Environmental Health Trust et al. v the Federal Communications Commission.

Note: Theodora Scarato, Director of the Wireless and EMF Program at Environmental Health Sciences, previously served as the Executive Director of the Environmental Health Trust, the lead petitioner in the case and she played a lead role in the legal proceedings of this case. She is also individually a petitioner in the case and remains involved in ongoing efforts to pressure the FCC to respond to the Court mandate

Background

The Environmental Protection Agency (EPA) had originally been tasked with setting and reviewing wireless safety limits starting in the 80s, but was later defunded and stripped of this authority. Thus, human exposure limits for wireless radiofrequency radiation (RFR) were set in 1996 by the Federal Communications Commission (FCC), the agency charged by Congress with regulating communications and setting safety standards. These have not been updated or fully reviewed by federal health and safety agencies since then. These limits were designed only to protect against the effects of short term exposure, not long term exposure. 

The FCC’s limits govern exposures from all wireless sources—including cell phones, Wi-Fi routers, 5G antennas, and cell towers—used throughout the U.S. 

In 2019, the FCC decided that its 1996 limits were still adequate to protect public health, and did not require any further evaluation.  In turn, several groups and individuals took legal action arguing that substantial scientific evidence showing health and environmental effects had been ignored.   

Summary of 2021 Court Ruling 

On August 13, 2021, the U.S. Court of Appeals for the D.C. Circuit found that the FCC had ignored scientific evidence and failed to provide a reasoned explanation for its decision that its wireless radiation exposure guidelines adequately protect the public against all the harmful effects of wireless radiation.  Because of this, the Court ruled that the FCC’s decision to keep its 1996 exposure limits was “arbitrary and capricious,” and it remanded the decision back to the FCC for proper review.

The Court’s decision stated that the FCC’s decision to maintain their decades-old  exposure rules was “arbitrary and capricious” in that it did not address record evidence indicating “non-cancer” effects, children’s vulnerability, environmental impacts and impacts from long term exposure. 

The Court ordered the FCC to provide a reasoned determination as to whether the record evidence justifies revising the 1996 RF limits—specifically directing the FCC to:

1. Explain its decision to retain outdated testing procedures for determining compliance of cell phones and wireless devices;
2. Address the impacts of RF radiation on:
   1. Children’s health and development,
   2. Long-term exposure effects,
   3. The ubiquity of wireless devices, and
   4. New technological developments since 1996;
3. And to evaluate the environmental impacts of RF radiation on wildlife and ecosystems.

What were the key arguments?

The case centered on how the FCC handled the thousands of pages of scientific evidence and expert submissions it received during its public inquiry. Under the Administrative Procedure Act (APA), federal agencies must review all relevant evidence, respond meaningfully to significant issues raised in the record, and provide a reasoned explanation for their decisions. The Court found the FCC failed this standard.

Since 1996, when the FCC established its exposure limits, the number of scientific reports reporting adverse effects has increased significantly.

Petitioners submitted over 11,000 pages of evidence—447 exhibits in 27 volumes— documenting science-based evidence submitted to the FCC reporting a broad range of health impacts linked to wireless exposures, including: 

• Brain cancer and breast cancer 
• Impacts to brain development 
• Headaches, memory problems and neurological effects
• Reproductive harm like sperm damage
• Synergistic effects with other environmental exposures
• People reporting illness from exposure. 
• Adverse impacts on trees, birds, bees, and other wildlife

The FCC had been provided extensive research and expert recommendations showing possible health and environmental harm, and yet it offered no explanation for why the non-cancer evidence – such as impacts to children, long-term exposure, reproduction, neurological effects, and environmental impacts — did not warrant further review or updated limits. Because of this, the Court ruled that the FCC’s decision to keep its 1996 exposure limits was “arbitrary and capricious,” and that the FCC broke administrative law by failing to address all of the evidence it was required to consider.

Timeline Leading Up To Lawsuit

1978: Comptroller Report: More Protection from Microwave Radiation Hazards Needed 

1980s: EPA had a robust research program and was tasked to develop wireless safety standards by the U.S. Science Advisory Board.

