EPA gets surprise boost from ruling on cell towers

A Supreme Court ruling this week on government regulation of new cellphone towers could be a boon for U.S. EPA and could shield the agency from lawsuits, environmental law experts say.

On Monday, the high court upheld a 2009 Federal Communications Commission rule that said local authorities have 150 days to process an application for a new tower or antenna in City of Arlington v. FCC.

Four cities -- San Antonio, San Diego, Los Angeles and Arlington, Texas -- challenged the rule, arguing the FCC was exceeding authority granted by a 1996 law. The agency's reading of the statute, they reasoned, impinged on their local zoning authority.

In a 6-3 decision, the Supreme Court, however, deferred to FCC's interpretation. Relying on a framework established in the 1984 Chevron v. Natural Resources Defense Council, Justice Antonin Scalia wrote for the majority that agencies have the authority to determine the scope of their own jurisdiction if the law is unclear.

Otherwise, Scalia wrote, nearly every agency action would have to be reviewed by judges.


"Judges should not waste their time in the mental acrobatics needed to decide whether an agency's interpretation of a statutory provision is 'jurisdictional' or 'nonjurisdictional,'" Scalia wrote.

The ruling is "unquestionably welcome news" for EPA because it is often faced with unclear statutory language, said Jonathan Adler, a law professor at Case Western Reserve University School of Law.

"EPA, like the FCC, is often in the position of trying to apply older, perhaps outdated statutory language to newer problems," Adler said. "In that context, it is often easy to find some degree of ambiguity as to whether the statute applies to a situation or a problem that wasn't on the minds of the drafters."

A clear example is the Clean Water Act, where EPA has been frequently challenged over whether certain streams qualify as "waters of the United States" under the law. The same applies to EPA's definitions of what constitutes a wetland.

"The issue is important in environmental law whenever you have a statute that defines the scope of an agency's authority," said Amanda Leiter of American University's Washington College of Law. "Like the Clean Water Act and navigable waters. What does 'navigable waters' mean?"

The ruling may be notable when viewed through that lens because EPA and the Army Corps of Engineers have a mixed record when it comes to defending their Clean Water Act jurisdiction in court. In 2006, the Supreme Court ruled against EPA's and the Army Corps' regulation of certain isolated wetlands in Michigan in Rapanos v. United States. The case involved developers who wanted to fill a wetland area and build condominiums and a shopping mall.

In a deeply divided decision, the court seemed unable to come to a consensus on a definition of "navigable waters" under the Clean Water Act. The court's four conservative justices took a narrow view, the liberal wing espoused a broader view and Justice Anthony Kennedy, the swing vote, was in the middle but voted to send the case back to lower court.

Adler said that since the Rapanos decision, EPA would like to assert broad authority on the issue. "This case strengthens their hand," he said.

Another example is the Resource Conservation and Recovery Act, or RCRA, which governs the disposal of hazardous and solid wastes. In many instances, said Justin Pidot of the Sturm College of Law at the University of Denver, it is left to EPA to define what, exactly, constitutes a solid waste.

"That's the type of case where this makes a big difference," Pidot said.

Pidot also said the Arlington decision effectively reinforces the status quo with regard to Chevron deference. If the court had ruled against the FCC, it could have opened the door to legal challenges of nearly every agency rule.

"It would be a whole other world," he said.

Strange bedfellows

Some court watchers took issue with the ruling, however, and pointed to the unique breakdown of how the justices voted.

Joining Scalia in the majority was Justice Clarence Thomas, another conservative, and the court's four liberal justices. Chief Justice John Roberts and Justice Samuel Alito -- two conservatives -- along with Kennedy, the usual swing vote, dissented.

Roberts, writing for the minority, condemned Scalia's opinion, saying his disagreement is "fundamental."

The chief justice went on to write that courts should reserve the right to review whether an agency has properly interpreted ambiguous statutory language.

"An agency cannot exercise interpretive authority until it has it," Roberts wrote. "The question whether an agency enjoys that authority must be decided by a court, without deference to the agency."

Roberts went on to say such a ruling grants too much power to regulatory agencies, which, in his view, already hold significant sway over economic, social and political activities.

"The collection of agencies housed outside the traditional executive departments, including the Federal Communications Commission, is routinely described as the 'headless fourth branch of government,' reflecting not only the scope of their authority but their practical independence," Roberts wrote.

Patrick Parenteau of the Vermont Law School said that while environmentalists often disagree with Roberts, the chief justice's concern over granting agencies too much deference cuts both ways in litigation. It means, he said, that courts defer when their rules are challenged by industry as too stringent, but also when they are challenged by advocates as too lax.

"These are valence issues," Parenteau said. "They cut one way or the other depending on who is wielding it."

Parenteau said Massachusetts v. EPA, the landmark 2007 global warming decision that forced EPA to regulate greenhouse gases as pollutants, may have turned out differently under the majority's reasoning. If the Supreme Court had granted deference in that case, EPA's policy that greenhouse gases don't constitute harmful pollutants under the Clean Air Act would still be in place.

"I find myself agreeing with Roberts that courts need to be the one to determine whether Congress has delegated the power to interpret specific question," Parenteau said. "The court should reserve the power."

Parenteau cautioned against overreacting but said Scalia's opinion is "going to give the agencies a hell of a lot of authority that I don't think we have seen before."

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