, contravening Murphy v. NCAA. Cellular Phone Taskforce sustained § 704(b) against Tenth Amendment attack as valid preemption, but that predates Murphy’s articulation and relied on Chevron‑tinged deference that Loper Bright has now discarded. Press for de novo statutory reading of § 332(c)(7) and a narrower construction avoiding commandeering problems. Supreme Court+2Justia+2

Candor: Courts have thus far treated § 704(b) as preemption, not commandeering (Cellular Phone Taskforce; City of Portland). Your path is to show why this clause is different: it dictates the reasons a sovereign may employ when exercising retained police powers—precisely the “who sets state policy” concern in Murphy. Use Murphy’s language and federalism logic to argue severance of the clause. Supreme Court+1

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Evidence & Engineering Blueprint (Non‑Negotiables)

1. Authorization file: FCC license(s), local permit, and the § 704(b) preemption clause. Legal Information Institute

2. Directionality & continuity: Sector azimuth/tilt, H/V patterns, EIRP, propagation overlays to show the main lobe superimposed on façades/bedrooms; 24‑hour calibrated logs tying emissions to this site (ARFCN/PCI).

3. Impact: Appraisal using overflight‑easement methodology (diminution in value; functional loss of specific rooms).

4. Science annex (materiality): WHO‑commissioned 2025 review (high certainty for glioma & heart schwannoma); NTP final (clear evidence heart schwannoma; some evidence glioma); Ramazzini (far‑field increase in male‑rat heart schwannomas). National Toxicology Program+1

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Fora, Vehicles, and Appellate Vectors

• Takings (lead claims):

  • ROW/government‑land sites: Inverse condemnation vs. the governmental proprietor (Griggs). Justia Law

  • Federal authorization nexus: Tucker Act in the Court of Federal Claims (or Little Tucker in district court under $10k).

  • Seek PSJ on per se occupation (Loretto/Cedar Point). Alternative: Causby continuous invasion and Arkansas Game & Fish intermittent‑invasion compensation. Justia Law+3Justia Law+3Supreme Court+3

• First/Tenth (as‑applied/facial):

  • § 1983 in N.D. Cal./D.D.C. (as‑applied 1A + federalism claim keyed to EHT remand). Pair with requests for declaratory and preliminary injunctive relief. Justia

• Ninth Circuit climate: League of California Cities v. FCC (2024) vacated concealment and siting approval “clarifications” as legislative rules adopted without APA procedures, while upholding shot‑clock commencement and equipment‑cabinet clarifications as interpretive/consistent with prior orders. Use this procedural skepticism to frame § 704(b)’s reach narrowly on appeal.

• De‑novo interpretation post‑Chevron: Loper Bright requires courts—not agencies—to say what § 332(c)(7) means; that undercuts earlier deference‑heavy outcomes (e.g., City of Arlington on timing). Supreme Court+1

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Anticipating Pushback (and your answers)

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Model Pleading Snippets

• Takings (Per Se):
  “By licensing [SITE] and, through 47 U.S.C. § 332(c)(7)(B)(iv), disabling health‑based exclusion, Defendants authorize a continuous physical invasion of Plaintiffs’ land by directed RF energy, appropriating an RF easement. Per se under Loretto/Cedar Point; alternatively compensable under Causby/Griggs/Richards.” Justia Law+4Justia Law+4Supreme Court+4

• First Amendment (As‑Applied):
  “As applied to [high‑field sitings], § 704(b) excludes truthful, parcel‑specific RF facts from the adjudicative calculus of a limited public forum, unreasonably distorting fact‑finding and decision criteria in violation of the First Amendment.” Supreme Court

• Tenth Amendment:
  “§ 704(b)’s command that States may not regulate on the basis of RF environmental effects dictates state decision criteria, a Murphy‑barred negative command; construed de novo post‑Loper Bright, the clause must be severed or read narrowly to avoid commandeering.” Supreme Court+1

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Practical 90‑Day Build

• Days 1–30: Pull FCC/local files; schedule 24‑hour calibrated measurements (outdoor façades + bedrooms), attribute to site (ARFCN/PCI).

• Days 31–60: Finalize propagation overlays; prepare appraisals using overflight‑easement comps.

• Days 61–90: Lock expert declarations; attach WHO 2025, NTP final, and Ramazzini summaries to emphasize physical, non‑trivial invasion; file inverse/Tucker Act actions (takings) and targeted § 1983 actions (1A/10A as‑applied). National Toxicology Program+1

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Messaging & Legislative Tailwind

“RF Easements Demand Pay—Or Local Say.” Takings reframes the fight from disputed toxicology to property rights. Pair courtroom wins with Hill outreach while EHT’s remand remains unresolved; consider riding appropriations/NDAA to strip § 704(b)’s categorical bar. Justia

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Key Authorities (quick pins)

• Statute: 47 U.S.C. § 332(c)(7)(B)(iv) (health preemption). Legal Information Institute

• Remand: Environmental Health Trust v. FCC, 9 F.4th 893 (D.C. Cir. 2021) (non‑cancer & environmental rationale inadequate). Justia

• Takings: Loretto; Cedar Point; Causby; Griggs; Richards; Arkansas Game & Fish. Justia Law+5Justia Law+5Supreme Court+5

• Contrast: FCC v. Florida Power (voluntary leases ≠ per se taking). Justia Law

• First Amendment: Santa Fe Alliance (speech not banned; decision criteria limited); CTIA v. Berkeley (factual RF notice upheld before later preemption). Supreme Court+1

• Tenth Amendment: Murphy v. NCAA (negative command); Cellular Phone Taskforce (earlier preemption framing). Supreme Court+1

• Shot‑clocks & written reasons: T‑Mobile South v. Roswell (reasons required). Legal Information Institute

• Ninth‑Circuit climate: League of Cal. Cities v. FCC (2024) (partial vacatur for APA defects); City of Portland v. FCC (2020). CA9 Court of Appeals

• Chevron is gone: Loper Bright (2024). Supreme Court

• Science (materiality): WHO‑commissioned 2025 review (high CoE glioma + heart schwannoma in male rats); NTP final (clear evidence heart schwannoma, some evidence glioma); Ramazzini 2018 (male‑rat heart schwannomas ↑). National Toxicology Program+1

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Final word

You want zero hedging; here it is: The WHO‑commissioned 2025 review finds “high certainty” for gliomas and heart schwannomas in male rats, and NTP says “clear evidence” for male‑rat malignant heart schwannomas. Those are precise statements from the sources themselves. Use them to show RF is a material, directed, physical invasion—and then win on property law. National Toxicology Program