United States Court of Appeals
      FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 27, 2004         Decided December 7, 2004

                       No. 03-1336

                     EMR NETWORK,
                       PETITIONER

                             v.

       FEDERAL COMMUNICATIONS COMMISSION AND
              UNITED STATES OF AMERICA,
                    RESPONDENTS


          On Petition for Review of an Order of the
           Federal Communications Commission


         Whitney North Seymour, Jr. argued the cause for
petitioner. With him on the brief was James R. Hobson.

        Nandan M. Joshi, Counsel, Federal Communications
Commission, argued the cause for respondents. With him on
the brief were R. Hewitt Pate, Assistant Attorney General,
U.S. Department of Justice, Catherine G. O'Sullivan and
Andrea Limmer, Attorneys, John A. Rogovin, General
Counsel, Federal Communications Commission, Daniel M.
Armstrong, Associate General Counsel, and Joel Marcus,
Counsel.

      Before: EDWARDS and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
                               2

      Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

          WILLIAMS, Senior Circuit Judge:        A variety of
facilities and products subject to Federal Communications
Commission regulation, including towers and other facilities
for radio, TV, and cell phone communications, and cell
phones themselves, transmit radio signals—and with them
radiofrequency (“RF”) radiation.        At certain levels RF
radiation may have adverse “thermal” health effects, caused
by heating human tissue.        The Commission has issued
regulatory guidelines based on its assessment of those effects.

          Non-thermal effects are also of potential concern, but
in its last review of its RF radiation guidelines the
Commission declined to tighten its restrictions on that
account. See Guidelines for Evaluating the Environmental
Effects of Radiofrequency Radiation, 12 FCC Rcd 13494,
13505, ¶ 31 (1997). Its decision, resting on the scientific
uncertainty about such effects and the costs of imposing
restrictions without a clearer showing of effects, was upheld
by the Second Circuit as within the Commission’s discretion.
See Cellular Phone Taskforce v. FCC, 205 F.3d 82, 90-92 (2d
Cir. 2000).

         The year after the Second Circuit decision, EMR
Network filed a petition asking the Commission to initiate an
inquiry on the need to revise the regulations to address non-
thermal effects. It relied principally on a letter from members
of the Radiofrequency Interagency Work Group, which is
made up of staff members from various federal agencies,
including the FCC, and which studies the effects of RF
radiation. Joint Appendix (“J.A.”) 23. The letter, which
didn’t represent the official policy or position of member
agencies, laid out a number of issues that the staff members
                              3


believed “need to be addressed to provide a strong and
credible rationale to support RF exposure guidelines.” J.A.
22. The letter expressly declined to assign priorities to the
issues; and in no way did it sound the tocsin for new
regulations. After the Office of Engineering & Technology
rejected EMR’s initial petition, but before the Commission
ruled on the issue, EMR submitted several academic studies
discussing potential health effects from exposure to RF
radiation at levels lower than are currently permissible
without additional environmental analysis. See 47 C.F.R.
§§ 1.1306, 1.1307. The Commission affirmed the dismissal of
EMR’s petition, concluding that there was “no compelling
evidence” that a rulemaking was warranted. EMR Network
Petition for Inquiry To Consider Amendment of Parts 1 and 2
Regarding Environmental Effects of Radiofrequency
Radiation, 18 FCC Rcd 16822, 16827, ¶ 12 (2003).

       EMR now petitions for review of the Commission’s
order, arguing principally that the Commission has violated its
duty under § 102 of the National Environmental Policy Act
(“NEPA”), 42 U.S.C. § 4332, to ensure that agencies consider
the environmental effects of their decisions. We affirm the
Commission’s order.

