Court Rules That Birds Must Be Protected From Tower Collisions

February 19, 2008 | Roger McEowen


A federal court has ruled that the Federal Communications Commission (FCC) must establish safeguards to prevent migratory birds from dying in collisions with telephone, radio, cellular and other communications towers along the Gulf Coast.  The Migratory Bird Treaty Act (MBTA) makes it illegal to “pursue, hunt, take, capture or kill” any migratory bird.  The plaintiffs, birdwatcher and conservations groups, claimed that the FCC unlawfully “takes” millions of migratory birds each year when the birds are killed in collisions with FCC-licensed towers – telephone, radio, cell and other communication towers.  Apparently, the birds aren’t able to fly in such a manner as to avoid flying into the towers.  The plaintiffs claimed that FCC rules and procedures for approving new towers failed to comport with the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA) and the MTBA.  The FCC’s regulations implementing NEPA exclude communication towers from the requirement to issue on environmental impact statement (EIS) because the FCC deemed the towers to have no significant effect on the quality of the human environment. 

The court determined that the FCC didn’t violate the MBTA, but failed to apply the proper NEPA standard, and failed to provide a reasoned explanation on consultation with the U.S. Fish and Wildlife Service under the ESA.  The court also reasoned that the FCC failed to provide meaningful notice of pending tower applications.  On the plaintiffs’ NEPA claim, because there was no dispute that the towers “may” have had a significant environmental impact, the FCC’s regulations required the completion of an environmental assessment before the FCC could refuse to prepare a programmatic environmental impact statement.  American Bird Conservancy, Inc., et al. v. Federal Communications Commission, et al., No. 06-1165, 2008 U.S. App. LEXIS 3437 (D.C. Cir. Feb. 19, 2008).