United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2007 Decided February 19, 2008
No. 06-1165
AMERICAN BIRD CONSERVANCY, INC.
AND FOREST CONSERVATION COUNCIL,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION,
RESPONDENT
CTIA - THE WIRELESS ASSOCIATION, ET AL.,
INTERVENORS
Petition for Review of an Order of the
Federal Communications Commission
Jennifer C. Chavez argued the cause for petitioner. With
her on the briefs was Stephen E. Roady.
Daniel M. Armstrong, Associate General Counsel, Federal
Communications Commission, argued the cause for respondent.
With him on the brief were Andrew C. Mergen and Jennifer L.
Scheller, Attorneys, U.S. Department of Justice, Samuel L.
Feder, General Counsel, Federal Communications Commission,
Joseph R. Palmore, Acting Deputy General Counsel, and Laurel
R. Bergold, Counsel.
2
Michael F. Altschul, Gary L. Phillips, Michael P. Goggin,
M. Robert Sutherland, Ian H. Gershengorn, Elaine J.
Goldenberg, Jane E. Mago, Jerianne Timmerman, Ann West
Bobeck, Michael T. Fitch, L Andrew Tollin, and Craig E.
Gilmore were on the brief for intervenors in support of
respondents.
Before: ROGERS, GARLAND and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed PER CURIAM.
Dissenting opinion filed by Circuit Judge KAVANAUGH.
PER CURIAM: The American Bird Conservancy and Forest
Conservation Council petition for review of an order by the
Commission denying in part and dismissing in part their petition
seeking protection of migratory birds from collisions with
communications towers in the Gulf Coast region. In Re Petition
by Forest Conservation Council, American Bird Conservancy
and Friends of the Earth for National Environmental Policy Act
Compliance (“Order”), 21 F.C.C.R. 4462 (2006). Their petition
claimed that Commission rules and procedures for approving
new towers failed to comport with the National Environmental
Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., the Endangered
Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and the
Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. § 701 et seq.
We vacate the Order because the Commission failed to apply
the proper NEPA standard, to provide a reasoned explanation on
consultation under the ESA, and to provide meaningful notice
of pending tower applications.
3
I.
Concerned about the effect of “tower kill” on migratory
birds in the Gulf Coast region of the United States, Petitioners,
on August 26, 2002, formally requested that the Commission,
among other things, (i) prepare an environmental impact
statement (“EIS”) under NEPA analyzing the effects of all past,
present, and reasonably foreseeable tower registrations on
migratory birds in the Gulf Coast region; (ii) initiate formal
consultation with the United States Fish and Wildlife Service
(“FWS”) pursuant to the ESA regarding the Gulf Coast towers’
impact on various bird species; and (iii) take steps in accordance
with the MBTA to reduce bird mortality at Gulf Coast tower
sites. Petitioners also requested that they be provided notice of
and an opportunity to comment on proposed Gulf Coast tower
registration applications before they are granted.
While the Gulf Coast petition was pending, the Commission
commenced a nationwide proceeding in a new docket. On
August 20, 2003, it issued a Notice of Inquiry to gather evidence
regarding communications towers’ impact on migratory birds
throughout the United States, and to determine whether to
change its current rules and processes to better protect migratory
birds. See In re Effects of Communications Towers on
Migratory Birds, Notice of Inquiry, 18 F.C.C.R. 16,938, 16,938
¶ 1 (2003). In response, the Commission received more than
250 comments expressing divergent views on the law and the
facts, including the frequency of fatal collisions and the overall
effect on migratory bird populations. Environmental groups
claimed that towers kill 4 million to 50 million birds per year,
see, e.g., American Bird Conservancy Comments at 2, WT
Docket No. 03-187 (Nov. 11, 2003), while industry groups
claimed that such claims are overstated, see, e.g., Cellular
Telecommunications & Internet Association and National
4
Association of Broadcasters Comments at 9, WT Docket No. 03-
187 (Nov. 12, 2003).