                            ***

       Section 102(2)(C) of NEPA requires a federal agency
to prepare an Environmental Impact Statement (“EIS”) as part
of any “proposals for legislation and other major Federal
actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C). In appropriate cases
an agency can instead prepare an Environmental Assessment,
followed by a Finding of No Significant Impact. See 40
C.F.R. §§ 1501.4(a)-(e); see also Dep’t of Transportation v.
Public Citizen, 124 S. Ct. 2204, 2209-10 (2004); Sierra Club
                              4


v. U.S. Dep’t of Transportation, 753 F.2d 120, 126 (D.C. Cir.
1985). Although the FCC had not prepared a formal EIS in
making its latest revisions to its RF radiation rules, Cellular
Phone Taskforce held that it had “functionally” satisfied
NEPA’s requirements “in form and substance.” 205 F.3d at
94-95.

         EMR accordingly focuses on agencies’ NEPA duties
when new evidence turns up after completion of an EIS (or
equivalent), citing Marsh v. Oregon Natural Resources
Council, 490 U.S. 360 (1989). Marsh considered a claim that
the Corps of Engineers had neglected its NEPA duties when,
one third of the way through construction of a dam, it
received information arguably suggesting that the dam would
cause more severe environmental harm than had been
supposed at the time the EIS had been completed and
construction approved. Regulations require an agency to
prepare a Supplemental Environmental Impact Statement
when “[t]here are significant new circumstances or
information relevant to environmental concerns and bearing
on the proposed action or its impacts,” 40 C.F.R.
§ 1502.9(c)(1)(ii), and the parties agreed that agencies were
required to take a “hard look” at evidence suggesting that this
standard had been met. Marsh, 490 U.S. at 370-74. The
Court rejected plaintiffs’ view that a reviewing court should
examine the evidence afresh, ruling instead that the usual
“arbitrary and capricious” standard should apply. Id. at 375-
78. EMR suggests that the current circumstances are a “fair
parallel” to those in Marsh. Petitioner’s Br. at 36.

        The FCC argues strenuously that it satisfied the “hard
look” requirement, but we need not resolve that issue. In
Norton v. Southern Utah Wilderness Alliance, 124 S. Ct. 2373
(2004), the Court declined to apply Marsh where the federal
action in question was approval of a land use plan. Unlike the
                               5


dam in Marsh, that “action” was complete when the new
information was received. Id. at 2384-85. Presumably later
actions pursuant to the plan might be significant enough to
require NEPA filings, just as some FCC actions relating to RF
radiation will need new environmental studies—including, for
example, the circumstances where the current regulations call
for such studies. But the regulations having been adopted,
there is at the moment no “ongoing” federal action, id. at
2385, and no duty to supplement the agency’s prior
environmental inquiries.

         Thus we review the Commission’s rejection of EMR’s
petition as we would agency rejection of any petition to
initiate a rulemaking. Such a decision is to be overturned if it
is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A); see
American Horse Protection Ass’n, Inc. v. Lyng, 812 F.2d 1, 4
(D.C. Cir. 1987).         As applied to refusals to initiate
rulemakings, this standard is “at the high end of the range” of
deference, see American Horse, 812 F.2d at 4-5, and an
agency refusal is overturned only in the “rarest and most
compelling of circumstances,” WWHT, Inc. v. FCC, 656 F.2d
807, 818 (D.C. Cir. 1981).

        EMR argues that the Commission’s refusal to
undertake a rulemaking constitutes an improper delegation of
its NEPA duties to private organizations and government
agencies. Indeed, in formulating its RF regulations, and in
deciding whether to re-open the issue, the Commission has
relied on other government agencies and non-governmental
expert organizations with specific expertise on the health
effects of RF radiation. See Guidelines for Evaluating the
Environmental Effects of Radiofrequency Radiation, 8 FCC
Rcd 2849, 2849, ¶ 1 (1993). EMR says this is improper,
citing cases requiring that a federal agency maintain
                               6


responsibility for the final conclusion of an EIS. See, e.g.,
Sierra Club v. Sigler, 695 F.2d 957, 962 n.3 (5th Cir. 1983)
(agency may not rubberstamp a consultant-prepared EIS);
Essex County Preservation Ass’n v. Campbell, 536 F.2d 956,
960 (1st Cir. 1976); Sierra Club v. Lynn, 502 F.2d 43, 58-59
(5th Cir. 1974); see also Communities Against Railway
Expansion, Inc. v. FAA, 355 F.3d 678, 686 (D.C. Cir. 2004).

