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Children’s Health Defense (CHD) and a group of Belmar, New Jersey, residents are seeking to join a lawsuit brought by Verizon against Monmouth County for denying the telecom giant’s applications to build nine 5G towers on a stretch of boardwalk on county land, in Belmar.
Belmar is a small borough in Monmouth County. The boardwalk, which runs along the Atlantic coast, is home to multiple endangered species.
CHD lawyers on Wednesday filed a motion to intervene in Verizon’s lawsuit. W. Scott McCollough, CHD’s chief litigator for the organization’s electromagnetic radiation (EMR) cases, filed the motion and a supporting memo and also requested oral argument.
CHD seeks to intervene in the lawsuit on behalf of its members in Monmouth County and other grassroots groups opposed to the towers to ensure that their interests — and not just those of Monmouth County — are protected.
If the motion is granted, CHD — and Belmar Against 5G Towers and several other individual Belmar CHD members — will be listed as intervening defendants in a lawsuit with national ramifications, McCollough said.
Verizon sued Monmouth County after county officials on Aug. 8 denied the company’s project application, citing, among other things, that Verizon had failed to submit a correct or complete application.
Upon rejection of its application, Verizon did not seek to submit a correct and complete application with the county. Instead, it sued the county in federal court, alleging Federal Communication Commission (FCC) rules preempted state and local laws about the project.
In its complaint, Verizon alleged the county did not support its decision with substantial evidence and asked the court for declaratory and injunctive relief so Verizon could begin installing its 5G towers along Belmar’s public rights-of-way area.
Verizon also contended that Monmouth County couldn’t stand in its way because the Telecommunications Act of 1996 preempts state and local regulation of environmental effects of wireless infrastructures’ radiofrequency (RF) radiation emissions, as long as the infrastructures “comply with the FCC’s regulations concerning such emissions.”
“Stated simply,” McCollough said, “Verizon claims the Federal Communication Commission’s rules and Telecommunications Act of 1996 preempt much of New Jersey and federal law on threatened and endangered species.”
The lawsuit highlights the issue of what occurs when a wireless company wants to put its infrastructure right next to an endangered species’ habitat.
“What happens if there’s threatened or endangered species right there?” McCollough said. “Who — as in what regulatory agency or set of local officials — gets to look at that? Who gets to decide whether there may be an impact on those species and can that be a basis for denying the company’s application?”
Many environmental health experts say the FCC’s regulations on RF radiation are decades out-of-date and fail to protect humans and non-human species from harm.
“I remain optimistic that the courts will make the necessary decisions to protect the integrity of Belmar’s coastline and its endangered species in compliance with federal and state laws.”
5G towers threaten species ‘at risk of disappearing forever’
For the last five years, Verizon has been trying to install at least nine 5G towers, each over 35 feet tall, along Belmar’s beach blocks — something that Sullivan Palus and other residents fiercely oppose.
Sullivan Palus said in a May 25 letter to the editor of The Coast Star, “As a coastal community, it is our civic and moral responsibility to be good stewards of our environment. Our beautiful town is home to a variety of unique bird species, many of which are endangered and at risk of disappearing forever.”
One such species, she wrote, is the least tern:
“The least tern is protected by the federal government under the Endangered Species Act. It is also protected by the state of New Jersey’s Endangered and Nongame Species Conservation Act which protects threatened and endangered species.
“This law prohibits the harm of the least tern and protects their habitat.”
Belmar residents should have voice in lawsuit, CHD argues
In its memo to the court, CHD argued that Belmar residents should be allowed to have a voice in the lawsuit as “intervenors.”
The memo stated:
“The existing parties in this action do not adequately represent [the] Intervenors’ interest in the action because the County is not the direct legal representative of any of the individual Intervenors.
“The defendant County is exercising its state-law police power and its own property interests, and its defense of this action will relate to those interests only, perhaps in derogation of its more general parens patriae powers.
“Intervenors benefitted from the County’s action but that outcome could be taken away through a settlement that potentially binds the Intervenors in some fashion.”
The memo added that the case concerns whether Verizon is subject to federal and state environmental laws and the county’s policies and regulations.