In April 2005, seeking to compel the Commission to act on
the Gulf Coast petition, Petitioners filed a petition for a writ of
mandamus in this court. Five days after oral argument, the
Commission issued the Order denying in part, dismissing in
part, and deferring in part the Gulf Coast petition. 21 F.C.C.R.
4,462. In dismissing the Gulf Coast petition, the Commission
stated that it would address aspects of the migratory bird issue
as part of a separate docket examining the issue on a nationwide
basis. Order, 21 F.C.C.R. at 4463 ¶ 1. The court thereafter
dismissed the mandamus case as moot. See In re Am. Bird
Conservancy, Inc., D.C. Cir. Docket No. 05-1112 (Apr. 19,
2006).
In November 2006, the Commission issued a notice of
proposed rulemaking in the nationwide proceeding in which it
sought further comment on the factual, legal, and policy issues
regarding the impact of communications towers on migratory
birds. In re Effects of Communications Towers on Migratory
Birds, Notice of Proposed Rulemaking (“NPRM”), 21 F.C.C.R.
13,241 (2006). The Commission asked generally whether the
impact warrants Commission action under the environmental
statutes, id. at 13,242 ¶ 1, and expressed uncertainty about the
underlying facts, seeking “further comment supported by
evidence regarding the number of migratory birds killed
annually by communications towers,” id. at 13,259 ¶ 36. It also
sought comments on “the legal framework governing the
Commission’s obligations in this area,” id. at 13,256 ¶ 32, and
on how to define significant environmental effects in this
context. Additionally, the Commission invited comment on
whether it should amend its environmental rules or take action
“to reduce the number of instances in which migratory birds
collide with communications towers.” Id. at 13,242 ¶ 1, 13,258
5
¶ 34. The Commission “tentatively” proposed that
communications towers use “medium intensity white strobe
lights” rather than red lights that may present a higher risk of
tower kill. Id. at 13,242-43 ¶ 3. The comment period in the
nationwide rulemaking proceeding closed in May 2007, but the
Commission has yet to take final action.
Meanwhile, in May 2006, Petitioners sought review of the
Order. See 47 U.S.C. § 403(a); 28 U.S.C. § 2342(1).
Petitioners have standing, for members of these organizations
engage in recreational birdwatching and research on birds in the
Gulf Coast region, see Lujan v. Defenders of Wildlife, 504 U.S.
555, 562-63 (1992), and we proceed to review the Order to
determine whether it was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law, 5 U.S.C. §
706(2)(A).1
1
Our dissenting colleague’s assertion that this case is unripe, Dis.
Op. at 1, rests on the mistaken assumption that the Commission has set
about reconsidering Petitioners’ precise requests through its
nationwide inquiry into the migratory bird issue. However, the NPRM
issued several months after the Order nowhere indicates that the
Commission is reconsidering the Gulf Coast petition calling for a
programmatic EIS under NEPA, formal consultation under the ESA,
or notice of pending tower registration applications. Instead, the
Commission sought comment on only (1) “the legal framework
governing the Commission’s obligations in this area, and in particular
the threshold necessary to demonstrate an environmental problem that
would authorize or require that the Commission take action,” NPRM,
21 F.C.C.R. at 13,256; (2) “particular steps the Commission might
take if there is probative evidence of a sufficient environmental effect
to warrant Commission action” such as lighting specifications, use of
guy wires, tower height, etc., id.; and (3) “whether to add an additional
criterion for requiring an [environmental assessment] to Section
1.1307(a) of our rules,” id. at 13,257. At best, the Commission’s
consideration of the “legal framework” may better inform it of the
6
II.