         The Commission appears not to have abdicated its
responsibilities, but rather to have properly credited outside
experts. It found that the Institute of Electrical and Electronic
Engineers (a non-profit entity with members from
government, industry, and the academy), and the “federal
agencies and their personnel that participate in its committees
and subgroups,” are “composed of leading experts in this
area,” and that there was “no other comparable group of
experts with which to consult or upon which to rely.” 18 FCC
Rcd at 16826, ¶ 10. EMR does not contest these propositions.
In upholding the earlier decision not to tighten regulation on
account of non-thermal effects, the Second Circuit rejected a
claim that the Commission had improperly relied on expert
standard-setting organizations. Cellular Phone Taskforce,
205 F.3d at 90. Moreover, as the Environmental Protection
Agency is “the agency with primacy in evaluating
environmental impacts,” id. at 91, the FCC’s decision not to
leap in, at a time when the EPA (and other agencies) saw no
compelling case for action, appears to represent the sort of
priority-setting in the use of agency resources that is least
subject to second-guessing by courts. See, e.g., American
Horse, 812 F.2d at 4.              Finally, the Commission’s
determination to keep an eye on developments in other expert
agencies suggests that here, as in Cellular Phone Taskforce,
the Commission has an adequate “mechanism in place for
accommodating changes in scientific knowledge.” 205 F.3d
at 91.
                               7


         In what is at a minimum in “tension” with its
abdication claim, EMR asserts that the Commission has also
violated its duty to coordinate with other federal agencies to
facilitate NEPA’s environmental goals. See 40 C.F.R. §§
1500.5(b), 1501.1(b). In any event, the argument was not
presented to the Commission and therefore we may not
address it. 47 U.S.C. § 405; see also BDPCS, Inc. v. FCC,
351 F.3d 1177, 1182 (D.C. Cir. 2003).

         EMR’s submissions implicitly raise one of the
strongest potential bases for overturning an agency’s refusal
to initiate a rulemaking—that “a significant factual predicate
of a prior decision on the subject . . . has been removed.”
WWHT, 656 F.2d at 819; see also American Horse, 812 F.2d
at 5; Geller v. FCC, 610 F.2d 973, 980 (D.C. Cir. 1979).
EMR suggests that the studies it submitted (after the decision
of the Office of Engineering & Technology) show that
exposure to RF radiation is unsafe at levels too low to cause
thermal effects. But the articles submitted are nothing if not
tentative. One, for example, hypothesizes a mechanism by
which cell phone radiation might promote cancer, but also
notes that “[t]o date, there is limited scientific evidence of
health issues, and no mechanism by which mobile phone
radiation could influence cancer development.” Peter W.
French et al., Mobile Phones, Heat Shock Proteins and
Cancer, 67 Differentiation 93, 93 (2000). We find nothing in
those studies so strongly evidencing risk as to call into
question the Commission’s decision to maintain a stance of
what appears to be watchful waiting.

        In its reply brief EMR tries to shore up its factual case
by offering additional reports of possible non-thermal risks.
As the reports were not submitted to the Commission before it
acted, they cannot be a basis for overturning the order. 47
U.S.C. § 405; see also AT&T Wireless Services, Inc. v. FCC,
                              8


365 F.3d 1095, 1101 (D.C. Cir. 2004). The Commission’s
motion to strike one of these references is dismissed as moot.

         As the Commission’s decision not to initiate an
inquiry neither violated NEPA nor was otherwise an abuse of
discretion, the petition for review is

                                     Denied.
