(See updated note below.) Below is the letter I sent my town to inform them of their responsibility to halt small cells applications until an environmental review is completed. I received from four sources the suggestion to do so, from persons in Massachusetts, California, Washington, and then Americans for Responsible Technology and 5G Crisis in NY.
However, several others (not ART) suggested sending the letter as a legal demand letter with the signature of an attorney, likely with a title such as "Notice to Cease and Desist from Processing and/or Approving Applications or Permits" and a direct order: "Therefore, the town of Holyoke is hereby to cease and desist from . . ." Sending such a demand letter with or without an attorney is up to the individual, but the assumption is then that there will be consequences if the town does not act. I did not feel such language was necessary for I trust my town to act.
Update, ART, mentioned above, sent a follow-up note recently suggesting that towns cannot force removal of existing small cell towers. I wondered about that aspect, but left it in since towns can consult with town lawyers and because I think that the law, which is in large part an interpretation rather than something set in stone, ought to evolve to protect the environment over and above financial concerns. The right of towns to demand a halt to operation until an environmental assessment has been completed - who is to say that the law prohibits such a request? Does the commerce clause truly trump the right of states to protect the environment? Should a contract that presents environmental risk be allowed to stand on the basis of the commerce clause? Or is this just a convenient interpretation allowing laws and regulations to cause us harm?
November 18, 2019
Dear Holyoke city councilors and City Solicitor:
Please confirm receipt.
I wanted to bring to your attention the city council's responsibilities regarding a recent court decision by the Washington DC Circuit Court of Appeals that vacates a recent FCC order to exempt "small cell" wireless installations, or "Close Proximity Microwave Radiation Antenna" (CPMRA) installations from the environmental review process required by the National Environmental Protection Act (NEPA).
As per the August 2019 ruling, any application for a "small cell" installation is incomplete if it does not include the required NEPA assessment. Please click on this link to see the ruling, where the judge states on page 7 the purpose of NEPA to "promote efforts which will eliminate damage to the environment and biosphere . . ."
All applications, as well as all existing facilities with previously considered "complete" applications, must be considered incomplete and tolled with a letter to the applicant stating that applications will remain incomplete until the the NEPA Environmental Assessment (EA) and/or Environmental Impact Statement (EIS) is completed.
While tolled, application processing and work regarding placement, construction, modification, or operation of these facilities must stop until substantial evidence certifies compliance with NEPA and the court ruling.
Please inform me of your actions to notify Verizon, Holyoke Gas & Electric, and other parties of the necessity to comply with this ruling. In addition, please consider sending me a copy of the current application process for small cells, or as is currently drafted, so that I can make suggestions.
Thank you for your consideration of this important matter.