1984: EPA Report: Biological Effects Of Radio Frequency Radiation 

1986: EPA Report:The Radiofrequency Radiation Environment: Environmental Exposure Levels and RF Radiation Emitting Sources

1994: Government Accounting Office Report: Status of Research on the Safety of Cellular Telephones 

1995: EPA makes a presentation to FCC on the EPA timeline for its development of human exposure RF limits which would include both thermal effects and non thermal effects.

1996: EPA is fully defunded by Congress amid heavy lobbying for Telecom Act and halts all research on RF.

1996: The FCC adopts wireless radiation limits developed by industry-tied groups – based on short term heating -thermal- effects from high power exposures (based on studies of small animals exposed to high RF levels for under an hour).

1999: FDA nominates the National Toxicology Program (NTP) to conduct animal studies of long term exposure to cell phone radiation because of the lack of safety data on long-term exposure.

2001: Government Accounting Office Cell Phone Safety Report (GAO-01-545) and Press Conference with Senator Lieberman and Representative Markey CSPAN

2008: Congressional Hearing: U.S. House of Representatives, Committee on Oversight and Government Reform. Tumors and Cell Phone Use: What the Science Says CSPAN

2009: Senate Hearing: U.S. Senate, Committee on Appropriations, Subcommittee on Labor, Health and Human Services, Education, and Related Agencies. The health effects of cell phone use.  CSPAN

2011: Wireless RF classified as a “possible” Class 2B Carcinogen by International Agency for Research on Cancer.

2012: Government Accountability Report Exposure and Testing Requirements for Mobile Phones Should Be Reassessed recommends the regulations be reassessed to reflect current use patterns and recent science.

2013-2019: FCC opens an Inquiry asking if wireless radiation regulations should be updated and gets over 1000 submissions.

2018: NIH National Toxicology Program releases findings from their $30M animal study concluding “clear evidence” of cancer. The FDA rejects the study findings. 

2019: FCC decides not to update its 1996 wireless RF limits.

2020: Petitioners file case against the FCC regarding its decision.  2021:U.S. Court of Appeals, D.C Circuit ruled that the FCC decision not to change human exposure limits and regulations was “arbitrary and capricious.” 

What federal agencies submitted research reviews?

The FCC does not have any public health experts on staff. So the FCC asked other federal agencies for input on whether its 1996 wireless radiation limits were still adequate stating, “Since the Commission is not a health and safety agency, we defer to other organizations and agencies with respect to interpreting the biological research necessary to determine what levels are safe.”

However, none provided a report or evaluation of the FCC limits. The Court sharply criticized the FCC’s reliance on this lack of input from health and science agencies, writing that:

“The silence of other expert agencies, however, does not constitute a reasoned explanation for the Commission’s decision… Silence does not even indicate whether the expert agencies made any such determination, or whether they considered any of the evidence in the record.” 

— U.S. Court of Appeals, D.C. Circuit, 2021

• Food and Drug Administration (FDA): In an April 24, 2019 letter, the FDA stated in one paragraph in the letter it had “reviewed the totality of scientific evidence” and saw “no reason to change current standards.” The Court later found this statement “cursory” and “insufficient,” noting the FDA provided no data or analysis.
• Department of Labor (DOL): In 2015, the DOL said it had not conducted a comprehensive review of RF hazards and recommended the FCC seek input from the National Toxicology Program (NTP) and NIOSH.  
• Environmental Protection Agency (EPA): Sent a brief acknowledgment letter thanking the FCC for coordination but offered no safety assessment. When asked again for substantive input, the EPA did not respond.
• National Cancer Institute (NCI): Provided a short note stating it “appreciated” the FCC’s inquiry. Later communications on the record confirmed it had not conducted any safety review or issued opinions on RF radiation.
• National Toxicology Program (NTP): Also stated they “appreciated” the FCC’s Inquiry. The NTP did not submit their findings of “clear evidence” of cancer and DNA damage to the FCC, but the report was submitted by the public to the FCC.  

In summary, no federal agency provided an independent, science-based evaluation of the research on wireless radiation or its environmental impacts. The Court’s ruling exposed a major gap in national accountability, leaving the public and the environment without meaningful federal protection or review.

