FedSoc Blog

High Court Gives EPA Surprise Boost in Cell Phone Towers Case


by Publius
Posted May 23, 2013, 4:57 PM

According to Greewire:

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"EPA, like the FCC, is often in the position of trying to apply older, perhaps outdated statutory language to newer problems," Adler said.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. . . .

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.


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