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Preserving Local Voices in Broadband Deployment

I’m not a telecommunications lawyer and don’t usually follow what’s happening at the Federal Communications Commission, but this week I am. At its March 22 meeting, the Commission is set to vote on rule changes that would remove the deployment of small wireless facilities from public participation and environmental review currently in place. NRDC opposes the changes.
What the FCC’s Order Does

The FCC published its Wireless Streamlining Report and Order on March 1, 2018. The Commission will vote on whether to approve the order on March 22.
The Order makes two changes to the FCC’s rules implementing the National Environmental Policy Act (NEPA). First, the Order excludes facilities placed in a floodplain as long as they are placed at least one foot above the base flood elevation from NEPA review. Previously, any facility located in a floodplain required at least an Environmental Assessment (EA) under NEPA. Second, the Order changes the rule requiring an EA to exclude: (1) the construction of mobile stations; and (2) small wireless facilities meeting certain criteria.
The Order also excludes the deployment of wireless communication facilities from the definition of “undertaking” under the National Historic Preservation Act (NHPA). Section 106 of the NHPA requires that “the head of any Federal department or independent agency” shall take into account the effect of any proposed undertaking on historic properties.

Why the FCC’s Order Is a Bad Idea
1. We can rapidly deploy broadband technology without shutting local voices out. The radio spectrum provides for numerous types of wireless communication. The FCC licenses this spectrum for various uses. Currently, a voracious demand for wireless access to the internet (aka “broadband”) dominates such uses. 

The next generation of wireless technology—5G—offers faster data speeds and more reliable service. Rather than large, widely-spaced towers, the new 5G technology requires distributed antenna services and small cell facilities sited much more closely together. 

While the smaller size of these facilities may limit their impacts on a community’s historic, cultural and natural resources, the dramatic increase in their numbers mean more sites will be affected and cumulative impacts could be significant. Involving local elected officials and community members in the planning decisions will help ensure wiser and less controversial decisions.

2. The FCC’s Order discourages collaboration. Numerous stakeholders worked diligently over many months and years to develop a system of review that preserves local voices while allowing rapid deployment of broadband facilities. Like NEPA, the NHPA provides for limited review where impacts are limited.  The FCC has developed Programmatic Agreements with the Advisory Council on Historic Preservation and others to provide for streamlined review of impacts on historic and cultural resources. The FCC tosses these collaborative efforts aside.  As a result, diverse stakeholders oppose the Order including: the National Congress of American Indians and the National League of Cities, as well as individual tribes and cities across the country.

3. The FCC’s Order is unlawful. The plain language of both NEPA and the NHPA applies these laws to the FCC licensing at issue here. Courts have consistently treated licensing as both a “major federal action” under NEPA and an “undertaking” under the NHPA. The Commission can adjust the amount of review based on the minimal impacts of a licensed activity, but it cannot avoid review all together.

While Congress has encouraged the rapid deployment of wireless technology, it has mandated that it be done in a way that protects the environment as well as historic and cultural resources. NRDC supports the rapid deployment of wireless technology especially to remote communities which currently lack service. Future progress, however, does not require that we forget our past or sacrifice a healthy, vibrant and secure environment.

Sharon Buccino is NRDC’s Land and Wildlife Program Director. Prior to joining NRDC, she practiced environmental and administrative law with a private firm in Washington, D.C. and worked for the Alaska Supreme Court.

 

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The Crenshaw/LAX Transit Corridor Project

When construction wraps up on Los Angeles’ Crenshaw/LAX Line in 2019, the highly anticipated light rail route will connect a key corridor of the city from Jefferson Park to El Segundo and add a long-sought rail connection from downtown to one of the busiest airports in the world.

Getting the project off the ground, however, was no small feat. Without the approval of “Measure R,” a half-cent sales tax approved by Los Angeles County voters in 2009 that provided a dedicated funding for twelve metro area transit projects, the city simply wouldn’t have had the money to proceed.

Early project planning and work on the Environmental Impact Statement (EIS) to construct the 8.5–mile line connecting two existing subway lines began in 2009.

During this review process, the Federal Transit Administration (FTA) and Los Angeles Metro officials jointly identified a rarely-used five-mile long freight rail line instead of building new tracks that would have disrupted several neighborhoods and proven far costlier.

That decision decreased project costs, saved time, and reduced disturbances for the nearby community by using an existing right-of-way while providing significant environmental benefits, economic development, and employment opportunities throughout Los Angeles County.

One of the visionary elements of National Environmental Policy Act (NEPA) EPA is its creation of broad opportunities for public participation in government decisions that affect their environment and local communities. Throughout the environmental review and planning process, local residents were continuously engaged in dialogue to ensure the project would be completed in an equitable, beneficial, and resourceful way that met the needs of local communities.

The Crenshaw/LAX Community Leadership Council (CLC) was established thereafter to provide feedback and carries out its work through topic-specific working groups, quarterly community meetings, bi-monthly construction meetings and special project collaborations with Metro staff and other community groups. Residents of Leimert Park Village, for example won the battle for their own station and for the train to run underground and out of site for its first three stops.

One of the Federal Transit Administration’s first projects piloting a new process that helped identify and mitigate project risks more efficiently, the project’s Environmental Impact Statement (EIS) was finalized less than two years later in 2011 and the Crenshaw/LAX light-rail alternative moved forward.