Petitioners contend that the MBTA, NEPA, and ESA
require changes to the Commission’s rules and procedures
relevant standards triggering its NEPA and ESA obligations,
suggesting that if Petitioners were to file a new petition in the future
their requests might receive a different response, but this hardly
amounts to a reconsideration of the Gulf Coast petition. In any event,
such “purely legal” issues are generally fit for review, Abbott
Laboratories v. Gardner, 387 U.S. 136, 149 (1967); Atlantic States
Legal Foundation v. EPA, 325 F.3d 281, 284 (D.C. Cir. 2003), and
agencies cannot avoid judicial review of their final actions merely
because they have opened another docket that may address some
related matters, see 5 U.S.C. § 706(1); Am. Paper Inst. v. EPA, 996
F.2d 346, 354 n.8 (D.C. Cir. 1993); Am. Petroleum Inst. v. EPA, 906
F.2d 729, 739-40 (D.C. Cir. 1990); see Telecomms. Research & Action
Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984). Neither point is lost on
the Commission: not only does its brief not invoke the ripeness
doctrine, but while the Commission explicitly deferred consideration
of Petitioners’ MBTA claim to the nationwide proceeding, it denied
and dismissed Petitioners’ ESA and NEPA claims.
The cases on which our colleague relies are inapposite.
Petitioners did not file a petition for Commission reconsideration, as
occurred in Melcher v. FCC, 134 F.3d 1143 (D.C. Cir. 1998), and
Wade v. FCC, 986 F.2d 1433 (D.C. Cir. 1993). Neither have
Petitioners filed a new petition on which the Commission has yet to
act, as was true in Friends of Keeseville, Inc. v. FERC, 859 F.2d 230,
236 (D.C. Cir. 1988). Nor, unlike in Toca Producers v. FERC, 411
F.3d 262 (D.C. Cir. 2005), was the Commission’s dismissal of the
Gulf Coast petition conditional, and, unlike the challenged plan in
Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726 (1998), the
Order has legal effect.
7
regarding communications towers in the Gulf Coast region. See
47 C.F.R. Part 17.
A.
The MBTA provides, with certain exceptions, that it shall
be unlawful “to pursue, hunt, take, capture, [or] kill” any
migratory bird. 16 U.S.C. § 703. The court has held that the
MBTA applies to federal agencies. Humane Soc’y of the United
States v. Glickman, 217 F.3d 882, 885-86 (D.C. Cir. 2000).
Petitioners contend that the Commission unlawfully “takes”
migratory birds when birds die in collisions with Commission-
licensed towers and sought to have the Commission comply
with the MBTA “by taking steps to reduce or eliminate
intentional or unintentional ‘takes’ of migratory birds.” Gulf
Coast Petition at 20.
The Commission stated in the Order that it was analyzing
the MBTA issue in the ongoing nationwide proceeding and
would therefore defer consideration of the MBTA issue to that
docket. Collisions of birds and towers occur throughout the
United States and the nationwide proceeding was designed to
obtain additional relevant information. We thus conclude that
the Commission acted reasonably in deferring consideration of
this issue. See Mobil Oil Exploration & Producing Se. Inc. v.
United Distrib. Cos., 498 U.S. 211, 230 (1991); see also FCC v.
Schreiber, 381 U.S. 279, 290-91 (1965).
B.
NEPA does not impose substantive environmental
mandates, but it does require federal agencies to establish
procedures to account for the environmental effects of certain
proposed actions. See Dep’t of Transp. v. Pub. Citizen, 541 U.S.
752, 756-57 (2004). In particular, for “major Federal actions
significantly affecting the quality of the human environment,”
agencies must prepare an EIS that examines, among other
8
things, the adverse environmental effects of a proposed action
and potential alternatives. 42 U.S.C. § 4332(2)(C). Petitioners
contend that NEPA requires the Commission to prepare a
programmatic EIS to assess the environmental impact of towers
in the Gulf Coast region.
The regulations issued by the Council on Environmental
Quality (“CEQ”) to implement NEPA include as a “major
Federal action” approvals by Executive Branch agencies of
specific projects “by permit or other regulatory decision.” 40
C.F.R. § 1508.18(b)(4). The regulations allow agencies to
divide their actions into three categories: those that ordinarily
require an EIS; those that require an initial, less rigorous
“environmental assessment” (“EA”) but not necessarily an EIS;
and those that are “categorically excluded” and require neither
an EIS nor an EA. Id. § 1507.3(b)(2). Agencies implementing
categorical exclusions “shall provide for extraordinary
circumstances in which a normally excluded action may have a
significant environmental effect.” Id. §§ 1508.4, 1507.3(b)(1).