It is also notable that letters written by the Environmental Protection Agency (EPA) years ago were submitted by members of the public to substantiate the claim that the Federal Communications Commission’s (FCC) limits were designed to protect against short-term heating effects, but not against the impacts of long-term, repeated, or chronic exposure.

“The FCC’s current exposure guidelines are thermally based, and do not apply to chronic, nonthermal exposure situations. They are believed to protect against injury that may be caused by acute exposures that result in tissue heating or electric shock and burn. Federal health and safety agencies have not yet developed policies concerning possible risk from long-term, nonthermal exposures.”

— Norbert Hankin, Environmental Protection Agency, Center for Science and Risk Assessment, Radiation Protection Division

Why did the Court focus on children’s vulnerability? 

In 1996 when the limits were set, children did not use cell phones. The FCC was sent studies reporting children were more vulnerable as they absorb more RF radiation deeper into their more sensitive and still developing brains. Further, FCC testing is based on a large adult male model, not reflective of children’s smaller bodies and thinner skulls, which absorb radiation more deeply. 

The American Academy of Pediatrics (AAP) submitted multiple letters urging the FCC to reassess its limits to reflect modern device use and to protect pregnant women and children stating

“Children are disproportionately affected by environmental exposures, including cell phone radiation” and “current FCC standards do not account for the unique vulnerability and use patterns specific to pregnant women and children. It is essential that any new standard for cell phones or other wireless devices be based on protecting the youngest and most vulnerable populations to ensure they are safeguarded throughout their lifetimes.”

The need to protect the developing pregnancy was also repeatedly raised. Research submitted to the FCC documented impacts to the developing brain and nervous system. Experimental studies found that prenatal and early-life exposure can alter brain structure, neuron activity, and behavior, indicating potential risks to children’s cognitive and neurological development.

The FCC also sent appeals from public health groups and hundreds of scientists who signed the EMF Scientists Appeal and European Union 5G Appeal, as well as resolutions from medical associations worldwide calling for risk reduction measures, especially for children. 

However, the FCC dismissed their letters and appeals without explanation.

“The Commission’s failure to provide a reasoned or even relevant explanation of its position that RF radiation below the current limits does not cause health problems unrelated to cancer renders its explanation as to the effect of RF radiation on children arbitrary and capricious.”
— 2021 DC Circuit Decision in EHT et al. v. FCC

What environmental impacts were ignored? 

The FCC’s 1996 safety limits were designed only for humans, not for wildlife, trees, or plants. Numerous studies documenting harm to birds, bees, insects, trees, and plants were submitted to the FCC,  yet the FCC did not mention wildlife, animals or ecological impacts when they decided their limits were safe. 

Research submitted to the FCC record documented a wide range of ecological effects from wireless radiation, including disruptions to wildlife behavior and reproduction, growth changes in plants, damage to trees near antennas, and interference with insects’ navigation and survival. 

Reviews of ecological studies found that the majority showed biological impacts even at very low wireless radiation levels, indicating that current limits fail to protect. However, the FCC failed to mention environmental impacts in its decision. 

The Court cited a 2014 U.S. Department of the Interior letter warning that FCC standards are “based on thermal heating, a criterion now nearly 30 years out of date and inapplicable today,” and highlighting the need for U.S. research on radiation impacts to migratory birds and other species.

The Court concluded that the FCC had “completely failed” to address substantive evidence of environmental harm, leaving flora and fauna entirely unprotected under its current guidelines.

Why is cell phone testing an issue in this case? 

Before cell phones are approved for sale, manufacturers must submit each model for FCC radiation compliance testing. These tests determine how much wireless radiation a device emits when transmitting at full power. However, the FCC’s testing protocol developed in 1996 simulates use conditions that no longer match how people actually carry or use their phones.

Phones are tested on a large adult male mannequin filled with liquid meant to mimic human tissue. The phone is placed at a small distance (usually 5 to 15 millimeters) from the model’s surface, not in direct contact with the body. Petitioners argued that this outdated testing framework creates a false sense of safety, since studies from the French government found phones can exceed FCC wireless radiation limits when used in body-contact positions—such as in a pocket, tucked into clothing, or against the skin. As a result real-world use results in far higher exposures than the conditions under which phones are certified as “compliant.”

