Opinion analysis: Reason-giving, federalism, and a partial win for cell towers
on Jan 16, 2015 at 9:31 am
Wednesday’s six-to-three decision in T-Mobile South v. City of Roswell dialed up a partial win for wireless carriers, on somewhat unexpected grounds. The relevant provision of the Telecommunications Act of 1996 requires that local governments’ denials of requests to site cell towers “shall be in writing and supported by substantial evidence contained in a written record.” T-Mobile South’s primary argument had been that this provision requires local governments to specify their reasons for a denial in the same document that denies the application, rather than leaving parties to discern those reasons from the minutes of a city council meeting where the vote was taken. The Court declined to go this far, but it nevertheless concluded that the City of Roswell had run afoul of the Act. Adopting a compromise resolution that the Solicitor General had proposed, the Court held that the Act does not prescribe the form a locality’s reasons must take, but it does require the reasons to appear in a written record “essentially contemporaneously” with its written denial. The city failed that test here by waiting over three weeks to finalize its minutes. Although the practical impact of the decision is limited, it holds intrigue for its explanation of administrative law concepts, its approach to federalism, and its unusual lineup – Chief Justice Roberts and Justice Ginsburg dissented, with Justice Thomas joining their dissent in part.
The Court’s opinion, authored by Justice Sonia Sotomayor, has three prongs: first, the statute does require localities to provide reasons for denials; second, those reasons need not be in any particular form; and third, the reasons must be “essentially contemporaneous” with the denial. At least eight members of the Court (Justice Thomas does not say) agree on the first two points. Reason-giving is required because, “to determine whether a locality’s denial was supported by substantial evidence, as Congress directed, courts must be able to identify the reason or reasons why the locality denied the application.” The Court ties this conclusion to the administrative law term “substantial evidence,” though the Court’s reasoning does not seems specific to that standard of review (which asks “whether a ‘reasonable mind might accept’ a particular evidentiary record as ‘adequate to support a conclusion’”). Rather, the Court seems to embrace the broader administrative law principle, often linked to Overton Park in the context of arbitrary and capricious review, that meaningful judicial review requires some sort of record that allows the court to see what the agency’s rationale was at the time it made its decision.
The Court’s decision on the second prong resolves a circuit split in the lower courts of appeals. The majority holds that a locality’s reasons need not appear in the same writing that conveys the application denial because the statutory text does not say they must. In light of the Act’s savings clause and its cooperative federalism structure (the first of three separate nods to federalism in the Justices’ four opinions), the Court concludes that the Act’s enumerated limitations on localities “set out an exclusive list” – one that doesn’t prescribe the form of the reasons. The Court concedes that there are “plausible bases” for a same-writing rule – namely, combing through a written record for a locality’s rationale can be a time-consuming and unfruitful exercise – and that providing a short statement of reasons may make things easier for everyone. But, says the Court, “[i]t is not our place to legislate another approach,” and the city’s practice of providing access to its “detailed meeting minutes” suffices.
It is notable that, in so concluding, the Court embraces a notion of reason-giving considerably weaker than the full-bore administrative-law approach that T-Mobile South had sought, and much closer to what the city proposed. T-Mobile South’s argument had been that the meeting minutes did not count as reason-giving at all, but rather were an unhelpful rehash of divergent statements made at the public meeting. It is hard to tell whether the Court is being deferential to the city in the spirit of federalism, or merely holding that, as a category, minutes can be a sufficient way of stating reasons, without opining on these particular minutes. (The Court was not presented with the question of whether the city’s decision actually satisfied the substantial evidence test, so the adequacy of Roswell’s or any other locality’s written record will be decided on a case-by-case basis in the lower courts.)
The third prong of the Court’s decision sparked disagreement among the Justices. The majority holds that, in light of the Act’s provision affording affected entities judicial review within thirty days of a locality’s decision, the locality must provide its written reasons “essentially contemporaneously” with its denial – something the City of Roswell failed to do. According to the majority, this timing requirement is necessary to allow entities to make “a considered decision” about whether to seek judicial review, and to allow courts to review those denials. The Court points out that the ruling should not unduly burden localities, since they can just hold off on issuing their decisions until their minutes are ready (so long as they stay within the FCC’s broader time frame for making a decision). The majority leaves open, to be decided by the Eleventh Circuit, what the appropriate remedy should be.
Justice Alito concurred. He agrees that the term “substantial evidence” invokes administrative law principles, including the requirement that agencies give reasons. But he adds that three other administrative law principles may also apply. The first, as I pointed out in my preview, is that courts “uphold a decision of less than ideal clarity if the agency’s path may be reasonably discerned.” So a short statement should suffice; the Act does not require localities to write opinions. Second, administrative law follows the harmless error rule, and it is not clear what harm T-Mobile South suffered here. Third, the usual remedy for agency errors is a remand to the agency. “Nothing we say today,” Justice Alito stresses, “should be read to suggest that when a locality has erred, the inevitable remedy is that a tower must be built.” He describes this point as “important” given the Act’s “federalism implications.” Justice Alito’s gloss on the majority’s opinion suggests that he views T-Mobile South’s win as an especially narrow one.
Chief Justice Roberts’s dissent, joined by Justice Ginsburg and by Justice Thomas in part, disagrees with the majority’s timing requirement. The dissent observes that the requirement has no support in the statutory text and was not briefed or considered below. The dissent also discounts the majority’s practical justifications, noting that a reviewing court does not need the locality’s reasons to be delivered along with its denial so long as they are available when the court undertakes its review – invariably at a much later date. As for the point that companies need time to decide whether to seek judicial review, “[t]his concern might have force if towns routinely made these decisions in secret, closed-door proceedings, or if applicants were unsophisticated actors. But the local zoning board or town council is not the Star Chamber, and a telecommunications company is no babe in the legal woods.” Wireless companies actively participate in these local proceedings; indeed, in this case (and others), T-Mobile South brought its own court reporter, so it had access to a word-for-word transcript of the meeting. All of that said, the Chief Justice agrees with the Court that the decision’s impact on localities will likely be small.
Justice Thomas’s separate dissent rails further against the majority’s atextual timing requirement. He notes that the Court has been “unwilling to impose procedural requirements on federal agencies in the absence of statutory command” – an echo of the famous Vermont Yankee principle. In the case’s final nod to federalism, he opines that localities are entitled to “at least as much respect as a federal agency.” And yet, he concludes, “the majority treats them as less than conscripts in ‘the national bureaucratic army.’”
The Justices, though divided, seem to agree that the T-Mobile South decision will have limited impact. Local governments can comply with the decision by waiting to issue denials of cell tower requests until they have finalized their meeting minutes (or any other written record with discernible reasons). What is most interesting about the decision is the Court’s still-developing approach to bridging administrative law and federalism – and the fact that even when all Justices pledge allegiance to statutory text, four distinctive opinions can emerge.