CEQ regulations also provide that an agency should prepare a
programmatic EIS if actions are “connected,” “cumulative,” or
“similar,” such that their environmental effects are best
considered in a single impact statement. Id. § 1508.25(a); see
also Kleppe v. Sierra Club, 427 U.S. 390, 409-10 (1976);
Nevada v. Dep’t of Energy, 457 F.3d 78, 92 (D.C. Cir. 2006).
The Commission’s regulations implementing NEPA
categorically exclude communications towers from
environmental processing because towers “are deemed
individually and cumulatively to have no significant effect on
the quality of the human environment.” 47 C.F.R. § 1.1306(a).
However, a party may still allege that a “particular action,
otherwise categorically excluded, will have a significant
environmental effect” and can file a petition “setting forth in
detail the reasons justifying or circumstances necessitating
9
environmental considerations in the decision-making process.”
Id. § 1.1307(c). If the Commission determines that the proposed
action “may have a significant environmental impact,” then it
will require the applicant for a tower license to prepare an EA,
id., and also may obtain additional information, id. § 1.1308(b).
Upon analysis of the EA, the Commission must do one of two
things: (1) if the Commission determines that the proposed
action “would not have a significant impact, it will make a
finding of no significant impact” (“FONSI”), id. § 1.1308(d); (2)
if the EA indicates that the proposed action “will have a
significant effect upon the environment,” the Commission must
prepare an EIS, id. § 1.1314(a); see also 40 C.F.R. § 1508.3
(stating that the term “[a]ffecting” in NEPA means “will or may
have an effect on”).
The Commission gave two reasons for dismissing the
request for a programmatic EIS: (1) “the lack of specific
evidence . . . concerning the impact of towers on the human
environment,” and (2) “the lack of consensus among scientists
regarding the impact of communications towers on migratory
birds.” Order, 21 F.C.C.R. at 4466 ¶ 11. Neither reason is
sufficient to sustain the Commission’s refusal to take action
pursuant to NEPA, and together they demonstrate an apparent
misunderstanding of the nature of the obligation imposed by the
statute.
Most simply, the Order fails to follow the Commission’s
own regulations implementing NEPA. Under 47 C.F.R. §
1.1307(c), interested persons can request analysis under NEPA
of actions that are otherwise categorically excluded. Such
persons “shall submit to the Bureau responsible for processing
that action a written petition setting forth in detail the reasons
justifying or circumstances necessitating environmental
consideration in the decision-making process.” Id. The
Commission’s Bureau must then “review the petition and
10
consider the environmental concerns that have been raised.” Id.
“If the Bureau determines that the action may have a significant
environmental impact, the Bureau will require the applicant to
prepare an EA . . . , which will serve as the basis for the
determination to proceed with or terminate environmental
processing.” Id.
The reasons stated in the Order cannot, in light of the
petition under review, sustain the Commission’s refusal to
prepare an EIS without at least first requiring the preparation of
an EA. The Commission acknowledges that § 1.1307(c) applies
to the petition, see Appellee’s Br. at 25, and that the regulation
requires an EA when an action “may” have a significant
environmental effect, see NPRM, 21 F.C.C.R. at 13,247 (stating
that “an EA shall be required pursuant to Section 1.1307(c) or
(d) if the Bureau processing an otherwise categorically excluded
action finds, in response to a petition or on its own motion, that
the proposed construction may have a significant environmental
impact.”). The Order’s demand for definitive evidence of
significant effects – noting Petitioners’ failure to make a
“scientific showing that the population of any specific bird
species has decreased as a result of collisions” – plainly
contravenes the “may” standard. Order, 21 F.C.C.R. at 4466 ¶
9. Similarly, the Order’s suggestion that scientific consensus is
a precondition to NEPA action is inconsistent with both the
Commission’s regulation and with the statute. As the court has
admonished, “[i]t must be remembered that the basic thrust of
the agency’s responsibilities under NEPA is to predict the
environmental effects of a proposed action before the action is
taken and those effects fully known.” Scientists’ Inst. for Pub.
Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079, 1091-92
(D.C. Cir. 1973). A precondition of certainty before initiating
NEPA procedures would jeopardize NEPA’s purpose to ensure
that agencies consider environmental impacts before they act
rather than wait until it is too late.
11
Based on the record before the court, there is no real dispute
that towers “may” have significant environmental impact, and
thus that the § 1.1307(c) threshold has been met. Indeed, the
Order’s emphasis on “conflicting studies” and “sharply
divergent views” regarding the number of birds killed confirms,
rather than refutes, that towers may have the requisite effect.
Order, 21 F.C.C.R. at 4466 ¶ 10. Under such circumstances,
the Commission’s regulations mandate at least the completion
of an EA before the Commission may refuse to prepare a
programmatic EIS. Although Petitioners seek a programmatic
EIS, and not an EA, the Commission’s regulations allow it to
pursue an EA as an interim step, and such an EA will determine
what subsequent action NEPA requires. The agency may issue
a FONSI pursuant to 40 C.F.R. § 1508.13 and 47 C.F.R. §
1.1308(d) “[i]f on the basis of the [EA] the agency finds that the
proposed action will produce ‘no significant impact’ on the
environment.” Sierra Club v. Peterson, 717 F.2d 1409, 1412-13
(D.C. Cir. 1983); see also, e.g., Nat’l Audubon Soc’y v. Hester,
801 F.2d, 405, 407 (D.C. Cir. 1986); Sierra Club v. U.S. Dep’t
of Transp., 753 F.2d 120, 126 n.3 (D.C. Cir. 1985); Cabinet
Mountains Wilderness/Scotchman’s Peak Grizzly Bears v.
Peterson, 685 F.2d 678, 682 (D.C. Cir. 1982). But if “any
‘significant’ environmental impacts might result from the
proposed agency action, then an EIS must be prepared before
the action is taken.” Sierra Club, 717 F.2d at 1415 (emphasis in
original); see also, e.g., Town of Cave Creek, Ariz. v. FAA, 325
F.3d 320, 327 (D.C. Cir. 2003); Grand Canyon Trust v. FAA,
290 F.3d 339, 340 (D.C. Cir. 2002); Blue Mountains
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th
Cir. 1998); North Carolina v. FAA, 957 F.2d 1125, 1131 (4th
Cir. 1992); Citizen Advocates for Responsible Expansion, Inc.
v. Dole, 770 F.2d 423, 432-33 (5th Cir. 1985).
We vacate the NEPA part of the Order. On remand the
Commission shall address Petitioners’ request that it conduct a
12
programmatic EIS based on a threshold for NEPA analysis that
is less stringent than the Order reflects. Conflicting data points
do not forestall NEPA’s mandate. Pursuant to its own
regulations, the Commission may commence such analysis
through the preparation of an EA.
C.
Section 7 of the ESA requires federal agencies to ensure
that any “action” they authorize, fund, or carry out is not likely
to “jeopardize the continued existence of any endangered [] or
threatened species,” or result in the destruction or adverse
modification of critical habitats. 16 U.S.C. § 1536(a)(2).
Regulations promulgated by the Endangered Species Committee
(which is comprised of several federal agencies) define “action”
to mean “all activities or programs of any kind,” including “the
granting of licenses.” 50 C.F.R. § 402.02. They also provide
that each Federal agency “shall confer” with the FWS “on any
action which is likely to jeopardize the continued existence of
any proposed species or result in the destruction or adverse
modification of proposed critical habitat.” Id. § 402.10; see also
16 U.S.C. § 1536(a)(4). If an agency determines that an action
“may affect” endangered or threatened species or critical
habitats, the agency must initiate formal consultation with the
[FWS], at least unless preparation of a biological assessment or
participation in informal consultation indicates that a proposed
action is “not likely” to have an adverse affect. 50 C.F.R.