The Crenshaw/LAX transit corridor provides two key lessons. First, when projects are assigned dedicated sources of funding (e.g., Los Angeles’ Measure M) the NEPA review process is normally swift and rarely a major barrier to project completion. Project delays are more often than not the result of a combination of inadequate funding and local opposition. The NEPA review process and Environmental Impact Statement (EIS) were completed in less than two years.

Second, without the NEPA review process, tens of thousands of residents from Inglewood to El Segundo would have been able to weigh in and provide feedback on the Crenshaw/LAX corridor project that stood to affect their livelihood and quality of life. Similarly, without the NEPA review process, federal decision-makers might not have been able to identify that a rarely-used freight railroad could be utilized at a lower cost and with less disruption to local communities.

Scheduled for completion in 2019, the Crenshaw/LAX line will run from the Jefferson Park neighborhood in the north to El Segundo in the south with an estimated daily ridership of 16,000.

 

[1] “Final Environmental Impact Statement/Final Environmental Impact Report: Crenshaw/LAX Transit Corridor.” Federal Transit Association (FTA). August 31, 2011. Available at: 
http://media.metro.net/projects_studies/crenshaw/images/FEIS_FEIR/00_Cover_Table_of_Contents.pdf 

[2] “Record of Decision: Crenshaw/LAX Transit Corridor.” Federal Transit Association (FTA). Deceber 30, 2011. Available at: 
http://media.metro.net/projects_studies/crenshaw/images/20111230_CrenshawLAX_Record_of_Decision.pdf

[3] “About the Crenshaw/LAX Community Leadership Council (CLC).” Los Angeles County Metropolitan Transportation Authority. Available at: 
https://www.metro.net/projects/crenshaw_corridor/clc-about/

[4] The Crenshaw Line will open in 2019—how are residents feeling about it?” LA Curbed. September 22, 2017. Available at: 
https://la.curbed.com/2017/9/22/16347450/crenshaw-line-lax-leimert-park-metro-development

[5] “Community Organizations Shed Light On New Crenshaw District.” Los Angeles Sentinel. December 2, 2015. Available at: 

Community Organizations Shed Light On New Crenshaw District

 

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Trump Administration Waives Environmental Laws for New Mexico Border Wall

TUCSON (January 22, 2018) — The Trump administration today waived more than 30 environmental laws to speed construction of 20 miles of border wall in eastern New Mexico, the third time the “REAL ID” waiver has been used by the Trump administration.

The waiver is meant to allow construction of the New Mexico border wall section without having to comply with laws that protect clean air, clean water, public lands or endangered wildlife.

“The Trump administration is stopping at nothing to ram through this destructive border wall,” said Brian Segee, a senior attorney with the Center for Biological Diversity. “Trump’s divisive border wall is a humanitarian and environmental disaster, and it won’t do anything to stop illegal drug or human smuggling.”

Today’s action will allow the U.S. Department of Homeland Security to waive more than 30 environmental and other laws to convert 20 miles of vehicle barriers into bollard walls along the border west of El Paso, Texas, at the Santa Teresa Land Port of Entry. The Center is considering whether to challenge the waiver in court.

Last year the Center sued to challenge the Trump administration’s use of the waiver to build replacement walls south of San Diego. The lawsuit states that waiver authority expired years ago, it’s an unconstitutional delegation of power to the Department of Homeland Security, and the wall violates the Endangered Species Act.

A hearing on the case is scheduled Feb. 9 in U.S. District Court in San Diego. Similar lawsuits, filed by California Attorney General Xavier Becerra and other conservation groups, have been consolidated into one case before U.S. District Judge Gonzalo Curiel.

Beyond jeopardizing wildlife, endangered species and public lands, the U.S.-Mexico border wall is part of a larger strategy of ongoing border militarization that damages human rights, civil liberties, native lands, local businesses and international relations. The border wall impedes the natural migrations of people and wildlife that are essential to healthy diversity.

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Saving Puerto Rico’s El Yunque Rainforest

At just under 30,000 acres, El Yunque is our country’s smallest national forest and the United States’ only tropical rainforest in the national forest system. For Puertoricaños, El Yunque is a cultural jewel, largely as a result of its unique Taíno petroglyphs (rock engravings) made by their ancestors – the Taino people.

Puertoricaños were understandably upset when the Federal Highway Administration (FHWA) proposed to slice the preserve in half to rebuild a long-closed portion of Highway PR 191 (“Highway 191”) back in 1992.

Citing a ten-year-old Environmental Assessment (EA) dating back to 1982, FHWA determined that an EIS was not essential for deciding whether to reopen the road and issued a “Finding of No Significant Impact” (FONSI) to continue with the construction project. In failing to complete a full environmental review, FHWA sought to willfully ignore the proposal’s potential impacts on the island’s endangered species as well as the increased likelihood of rock slides.

When a court found that FHWA had circumvented the National Environmental Policy Act (NEPA) review process, the judge promptly ordered that a full environmental impact assessment should be carried out before any construction began. FHWA subsequently decided to drop the project rather than undertake the study and disclose the project’s full impacts on El Yunque rainforest.

Today, the rainforest remains intact and the drive around it to the new Forest Service recreation area on its far side takes a mere 25 minutes on existing roads.

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