United States Court of Appeals, District of Columbia Circuit
United Keetoowah Band of Cherokee Indians in Oklahoma, individually and on behalf of all other Native American Indian Tribes and Tribal Organizations, et al., Petitioners
Federal Communications Commission and United States of America, Respondents National Association of Tribal Historic Preservation Officers, et al., Intervenors
March 15, 2019
Petitions for Review of an Order of the Federal
Stephen Díaz Gavin argued the cause for petitioners
United Keetoowah Band of Cherokee Indians in Oklahoma, et
al., and supporting intervenors. With him on the briefs were
J. Scott Sypolt, Joel D. Bertocchi, Joseph H. Webster, F.
Michael Willis, Andrew Jay Schwartzman, James T. Graves, and
Elizabeth S. Merritt. Angela J. Campbell entered an
Buccino argued the cause for petitioner Natural Resources
Defense Council and intervenor Edward B. Myers. With her on
the briefs was Edward B. Myers.
Natalie A. Landreth argued the cause for petitioners
Blackfeet Tribe, et al. With her on the briefs were Wesley J.
Furlong, Joel West Williams, Troy A. Eid, Jennifer H. Weddle,
and Heather D. Thompson.
M. Lewis, Associate General Counsel, Federal Communications
Commission, argued the cause for respondents. With him on the
brief were Jeffrey Bossert Clark, Assistant Attorney General,
U.S. Department of Justice, Eric A. Grant, Deputy Assistant
Attorney General, Andrew C. Mergen and Allen M. Brabender,
Attorneys, Thomas M. Johnson Jr., General Counsel, Federal
Communications Commission, David M. Gossett, Deputy General
Counsel, and C. Grey Pash Jr., Counsel. Jonathan H. Laskin
and Robert B. Nicholson, Attorneys, U.S. Department of
Justice, and Richard K. Welch, Deputy Associate General
Counsel, Federal Communications Commission, entered
Turner argued the cause for intervenors in support of
respondents. With him on the brief were Christopher J. Wright
and E. Austin Bonner.
Before: Tatel and Pillard, Circuit Judges, and Edwards,
Senior Circuit Judge.
PILLARD, CIRCUIT JUDGE:
wireless services, including telephone and other forms of
wireless data transmission, depend on facilities that
transmit their radio signals on bands of electromagnetic
spectrum. The Federal Communications Commission (FCC or
Commission) has exclusive control over the spectrum, and
wireless providers must obtain licenses from the FCC to
transmit. Wireless service in the United States has mostly
depended on large, "macrocell" radio towers to
transmit cell signal, but companies offering the next
generation of wireless service-known as 5G-are in the process
of shifting to transmission via hundreds of thousands of
densely spaced small wireless facilities, or "small
cells." As part of an effort to expedite the rollout of
5G service, the Commission has removed some regulatory
requirements for the construction of wireless facilities.
These petitions challenge one of the FCC's orders paring
back such regulations, In re Accelerating Wireless
Broadband Deployment by Removing Barriers to Infrastructure
Investment (Second Report & Order) (Order),
FCC 18-30, 2018 WL 1559856 (F.C.C.) (Mar. 30, 2018).
Order exempted most small cell construction from two
kinds of previously required review: historic-preservation
review under the National Historic Preservation Act (NHPA)
and environmental review under the National Environmental
Policy Act (NEPA). Together, these reviews assess the effects
of new construction on, among other things, sites of
religious and cultural importance to federally recognized
Indian Tribes. The Order also effectively reduced
Tribes' role in reviewing proposed construction of
macrocell towers and other wireless facilities that remain
subject to cultural and environmental review.
groups of petitioners challenge the Order as
violating the NHPA, NEPA, and the Administrative Procedure
Act on several grounds: that its elimination of
historic-preservation and environmental review of small cell
construction was arbitrary and capricious, an unjustified
policy reversal, and contrary to the NHPA and NEPA; that the
changes to Tribes' role in reviewing new construction was
arbitrary and capricious; that the Commission arbitrarily and
capriciously failed to engage in meaningful consultations
with Tribes in promulgating the Order; and that the
Order itself required NEPA review.