In fact, the FCC quietly tested some cell phones at 2mm and found they exceeded limits but never disclosed these results publicly or mentioned them in its decision record. Months later, when they concluded that human  exposure limits did not need to be updated, they also stated the test procedures did not need to be updated and that body-contact cell phone testing was unnecessary. The FCC’s  2 mm tests were discovered years later in a FOIA request. 

What Amicus Briefs were filed?

Four Amicus Briefs (friend-of-the-court filings) were submitted in support of the petitioners: Natural Resources Defense Council, a Declaration from Dr. Linda Birnbaum, former Director of the National Institute of Environmental Health Sciences, the Building Biology Institute and Dan and Catherine Kleiber Amicus. Each provided different perspectives on the public health and environmental implications of the FCC’s outdated limits:

The Natural Resources Defense Council (NRDC) Amicus

The Natural Resources Defense Council (NRDC), joined by mayors and local officials from Maryland, Massachusetts, Michigan, California, and Hawaii, argued that the FCC failed to fulfill its legal duty to conduct environmental review before reaffirming its 1996 limits. The brief detailed how the agency ignored substantial evidence showing harm to birds, bees, and plants, despite being legally required to consider environmental effects.

“Numerous scientific studies were available to the FCC if it had taken its environmental review responsibilities seriously,” the NRDC brief stated. “Instead, the FCC stuck its head in the sand and did not even mention many of these studies of potential environmental harm in its 2019 order.”

NRDC and several Native American tribes had previously won a similar case against the FCC in 2018, overturning an order that tried to eliminate environmental and historic reviews for new wireless infrastructure.-Read the Amicus of the Natural Resources Defense Council (NRDC)

A Declaration from Dr. Linda Birnbaum, former Director of the National Institute of Environmental Health Sciences in Amicus by Joe Sandri  

Dr. Birnbaum highlighted findings from the NTP’s $30 million animal study showing “clear evidence” of cancer and DNA damage at non-thermal exposure levels, directly contradicting the FCC’s assumption that only heating causes harm.

“The NTP findings demonstrate the potential for radiofrequency radiation to cause cancer in humans,” the declaration stated.

– Read the Declaration from Dr. Linda Birnbaum 

The Building Biology Institute Amicus

The Building Biology Institute, a nonprofit specializing in healthy building design and electromagnetic safety, presented extensive testimony from people harmed by wireless radiation exposure. The brief emphasized the growing prevalence of electromagnetic hypersensitivity (EHS) and the absence of biologically based standards to protect the public.

“Building Biologists often care for clients who are ill and desperately struggling simply to survive in their own homes from RFR exposure,” the brief stated. “The imposition of RFR contamination costs without fair compensation affects the entire population, but falls most cruelly on poor people, minorities, and the elderly, who have no medical, legal, or economic recourse at all.”– Read the Amicus of the Building Biology Institute: 

Dan and Catherine Kleiber Amicus 

The couple shared first-hand accounts of how they and their children have suffered health impacts linked to chronic wireless radiation exposure. Their brief highlighted numerous personal declarations in the FCC’s docket from others reporting similar injuries and argued that the FCC’s failure to update its limits violates human rights, the Americans with Disabilities Act (ADA), and the National Environmental Policy Act (NEPA).

They also criticized the FCC’s refusal to adopt biologically protective standards recommended by independent scientists. 

“In its recent decision, the FCC refused to adopt the BioInitiative Group’s recommended biologically-based population-protective standards stating “No device could reliably transmit any usable level of energy by today’s technological standards while meeting those limits.” This is akin to refusing to adopt biologically protective standards for lead in drinking water because it would prevent the use of lead service pipes.”

Read the Amicus of Dan and Catherine Kleiber 

What did the court conclude about cancer?

The Court did not rule that cell phones were safe, nor that they do not cause cancer. In fact, it made no scientific determination of any kind.   Instead, the Court found that the FCC met only the minimum legal standard for review regarding cancer – a very low bar—because the agency at least referenced why it dismissed cancer evidence by citing the FDA and ICNIRP (an industry-tied group).

