State health board's rescission of show-cause order against Verizon at center of preemption dispute before high court

BOSTON — The Supreme Judicial Court on Tuesday wrestled with whether federal telecommunications law bars a local board of health from enforcing a show-cause order directed at a Verizon cell tower and whether the board acted arbitrarily when it later rescinded that order.

Scott McCullough, plaintiffs' counsel, opened by saying the matter "is a public health matter" in which a local board was attempting "to investigate and eliminate public health threats," citing provisions described in the record as "Chapter 1 11, sections 1 22, 1 43." He told the court the inquiry is whether federal law precludes a state law board from acting to protect residents.

The dispute centers on a show-cause order the board issued requesting that Verizon "please come and talk to us" and seek ways "to eliminate" what the board identified as a public-health nuisance. Justice 1 pressed counsel to focus on the operative judicial question: the only order on appeal is the board's rescission of that show-cause order. McCullough conceded the rescission is the subject of review but told the court the board members "reaffirmed their belief" that a health threat existed and rescinded only because they were denied the ability to defend the order in federal court and lacked funds to litigate.

"They wanted to do this, but because they could not have counsel, they had no choice but to issue the rescission," McCullough said.

Board counsel, identified in the argument as Attorney Law, countered that the Telecommunications Act (TCA) of 1996 and long-standing federal communications authority preempt local regulation "on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the commission's regulations concerning such emissions." Attorney Law told the court the superior court's decision was well founded and that obstacle (conflict) preemption, and—if needed—express preemption foreclose local operational limitations based on health claims.

The justices probed both sides on the statutory scope and the record. Justice 5 asked plaintiffs to identify precedent allowing a local agency to prevail over preemption claims in the wireless context; McCullough characterized this as a "case of first impression" for a health board called upon to investigate RF emissions. Justice 6 and Justice 7 focused on whether an enforcement step that would effectively reduce emissions at a particular site would create a disuniform national patchwork of operational standards the TCA sought to prevent.

Counsel debated technical and evidentiary points about FCC standards. McCullough noted the administrative record contained evidence that emissions were within FCC "maximum permitted exposure" levels but said the record lacked documentation showing what the "minimum power necessary" would be at the site. "There was some evidence before the health board on their power emissions," he said, "and it did generally show that they were well within, admittedly, the maximum permitted exposure levels. But there was no evidence ... showing what would be the minimum power necessary to affect communications."

The court also flagged a gap in the record: Justice 1 observed the rescission had not been memorialized in written minutes submitted to the court. McCullough said the video of the board's vote and other administrative-record materials had been provided to the superior court and that counsel would supplement the record with minutes and the rescission documentation.

Attorney Law emphasized that the rescission, as explained in board minutes and the administrative record, rested on practical considerations—costs and the risk of litigation defeat because of preemption—so that withdrawing the order without prejudice was a "judicious use" of public funds. He argued the court should review the rescission under the familiar arbitrary-and-capricious standard and uphold it if it was a "well founded" and reasoned judgment.

On remedies, the bench and counsel discussed federal alternatives: FCC rulemaking, pending litigation before the D.C. Circuit (including litigation involving the Environmental Health Trust), and the limited nature of local remedial avenues if federal standards govern operational emissions. Attorney Law traced federal authority to the Communications Act of 1934 and the TCA's direction to the FCC, arguing that allowing local health-based operational limits would undermine national uniformity.

The case put before the justices two discrete questions: whether the board's rescission decision can be set aside as arbitrary and capricious on the record before the court, and whether the TCA or related federal communications authority preempts a local board from regulating or restricting wireless-facility operations on health grounds when facilities comply with FCC rules.

The court did not announce a ruling at argument. Both sides offered to supplement the record with board minutes and the video of the rescission vote; plaintiffs asked the court to reverse and remand for further proceedings to resolve the underlying issues.