The Federal Communications Commission must take a second look and explain how its regulations protect the public from the harmful effects of cell phone towers and wireless device radiation, the D.C. Circuit ruled Friday.
Judge Robert L. Wilkins wrote, “the F.C.C. must describe why it kept the same testing procedures for determining whether devices comply with the guidelines, according to the U.S. Court of Appeals for the D.C. Circuit. The agency also must address the impacts of such radiation on children and the environment.”
The Jackson Hole-based Environmental Health Trust has won a “historic” lawsuit against the Federal Communications Commission.
On Friday, August 13, the 9th District Court of Appeals in Washington, D.C., the country’s second-highest court, ruled in favor of the nonprofit and its fellow petitioners. They argued that the federal agency had not considered new scientific evidence in drafting guidelines for exposure to radiation from cellphones and cell towers.
The last time the F.C.C. updated its guidelines for safe levels of radiation exposure was in 1996.
Several groups, including the Environmental Health Trust, won in federal court to force the F.C.C. to drop the 24-year-old standards it’s used to contend that there’s “no scientific evidence to establish a causal link” between wireless device use and illnesses.
The trust’s Theodora Scarato is a Montgomery County resident active in local zoning issues involving 5G technology. She explained the core of the argument made Monday before a three-judge panel in the U.S. Court of Appeals for D.C.
“The Federal Communications Commission did not review the record when they decided to keep our 24-year-old cellphone and wireless radiation and safety limits,” Scarato said.
Dr. Devra Davis, an epidemiologist with the trust, said the standards set for testing 5G were established 24 years ago.
“They’re out of date,” Davis said, “and they cannot adequately reflect a technology that did not exist and was not even on the drawing boards when those test systems were developed.”
Environmental Health Trust Executive Director Devra Davis opened a Monday press conference by listing a few events from 1996: Kobe Bryant and Shaquille O’Neal were early in their Hall of Fame careers; a gallon of gas cost $1.23.
“Times have changed, but the F.C.C. has not,” Davis said.
The crux of the case rested on the argument that the agency had ignored recent scientific evidence, based on animal studies, that radiation can increase risks for diseases like cancer and childhood health problems for in-utero children, especially at levels emitted by 4G and 5G devices and infrastructure. In 2013, the agency asked for comment regarding the guidance and whether the science had changed in the intervening years, but it decided in 2019 to keep the 1996 guidance in place.
The Environmental Health Trust challenged that decision, and the appeals court sided with the nonprofit. The court said the decision not to restart the rulemaking process and update the guidance needed to be “reasoned” and that the F.C.C. had failed to meet that standard.
In the ruling, the court called the radiation rules too complicated for it to set them, but it did say the agency must in good faith review the science once again and provide its reasoning for changes or a decision to stick with the 1996 guidance.
“We find the Commission’s order arbitrary and capricious in its failure to respond to record evidence that exposure to R.F.F. radiation at levels below the Commission’s current limits may cause negative health effects unrelated to cancer,” the court ruling reads.
Environmental Health Trust, a think tank that promotes a healthier environment through research, education, and policy, sued the F.C.C. about its 2019 order. It pointed to multiple studies and reports published after 1996, and that is in the administrative record. The studies and reports purport to show thaR.F.R.F. radiation at levels below the Commission’s current limits causes adverse health effects unrelated to cancer, such as reproductive problems and neurological problems that span from effects on memory to motor abilities.
“An agency’s decision not to initiate a rulemaking must have some reasoned basis, and an agency cannot simply ignore evidence suggesting that a major factual predicate of its position may no longer be accurate,” the ruling reads.
The court found that although the F.C.C. relied on a conclusory statement from the Food and Drug Administration for some of the justification for not initiating a rulemaking to review the R.F.R. limits, such a conclusory and unexplained statement is not the reasoned explanation required by the Administrative Procedure Act that details steps federal regulatory agencies must take.
“While imitation may be the highest form of flattery, it does not meet even the low threshold of the reasoned analysis required by the A.P.A. under the deferential standard of review that governs here,” the court wrote.” One agency’s unexplained adoption of an unreasoned analysis just compounds rather than vitiates the analytical void. Said another way, two wrongs do not make a right.”
The court further noted that the F.C.C. failed to respond to approximately 200 comments on the record by people who experienced illness or injury from electromagnetic radiation sickness.
“We are delighted that the court upheld the rule of law and found that the F.C.C. must provide a reasoned record of review for the thousands of pages of scientific evidence submitted by Environmental Health Trust and many other expert authorities in this precedent-setting case,” said Devra Davis, Ph.D., president of Environmental Health Trust. “No agency is above the law. The American people are well-served.”
Jerome Paulson, MD, former American Academy of Pediatrics Environmental Health Council Chair and now Professor Emeritus of Pediatrics and Environmental and Occupational Health at George Washington University School of Medicine and Health Sciences and Milken Institute School of Public Health, said that he was pleased that the court ruled “that the F.C.C. ignored decades of studies about the potential health harms of cell phone radiation and must adequately review this material before deciding new regulations of cell phones. It is very important that the court ruled that the F.C.C. must address the impacts of radiofrequency radiation on the health of children amassed since 1996.” The American Academy of Pediatrics’ submission to the F.C.C. called for a review of safety limits to protect children and pregnant women.
