The U.S. Circuit Court of Appeals for the District of Columbia ruled in February against the Federal Communications Commission (FCC) in a lawsuit aimed at reducing mortality to migratory birds caused by communication towers. The case focused on a permitting without public involvement or environmental review of 6,000 new cell towers along the Gulf Coast, reports the Wildlife Management Institute. At issue to the American Bird Conservancy and Forest Conservation Council, who brought the suit against the agency, are the millions of birds killed by towers every year.

Estimates made by the U.S. Fish and Wildlife Service (Service) of bird mortality caused by communication towers range from 5 million to 50 million per year. The estimates are not more refined because there are no requirements or established methodologies for regular site monitoring. Mortality is caused when birds collide with a tower or its guy wires. Collision rates increase during spring and fall migrations and particularly when there is low cloud cover, fog or inclement weather. It is believed that birds become disoriented by or are drawn to tower lights and radio frequencies and circle the tower, increasing the possibility of entanglement in the wires.

Nocturnally migrating neotropical birds are the most common victims. They include ovenbirds, various warblers and thrushes. Although tower kills may not be biologically significant for species that have stable populations, there are numerous species of conservation concern that may be seriously impacted, including northern waterthrush, northern parula and Connecticut warbler. Even at the lowest estimates of mortality, the most frequently killed species could experience losses exceeding 250,000 per year.

The court's split decision found that the FCC had violated the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA) by not adequately assessing the environmental impact of cell towers along the Gulf Coast. The FCC has given a categorical exclusion from environmental review for communications towers because towers "are deemed individually and cumulatively to have no significant effect on the quality of the human environment." The FCC then dismissed a request for a programmatic environmental impact statement (EIS) because of the lack of specific evidence about impacts to the environment and the lack of consensus regarding the impact of towers on migratory birds. The court ruled that this lack of definitive evidence and the FCC's "emphasis on ?conflicting studies' and ?sharply divergent views' regarding the number of birds killed confirms, rather than refutes" that towers may have significant environmental impact.

In addition, the majority opinion cited the FCC's refusal to consult with the Service to assess potential implications to species protected under the ESA. The lawsuit petitioners requested that the FCC formally consult with the Service regarding cumulative impacts of towers on threatened and endangered species. The court cited as inadequate the FCC's explanation of "no evidence of any synergies" among towers that "would cause them cumulatively to have significant environmental impacts that they do not have individually." According to the opinion, "short of the Petitioners conducting a programmatic EIS themselves it is unclear how Petitioners could produce sufficient evidence to meet this standard."

"We are very pleased by today's [February 19] ruling, which will require the FCC to assess the environmental impacts of towers," said Darin Schroeder, American Bird Conservancy's Executive Director of Conservation Advocacy. "Given the large number of bird deaths caused by towers, an environmental review is long overdue. This is a huge victory for migratory birds and the millions of Americans who love to see them each year."

While the lawsuit focused on permitting of towers in the Gulf region, the groups involved in the suit believe the decision will reach farther, and that all new permits for communications towers will be required to comply with the ESA and NEPA. (jas)