COMMENTARY | What the FCC Must Do to Comply with New NEPA Rules

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What the FCC Must Do to Comply with New NEPA Rules

On May 1, 2024, the White House Council on Environmental Quality (CEQ) published its final rule to amend its National Environmental Policy Act (NEPA) implementing regulations. These “Phase 2” rules represent a restoration of provisions altered by the Trump Administration’s 2020 NEPA rules as well as sweeping revisions to update the original 1978 NEPA rules. They also reflect 2023 Fiscal Responsibility Act amendments to NEPA and other permitting process reforms. Agencies have until July 2025 to make their procedures comport with the new rules.

Although CEQ had signed off on the Federal Communications Commission’s (FCC) original 1986 NEPA rules and amendments, its procedures failed to meet many of the requirements of either the 1978 CEQ rules or the Trump rules. To date, the FCC has had neither the personnel nor resources to comply with NEPA; to comply with 2024 CEQ rules, it must now have both, as well as a designated senior official and a chief engagement officer.

To meet current requirements, the FCC will have to significantly revamp its rules in several ways:

  • Major Federal Actions (MFAs): The FCC has historically ignored NEPA-triggering MFAs, such as cable and transmission line projects and distribution to industry of billions of dollars that support build-outs for wireline service or updated wireless service. Whether by design or ignorance, it never considered many actions as potential NEPA triggers, in part because, unlike most other agencies, it lacks a NEPA office and has limited capacity for environmental compliance. Even under the new, narrower definition of MFAs, the FCC will need to consider a multitude of actions as MFAs on an agency-wide basis. Doing so may lead to the FCC’s preparing its first environmental impact statement (EIS)–and to more transparency and accountability.
  • Categorical Exclusions (CEs): FCC’s NEPA rules create an unsupported and overly broad Categorical Exclusion (exemption from NEPA assessment) under which ALL actions, other than those that fall into a limited set of “extraordinary circumstances” (e.g., in a floodplain, affecting historic resources or endangered species) are categorically excluded. The combination of the presumption of a CE and a narrow set of effects considered means that, for example, satellite and submarine cable licensing and countless tower sitings do not trigger environmental review. Among other impacts, these particular activities could result in light pollution affecting dark skies and migratory birds, the destruction of underwater reefs, and aesthetic impacts, respectively.

By creating CEs up front to conform to the rule, the FCC will have to support its determination that a given action is categorically excluded and not rely on the presumption that it is excluded.

  • Effects: The FCC’s streamlined review process omits consideration of countless potential environmental effects, including visual effects and impacts to many environmentally sensitive areas. Instead, the FCC shifts the burden to the public to not only raise but also establish effects that it (or industry) had failed to consider under the narrow list of extraordinary circumstances. (It routinely dismisses those concerns as beyond the scope of the requisite environmental review).

With a revised rule structure, the FCC’s consideration of effects should have to comport with CEQ’s broad definition of effects, whether in its list of circumstances or raised by the public. The agency will also be required to consider cumulative effects and impacts to environmental justice communities.

  • Accessibility of Environmental Documents: Currently, with no oversight or tracking, the FCC delegates determinations of whether a project is categorically excluded to the industry proponents of the project. Industry’s environmental evaluation to determine that an environmental assessment (EA) is not required is neither submitted nor public. Under new rules, the FCC will have to review, track, and compile applicant-prepared documents.

Furthermore, the FCC will now have to vastly improve public access to environmental documents, by, for example, having a centralized website for environmental information and notice. This requirement could include making radio frequency (RF) studies of categorically excluded projects publicly available and posting and noticing EAs. The FCC will likely have to expand its opportunities for public comment and change its current adversarial model of commenting under which it deems comments “complaints” and adjudicates the claim—without making those documents or its decision readily accessible.  With a broader consideration of effects, more actions will likely require EAs. The FCC may also need to improve coordination with state and local review processes.

  • Mitigation: Currently, if CEs (with review done by industry) rely on mitigation measures, the FCC does not require documentation of the mitigation; it relies on an honor system. Accordingly, if an EA would be triggered but for mitigation, (e.g., by lowering RF levels to below limits, by raising structures in a flood plain, by reducing visual impacts to historic resources), the FCC generally does not require an EA.

Under new rules, an action that had relied on mitigation previously to avoid an EA will arguably now require an EA, and EAs that avoid EISs by relying on mitigation will now require the agency to explain and enforce the mitigation with a monitoring or compliance plan. CEs that rely on mitigation or involve extraordinary circumstances will also likely need to be documented and made publicly available.

If the FCC promulgates rules that comport with the CEQ rules and implements them properly, its environmental review process should be more inclusive and more robust, thereby giving the public a greater say in decisions that affect them.

Erica Rosenberg is an environmental attorney with Congressional, NGO, academia, and agency experience, she worked in the FCC’s Wireless Telecommunications Bureau for seven years until 2021. For more details, see: Rosenberg, E. (2022) Environmental Procedures at the FCC: A Case Study in Corporate Capture, Environment: Science and Policy for Sustainable Development.

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