Communications Act v. ESA
Yesterday the Ninth Circuit issued its decision in American Bird Conservancy v. Federal Communications Commission. The case concerned whether the Communication Act's judicial review provision for challenges to an FCC order is exclusive, or whether an order can also be challenged under the ESA's citizen suit provision. The plaintiffs sought to overturn the FCC's granting of licenses for seven communications towers in Hawaii, on the grounds that the FCC failed to consult under Section 7 of the ESA over the effects of the towers on listed species and their critical habitat. The Ninth Circuit affirmed the district court's dismissal, holding that the plaintiffs' Section 7 challenge must be brought pursuant to the Communication Act's review provisions.