However, the Court noted that this did not demonstrate a full or reasoned review of the science. The FCC’s reliance on the FDA’s brief, unsubstantiated statements, which the Court described as “cursory” and “insufficient”, barely satisfied the legal threshold required under the Administrative Procedure Act. 

In short, the Court accepted the FCC’s explanation on cancer only because the standard of review under administrative law is extremely limited, not because the evidence proved safety. The Court emphasized that the FCC failed to address all other health and environmental effects, including non-cancer biological harms, children’s vulnerability, and long-term exposure risks.

What did the court say about the FDA?

The Court found that the FCC improperly relied on unsubstantiated statements from the Food and Drug Administration (FDA) to justify keeping its 1996 wireless radiation limits. The FDA provided no analysis, reports, or evidence but stated the “totality of evidence” showed no reason to change the limits. The Court ruled that these statements were “conclusory” and “insufficient” and could not substitute for the reasoned explanation required by law.

The judges wrote that “the FDA’s conclusory statements still do not substitute for the reasoned explanation that the [Administrative Procedure Act] requires” and that the FCC erred in adopting the FDA’s position without more scrutiny.  

A subsequently released FDA literature review focused only on cell phones and cancer, ignoring research on other sources such as cell towers and Wi-Fi, and 5G. The FDA did not review studies investigating impacts to the brain, immune system, fertility, and endocrine systems.

Did the FCC appeal?

No. The FCC had the option to request a rehearing by the same panel, seek a full en banc review by all D.C. Circuit judges, or petition the U.S. Supreme Court to hear the case. It chose not to pursue any of these options.

Because the FCC did not appeal, the Court’s decision stands as final, and the agency remains under a legal mandate to provide a reasoned explanation for why its 1996 wireless radiation exposure limits should remain unchanged in light of the scientific evidence presented.

Who were petitioners in the case? 

Environmental Health Trust, Consumers for Safe Cell Phones, Elizabeth Barris and Theodora Scarato were represented by attorney Edward B. Myers . Children’s Health Defense, Michelle Hertz, Petra Brokken, Dr. David Carpenter, Dr. Toril Jelter, Dr. Paul Dart, Dr. Ann Lee, Virginia Farver, Jennifer Baran and Paul Stanley were represented by attorney Scott McCullough and Robert Kennedy Jr. and after consolidation with EHT’s case. Briefs were then jointly filed.  

The FCC was represented in-house by William J. Scher, Ashley Stocks Boizelle, Jacob M. Lewis and Richard Kiser Welch.  

Petitioner Theodora Scarato, now Director of the Wireless and EMF Program at Environmental Health Sciences, previously served as the Executive Director of the Environmental Health Trust and played a lead role in the legal proceedings, particularly regarding the scientific and policy aspects. She is also a petitioner in the case as an individual and remains deeply involved in ongoing efforts to get the FCC to address the issue. She continues to file scientific research and policy updates to the FCC alongside the major filings by Environmental Health Sciences. 

What is the bottom line on how this court decision impacts our health? 

Although the case was procedural, its implications for public health and safety are significant. Many people assume that federal wireless safety limits are regularly reviewed by independent scientists to ensure protection for the public. The Court’s ruling revealed that this assumption is incorrect. Therefore, FCC compliance cannot be equated with safety—particularly for children, long-term exposures, and environmental impacts that the FCC failed to review. 

The Court found that the FCC failed to provide a reasoned explanation for keeping its 1996 exposure limits, meaning the agency could not show that its rules are based on current science. As a result, FCC compliance cannot be equated with safety.

When people are told that a 5G antenna or cell tower is “FCC-compliant,” it is often implied that this means it is safe. However, the Court confirmed that the FCC’s 25-year-old limits were never re-evaluated for modern technologies or long-term exposures. Therefore, safety is not assured, especially regarding children’s unique vulnerability, cumulative exposure, and environmental impacts that the FCC failed to address.

• National Law Review, “Telecom Alert: DC Circuit Remands RF Rules” August 25, 2021
• Washington Spectator, “Federal Court Instructs FCC to Review Electromagnetic Radiation Standards” by Barbara Koeppel (PDF)