§ 402.14(a)-(b). Petitioners requested that the Commission
formally consult with the FWS regarding the cumulative effects
of towers on endangered and threatened species.
The Commission declined to consult with the FWS, stating
that there is “no evidence of any synergies” among towers that
“would cause them cumulatively to have significant
environmental impacts that they do not have individually.”
Order, 21 F.C.C.R. at 4,467 ¶ 14. The Commission’s reliance
13
on a lack of “synergies” was not further explained in the Order.
This explanation was inadequate. The Commission has not
described what kind of showing in the ESA context could
demonstrate sufficient environmental effects to justify the
“programmatic consultation” that Petitioners seek. Short of
Petitioners conducting a programmatic EIS themselves, it is
unclear how Petitioners could produce sufficient evidence to
meet this standard.
We vacate the ESA part of the Order and remand that issue.
D.
The CEQ regulations require agencies to make “diligent
efforts to involve the public in preparing and implementing their
NEPA procedures.” 40 C.F.R. § 1506.6(a). Commission
regulations permit parties to file petitions for EAs to be
conducted for the otherwise categorically excluded tower
applications. 47 C.F.R. § 1.1307(c). Petitioners requested that
the Commission provide adequate public notice of proposed
individual tower applications so that they may seek
environmental review before the Commission acts.
The Catch-22 for the interested parties who wish to file
such a petition is that the Commission provides public notice of
individual tower applications only after approving them.
Although the Commission “enjoys wide discretion in fashioning
its own procedures,” City of Angels Broadcasting, Inc. v. FCC,
745 F.2d 656, 664 (D.C. Cir. 1984), it cannot evade its duty to
comply with the CEQ regulations and its own regulations
allowing challenges to tower applications by providing the
public with a hollow opportunity to participate in NEPA
procedures. Interested persons cannot request an EA for actions
they do not know about, much less for actions already
completed. It was suggested during oral argument that a simple
solution would be for the Commission to update its website
14
when it receives individual tower applications; Petitioners stated
that such a step would address their NEPA notice claim.
We vacate the notice part of the Order and remand for the
Commission to determine how it will provide notice of pending
tower applications that will ensure meaningful public
involvement in implementing NEPA procedures.
Accordingly, except as regards deferral of the MBTA issue,
we vacate the Order and remand the case to the Commission to
comply with NEPA and ESA. The results of the NPRM may
inform the Commission’s decision on remand, but the
nationwide proceeding neither incorporates nor supplants the
Gulf Coast petition. The Commission has amassed a wealth of
information during the past five years, including reports from
other federal agencies such as the FWS, a report from its own
consultant in 2004, as well as a second round of comments from
interested persons. Guided by this opinion, the Commission
should be able to proceed with dispatch on remand to resolve the
Gulf Coast petition, whether separately or as part of the
nationwide proceeding.
KAVANAUGH, Circuit Judge, dissenting: Petitioners
American Bird Conservancy and Forest Conservation Council
are concerned about the effects of communications towers on
birds. Here, they challenge an FCC order that addressed the
requirements of federal environmental laws for
communications towers in the Gulf Coast region of the United
States. I would dismiss their lawsuit as unripe because the
FCC, in a separate rulemaking proceeding, is re-examining
these environmental issues and considering the effects of
communications towers on birds nationwide, including in the
Gulf Coast region. The Commission has gathered
considerable factual information and input from interested
parties – including from the petitioners in this case – and the
FCC’s counsel represented to the Court that the Commission
expects to act soon.
This case is thus closely analogous to a situation in which
a petitioner comes to court to challenge an agency order while
the agency is still considering a petition for reconsideration.
We routinely dismiss such cases. See, e.g., Melcher v. FCC,
134 F.3d 1143, 1163 (D.C. Cir. 1998) (“If a party determines
to seek reconsideration of an agency ruling, it is a pointless
waste of judicial energy for the court to process any petition
for review before the agency has acted on the request for
reconsideration.”) (internal quotation marks omitted); Wade v.
