WASHINGTON—The American Bird Conservancy and the Forest Conservation Council urged a federal appeals court Thursday morning to order the Federal Communications Commission to take action to protect migratory birds from the ill-effects of tower siting.
“Three-and-a-half years is an unreasonable delay,” Jennifer Chavez told the U.S. Court of Appeals for the District of Columbia Circuit. Chavez was speaking on behalf of the American Bird Conservancy and the Forest Conservation Council. “The FCC has taken no action to protect migratory birds.”
The argument Thursday was whether the D.C. court would issue a “writ of mandamus” to the FCC ordering it to act. Daniel Armstrong, arguing on behalf of the FCC, said a writ of mandamus would be “drastic.”
The FCC has said it will act next week on the ABC/FCC petition, but Armstrong acknowledged that “three members of the four-member commission have not agreed on how to deal with the staff recommendation.”
The ABC/FCC petition, issued in 2002, argues the commission had improperly licensed 6,000 towers because the impact to migratory birds was not considered.
The towers in question are all located in the Gulf Coast region, a swath of land 100-miles wide from Texas to Florida. The area is the first land mass that migratory birds hit after crossing the Gulf of Mexico from Central and South America, said the groups.
The environmentalists are upset because when the FCC designed rules to comply with the National Environmental Policy Act, it did not include migratory bird impacts as an issue that would trigger an environmental assessment. Since the towers are “categorically excluded” from the NEPA process, the towers are approved the day they are received.
The FCC under former chairman Michael Powell tried to solve the problem by agreeing to study the issue and working with the Federal Aviation Administration and the U.S. Fish & Wildlife Service, but the groups want the law changed and the FCC has not acted to do so.
During the court hearing Thursday, Chavez disagreed with Judge Thomas Griffith as to whether there is a dispute regarding the impact towers have on migratory birds. Chavez said there was no dispute but Griffith said that scientists don’t agree.
The D.C. Circuit has previously rejected ABC/FCC’s argument that an environmental assessment is required before more towers can be placed in the path of migratory birds.
