United States of America
Air pollution, Standing, Wildlife, Declaratory Relief
In March 2009, the Connecticut Siting Council (Council) granted Cellco Partnership d/b/a Verizon Wireless (Cellco) a Certificate of Environmental Compatibility and Public Need for the Construction, Maintenance and Operation (Certificate) of a cellular tower (cell tower) at 188 Route 7, Falls Village, Connecticut. Dina Jaeger brought suit against Cellco and the Council to enjoin the Defendants and to prevent the building of the cell tower. In her complaint, Jaeger alleged violations of the International Migratory Bird Treaty, the Migratory Bird Treaty Act (MBTA), the Bald and Golden Eagle Protection Act (BGEPA), the Telecommunications Act (TCA), and the 10th and 14th Amendments to the U.S. Constitution. More specifically, Jaeger alleged that the construction and operation of the cell tower would result in harmful radio frequency emissions (RF emissions) causing impermissible harm to protected fowl and humans. Defendants moved to dismiss Jaeger's claims on various grounds, including that: (1) the Council was preempted from considering the environmental effects of radio-frequency emissions under the TCA, and therefore Jaeger's first through fourth claims for relief must fail; (3) that Jaeger lacked standing under the MBTA and BGEPA to bring her first two claims for relief; and (4) that Jaeger's fifth and sixth claims for relief fail as a matter of law. The Court granted the Defendants’ motions to dismiss, and denied Jaeger’s motion for summary judgment as moot. In reaching this conclusion, the Court focused primarily on the fact that the TCA preempts local and state regulation of cellular towers solely on the basis of RF emissions. Because Jaeger specifically sought a siting decision based on potentially adverse health effects of RF emissions, and because state and local authorities are prohibited from making siting decisions based on the alleged risks posed by RF emissions, claims one, two, three and four of Jaeger's complaint failed. In its analysis, the Court also determined that as a private plaintiff, Jaeger lacked standing to sue state or municipal agencies under the Administrative Procedure Act (APA) and therefore did not have the ability to enforce violations of the MBTA and BGEPA in this case. The Court further noted that Jaeger could not sustain a claim under Willoth because nothing in that case requires local and state governments to articulate a finding of a public need in approving cell tower applications. Finally, the Court noted that it was not required to reach the merits of Jaeger’s claim concerning section 16-50v because she failed to demonstrate that she presented a due process claim on which relief could be granted.