grant in part the petitions for review because the
Order does not justify the Commission's
determination that it was not in the public interest to
require review of small cell deployments. In particular, the
Commission failed to justify its confidence that small cell
deployments pose little to no cognizable religious, cultural,
or environmental risk, particularly given the vast number of
proposed deployments and the reality that the Order
will principally affect small cells that require new
construction. The Commission accordingly did not, pursuant to
its public interest authority, 47 U.S.C. § 319(d),
adequately address possible harms of deregulation and
benefits of environmental and historic-preservation review.
The Order's deregulation of small cells
is thus arbitrary and capricious. We do not reach the
alternative objections to the elimination of review on small
cell construction. We deny the petitions for review on the
Statutory and Regulatory Background
National Historic Preservation Act (NHPA)
enacted the NHPA to "foster conditions under which our
modern society and our historic property can exist in
productive harmony" and "contribute to the
preservation of nonfederally owned historic property and give
maximum encouragement to organizations and individuals
undertaking preservation by private means." 54 U.S.C.
§ 300101(1), (4). As part of that mission, NHPA's
Section 106 requires federal agencies to "take into
account the effect of" their "undertaking[s] on any
historic property." Id. § 306108.
"historic property" and "undertaking"
have specific meanings under the statute. Historic properties
include myriad monuments, buildings, and sites of historic
importance, including "[p]roperty of traditional
religious and cultural importance to an Indian tribe."
Id. §§ 302706, 300308. Insofar as Tribal
heritage is concerned, the Section 106 process requires
federal agencies to "consult with any Indian tribe . . .
that attaches religious and cultural significance to" a
historic property potentially affected by a federal
undertaking. Id. §§ 302706, 306102. To
count as "historic," such properties need not be on
Tribal land; in fact, they "are commonly located outside
Tribal lands and may include Tribal burial grounds, land
vistas, and other sites that Tribal Nations . . . regard as
sacred or otherwise culturally significant."
Order ¶ 97. Only a federal
"undertaking," not a state or purely private one,
triggers the Section 106 Tribal consultation process. A
federal "undertaking," as relevant here, is "a
project, activity, or program funded in whole or in part
under the direct or indirect jurisdiction of a Federal
agency, including . . . those requiring a Federal permit,
license, or approval." 54 U.S.C. § 300320. We have
construed the statute to mean that, for an action to be a
federal undertaking, "only a 'Federal permit,
license or approval' is required," not necessarily
federal funding. CTIA-Wireless Ass'n v. FCC, 466
F.3d 105, 112 (D.C. Cir. 2006).
Section 106 process requires that an agency "consider
the impacts of its undertaking" and consult various
parties, not that it necessarily "engage in any
particular preservation activities." Id. at 107
(quoting Davis v. Latschar, 202 F.3d 359, 370 (D.C.
Cir. 2000)). The NHPA established an independent agency, the
Advisory Council on Historic Preservation (Advisory Council),
54 U.S.C. § 304101, which is responsible for
promulgating regulations "to govern the implementation
of" Section 106, id. § 304108(a). Agencies
must consult with the Advisory Council, State Historic
Preservation Officers, and Tribal Historic Preservation
Officers, the last of which adopt the responsibilities of
State Historic Preservation Officers on Tribal lands. 54
U.S.C. §§ 302303, 302702; 36 C.F.R. §§
800.3(c), 800.16(v)-(w) (defining State and Tribal Historic
Advisory Council's regulations authorize the use of
alternatives to the ordinary Section 106 procedures, called
"programmatic agreements." 36 C.F.R. §
800.14(b). The Commission develops programmatic agreements in
consultation with the Advisory Council, Tribes, and other
interested parties, "to govern the implementation of a
particular program or the resolution of adverse effects from
certain complex project situations or multiple
undertakings" in certain circumstances, such as when
"effects on historic properties are similar and
repetitive" or "effects on historic properties
cannot be fully determined prior to approval of an
undertaking." Id. § 800.14(1)(i)-(ii).
