Federal Judiciary

This One?s For the Birds

By Robert Loblaw

American Bird Conservancy v. FCC, 06-1165 (D.C. Cir., Feb 19, 2008)

In a significant environmental ruling, a divided panel of the D.C. Circuit has held that the Federal Communications Commission needs to pay more attention to the impact of communications towers on bird populations in the Gulf Coast. The bird-loving petitioners claim that communications towers in the Gulf Cost region are a particular problem for our feathered friends. They argue that the FCC should be taking a closer look at the problem, or at least complying with the laws that apply to the environmental impact of government activities.

The FCC refused to act on their petition on the ground that it was initiating a nationwide study of the effect on communications towers on birds. The petitioners filed suit, asking the D.C. Circuit to order the FCC to act on the Gulf Coast petition, and they got their wish: five days after oral argument, the FCC dismissed their petition, concluding that the issues raised therein were best addressed on a nationwide basis.

The petitioners then filed for review of that order, and the majority of the D.C. Circuit vacates most portions of the order. Although the Court agrees that the migratory bird issues are best handled on a nationwide basis, the majority holds that the FCC has not given an adequate reason for deferring the issues that may be specific to the Gulf Coast. Accordingly, the majority vacates the FCC?s dismissal order and remands so that the agency can address the remaining environmental claims on the merits. Judge Kavanaugh dissents, arguing that the petition should be dismissed as unripe since the FCC is in the process of considering these very issues in the context of its nationwide review.

Full post as published by Decision of the Day on February 19, 2008 (boomark / email).