“If Verizon Wireless is immune [from these laws and regulations] there will be negative impacts on the Intervenors’ property and environmental interests,” the memo said.
Small changes can have ‘enormous effects on this precious ecosystem’
This is the second time Verizon has sued in an attempt to get its towers placed along Belmar’s beachfront.
However, soon after, Verizon learned that the land in question was under the jurisdiction of the county and that it would have to submit its application at the county, rather than city level.
By that time, concerned Belmar residents, including Caitlin Donovan, had alerted the county commissioners to the potential negative effects of the towers, New Jersey 101.5 reported.
Donovan, although not listed as an intervenor due to a potential conflict of interest as a borough council member, has been a key organizer for Belmar residents’ resistance to the 5G towers.
She told The Defender that she and other Belmar residents understand how even small changes can have “enormous effects on this precious ecosystem.”
Donovan grew up on Belmar’s beach and is raising her children there. “I honestly think that when you live near the ocean, it becomes part of you. … It’s an incredible privilege, but as a community, we understand that the privilege of living here comes with the responsibility of taking care of it.”
“We worry not only about how constructing these towers will affect how the beach looks, we worry how it will affect the endangered species that also call it home,” she said.
Donovan on April 25 began circulating a petition because she believed Belmar residents “deserved to have their voices heard about Verizon’s egregious plans.”
The petition has garnered more than 3,000 signatures with over 53,000 views, Donovan said. “I knew their plans weren’t popular,” she said, “but even I was taken aback by how passionately our town responded to my petition.”
Residents mobilize campaign to keep towers out
Donovan said, “Within about 2 weeks, along with Councilwomen Jodi Kinney and Maria Rondinaro, I held a meeting in Taylor Pavilion right on the beach, which was attended by over 250 people.”
She and other residents created a website and sent a slew of emails to their county commissioners and state legislators securing their support.
“In fact,” Donovan added, “Congressman Chris Smith (R-N.J.) sent a letter to Verizon expressing his support and telling them that they should work with us.”
“We’ve also lobbied Governor Phil Murphy for his support and held a second town meeting that was attended by elected officials from adjoining towns,” she said.
New Jersey 101.5 said that after Donovan on June 8 addressed the commission, County Commissioner Director Tom Arnone told her the county opposed the towers and that Verizon’s application was being carefully reviewed by County Attorney Mike Fitzgerald.
“We’re making sure they go through the whole process,” Arnone said. “Mike has reached out and let them know we are obviously against it and in support of you guys in Belmar.”
Verizon says FCC rules trump state environmental protection laws
In its lawsuit against the county, Verizon alleges the FCC shot clock rules apply to the environmental permitting done by New Jersey’s Department of Environmental Protection (NJDEP) via the Coastal Area Facility Review Act (CAFRA).
The FCC’s shot clock rules “establish time frames within which state and local governments must complete their reviews.” In this situation, the shot clock rules would mean that NJDEP has only 90 days to complete its review.
McCollough said that is not nearly enough time for an agency to do a thorough impact review, nor is it what CAFRA stipulates is to be carried out.
“If the FCC shot clock applies to CAFRA then so does the prohibition against regulating, as in setting limits, on RF emissions on the basis of environmental effects,” McCollough said.
“So Verizon is saying the DEP can’t regulate emissions even if they hurt listed species and its procedural rules — which require far more than 90 days — are preempted,” he added.
Local level is ‘where democracy happens’
Miriam Eckenfels-Garcia, director of the CHD’s EMR efforts, said this issue needs to be addressed. She said:
“This lawsuit is incredibly important because it goes back to the foundational question of how far federal preemption goes and how much state and local agencies are still allowed to protect their citizens and their environment.”
According to Eckenfels-Garcia, the state and local levels are “where democracy happens.” She added, “If you federalize this entire process, you take away people’s right to participate in deciding what occurs around them in their environment.”
McCollough agreed, adding that the case pushes the question, “Can the people, via county supervisors, exercise meaningful control over their environment?”
“This is a zoning issue,” he said, “and traditionally zonings have been done at the local level but, increasingly, companies are saying local people don’t have a say in what goes up in their town or neighborhood.”