FCC, 986 F.2d 1433, 1434 (D.C. Cir. 1993) (“The danger of
wasted judicial effort that attends the simultaneous exercise of
judicial and agency jurisdiction arises whether a party seeks
agency reconsideration before, simultaneous with, or after
filing an appeal or petition for judicial review.”) (citation
omitted).
Even if the Gulf Coast order in isolation is technically
final, our ripeness precedents suggest that, at least in these
unusual circumstances, we should allow the ongoing
administrative process to run its course before we intervene.
See Devia v. NRC, 492 F.3d 421, 424 (D.C. Cir. 2007)
2
(“Article III courts should not make decisions unless they
have to.”) (internal quotation marks omitted); Toca Producers
v. FERC, 411 F.3d 262, 266 (D.C. Cir. 2005) (although the
challenged orders appeared to be “final agency action within
the meaning of the Administrative Procedure Act,” orders
were not “sufficiently final” for judicial review because
agency’s action in separate docket could “resolv[e] the issues
raised” in the appeal) (internal quotation marks omitted);
Friends of Keeseville, Inc. v. FERC, 859 F.2d 230, 236 (D.C.
Cir. 1988) (court “may properly give weight to the interests in
judicial economy that are furthered by the avoidance of
unnecessary adjudication”); cf. Nat’l Treasury Employees
Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996)
(describing the “usually unspoken element of the rationale
underlying the ripeness doctrine: If we do not decide it now,
we may never need to. Not only does this rationale protect
the expenditure of judicial resources, but it comports with our
theoretical role as the governmental branch of last resort.”).
Dismissing this case on ripeness grounds would serve the
interests of judicial economy, permit the Executive Branch to
carefully re-examine and resolve environmental issues related
to communications towers and birds on a nationwide basis,
and impose minimal hardship on the petitioners who are
themselves participating in the nationwide rulemaking
proceeding. See Ohio Forestry Ass’n, Inc. v. Sierra Club, 523
U.S. 726, 733-35 (1998) (further administrative or judicial
proceedings are not sufficient hardship to justify review in a
case that would otherwise be unripe); AT&T Corp. v. FCC,
349 F.3d 692, 700 (D.C. Cir. 2003) (“If the only hardship a
claimant will endure as a result of delaying consideration of
the disputed issue is the burden of having to engage in another
suit, this will not suffice to overcome an agency’s challenge
to ripeness.”) (internal quotation marks and alterations
omitted); cf. Friends of Keeseville, 859 F.2d at 237
3
(petitioner’s present injury is less significant when judicial
relief “is deferred but not denied”).
As a matter of prudence and judicial restraint, I therefore
would dismiss this case as unripe. I respectfully dissent.1
1
The majority opinion quotes the FCC’s NEPA regulations, which
have been in place for 20 years and were coordinated with the
Council on Environmental Quality; these regulations require the
Commission to prepare an EIS when a proposed action “will have”
a significant environmental impact. Maj. Op. at 9 (quoting 47
C.F.R. § 1.1314(a)); see also 47 C.F.R. § 1.1308(c). I do not
interpret the majority opinion to suggest (much less hold) that the
“will have” standard set forth in the FCC regulations is invalid. See
generally Nat’l Audubon Soc’y v. Hester, 801 F.2d 405, 407 (D.C.
Cir. 1986) (“will significantly affect”); Sierra Club v. Dep’t of
Transp., 753 F.2d 120, 126 (D.C. Cir. 1985) (“will significantly
affect”); Sierra Club v. Peterson, 717 F.2d 1409, 1412 (D.C. Cir.
1983) (“will significantly affect”); Cabinet Mountains
Wilderness/Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d
678, 682 (D.C. Cir. 1982) (EIS required “when significant
environmental impacts will occur”); Envtl. Def. Fund, Inc. v. EPA,
489 F.2d 1247, 1255 (D.C. Cir. 1973) (“will have a significant
effect”).