The appeals court ruling states:
“We grant the petitions in part and remand to the Commission. The Commission failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation unrelated to cancer.
“For the reasons given above, we grant the petitions in part and remand to the Commission to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radiofrequency radiation unrelated to cancer. It must, in particular, (i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines, (ii) address the impactsR.F.f R.F. radiation on children, the health implications of long-term exposuR.F. to R.F. radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and (iii) address the impR.F.ts of R.F. radiation on the environment. To be clear, we take no position in the scientific debate regarding the health and environmental eR.F.ects of R.F. radiation — we merely conclude that the Commission’s cursory analysis of material record evidence was insufficient as a matter of law.”
Washington, DC, August 16, 2021 (GLOBE NEWSWIRE) —
Children’s Health Defense (CHD) won its historic case against the Federal Communications Commission (F.C.C.), challenging the agency’s decision not to review its 1996 health and safety guidelines for wireless-based technologies, including 5G. Register here for CHD’s press conference startiP.T. at 10E.T.0 P.T./1:00 E.T. today.
. The court ruled that the F.C.C.’s failure to provide a reasoned explanation for its determination that its 199R.F.radiofrequency (R.F.) emission guidelines adequately protect the public against the harmful effects of exposure to radiation from 5G and wireless-based technologies unrelated to cancer renders the agency’s decision capricious, arbitrary and not evidence-based, in violation of the Administrative Procedures Act (A.P.A.). The court judgment remanded the decision to the Commission.
According to the court, analyU.S.provided by the U.S. Federal Drug Administration (F.D.A.), on which the F.C.C. relied for its decision, was also not evidence based, failing to meet the level of analysis required from a government agency. The court also dismissed the F.C.C.’s attempt to construe other agencies’ silence as consent.
“The court’s decision exposes the F.C.C. and F.D.A. as captive agencies that have abandoned their duty to protect public health in favor of a single-minded crusade to increase telecom industry profits,” said CHD Chairman and an attorney on the case Robert F. Kennedy, Jr.
Over a thousand comments and extensive evidence of harm from radiation well below the guidelines’ allowed levels were filed with the F.C.C. by scientists, medical organizations, municipalities, and individuals who have developed sickness from this technology. The petitioners filed 11,000 pages of such evidence. The court ruled that the F.C.C.’s failure to respond to them also renders the decision capricious and arbitrary.
Relying on the Petitioner’s brief, the court referenced evidence of Radiation Sickness (electro-sensitivity), neurological effects, oxidative stress (a causal mechanism of harm), effects on sperm and prenatal exposure, and blood-brain barrier damage. Additionally, it emphasized the F.C.C.’s failure to respond to evidence of the impact on children, especially regarding testing procedures for cell phones.
“The F.C.C. will finally have to confront the immense suffering that has already been caused by the F.C.C.’s and F.D.A.’s unprecedented fecklessness,” said attorney Dafna Tachover, CHD’s Director of its 5G and Wireless Harms Project who initiated and led the case for CHD. “Finally, the truth is out. I am hopeful that following this decision, the F.C.C. will finally act with the public interest in mind, warn the public to reduce exposure and halt any further deployment of wireless and 5G.”
The F.C.C. guidelines test for a 30-minute exposure from a single device and consider only heat effects on tissue. The court determined that the F.C.C. failed to respond to evidence showing that the guidelines fail to consider elements that may be crucial to the creation of non-thermal effects, including long-term exposure to R.F. radiation; nor did it take into account the effects of pulsation and modulation (two methods of imbuing radio waves with information).
Evidence related to the effects of technological developments that have occurred since 1996, including the ubiquity of wireless devices, Wi-Fi, and the emergence of “5G” technology, was also ignored by the F.C.C.
The court noted that the F.C.C. ultimately failed to acknowledge and respond to evidence concerning environmental harm. It quoted a letter from the U.S. Department of the Interior voicing concern that radiation from cell towers affects migratory birds and concluding that the F.C.C. guidelines are 30 years out of date.
Addressing the court’s decision, CHD’s lead attorney for the case, Scott McCollough, a telecommunications and administrative law attorney, said, “This is a historic win. Unfortunately, the F.C.C. will have to re-open the proceeding and for the first time meaningfully and responsibly confront the vast amount of scientific and medical evidence showing that current guidelines do not adequately protect health and the environment.”
In 2013, the F.C.C. opened a notice of inquiry requesting comment on whether the Commission should initiate a rulemaking to modify its 1996 guidelines. In Dec. 2019, the F.C.C. concluded that no rulemaking was necessary. Consequently, CHD filed the case on February 2, 2020, challenging the F.C.C. decision. A similar lawsuit was filed by the Environmental Health Trust. The cases were consolidated. CHD and E.H.T. filed joint briefs.