Tribes' views must be taken into account where the
agreement "has the potential to affect historic
properties on tribal lands or historic properties of
religious and cultural significance to an Indian tribe."
Id. § 800.14(b)(1)(i), (f). For instance, the
Commission has consulted with Tribes to use programmatic
agreements to exclude from individualized review entire
categories of undertakings that are unlikely to affect
historic properties. See In re Nationwide Programmatic
Agreement Regarding the Section 106 [NHPA] Review
Process (Section 106 Agreement), 20 FCC Rcd.
1073, 1075 ¶ 2 (2004).
National Environmental Policy Act (NEPA)
enacted NEPA to "encourage productive and enjoyable
harmony between man and his environment" and
"promote efforts which will prevent or eliminate damage
to the environment and biosphere and stimulate the health and
welfare of man," among other purposes. 42 U.S.C. §
4321. Like the NHPA, NEPA mandates a review process that
"does not dictate particular decisional outcomes, but
'merely prohibits uninformed-rather than unwise-agency
action.'" Sierra Club v. U.S. Army Corps of
Eng'rs, 803 F.3d 31, 37 (D.C. Cir. 2015) (quoting
Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 351 (1989)).
"major Federal actions significantly affecting the
quality of the human environment" trigger environmental
review under NEPA, just as federal "undertakings"
trigger historic preservation review under the NHPA. 42
U.S.C. § 4332(C). Major federal actions "include
actions . . . which are potentially subject to Federal
control and responsibility." 40 C.F.R. § 1508.18.
Under the Commission's procedures implementing NEPA, if
an action may significantly affect the environment,
applicants must conduct a preliminary Environmental
Assessment to help the Commission determine whether "the
proposal will have a significant environmental impact upon
the quality of the human environment," and so perhaps
necessitate a more detailed Environmental Impact Statement.
47 C.F.R. § 1.1308; see also 40 C.F.R. §
1508.9. If, after reviewing the Environmental Assessment, the
Commission determines that the action will not have a
significant environmental impact, it will make a
"finding of no significant impact" and process the
application "without further documentation of
environmental effect." 47 C.F.R. § 1.1308(d).
also has an analogue to the NHPA's Advisory Council. In
enacting NEPA, Congress established the Council on
Environmental Quality, in the Executive Office of the
President, to oversee implementation of NEPA across the
entire federal government. 42 U.S.C. §§ 4342, 4344.
With the endorsement of the Council on Environmental Quality
and by following a series of mandated procedures, agencies
can establish "categorical exclusions" for federal
actions that require neither an Environmental Assessment nor
an Environmental Impact Statement. 40 C.F.R. § 1508.4.
Categorical exclusions are appropriate for "a category
of actions which do not individually or cumulatively have a
significant effect on the human environment and which have
been found to have no such effect in procedures adopted by a
Federal agency." Id. "Categorical
exclusions are not exemptions or waivers of NEPA review; they
are simply one type of NEPA review." Council on
Environmental Quality, Memorandum for Heads of Federal
Dep'ts and Agencies: Establishing, Applying &
Revising Categorical Exclusions under [NEPA]
(Categorical Exclusion Memo) 2 (2010).
Legal Framework for Wireless Infrastructure
Communications Act of 1934 established the FCC to make
available a "rapid, efficient . . . wire and radio
communication service with adequate facilities at reasonable
charges." 47 U.S.C. § 151. In licensing use of the
spectrum, the Commission is tasked with promoting "the
development and rapid deployment of new technologies,
products and services for the benefit of the public . . .
without administrative or judicial delays," id.
§ 309, and ...