Adapted from an article by By Susan Foster, May 25, 2022 | Original Children’s Health Defense Fund Defender article here.
CHD Seeks to Intervene in Cell Tower Lawsuit Against Verizon
Lawyers working on behalf of Children’s Health Defense today filed a motion to intervene in the legal battle between the Pittsfield, Massachusetts Board of Health and Verizon over the telecom giant’s refusal to remove or relocate a cell tower. The motion was filed on behalf of six Pittsfield residents.
Lawyers working on behalf of Children’s Health Defense (CHD) today filed a motion to intervene in the legal battle between the Pittsfield, Massachusetts Board of Health and Verizon over the telecom giant’s refusal to remove or relocate a cell tower.
The motion, filed on behalf of six Pittsfield residents, is related to a lawsuit filed earlier this month by a Verizon Wireless-affiliated cellular provider seeking to invalidate the Board of Health’s April 11 order to remove the tower.
The board on Feb. 2 voted unanimously to issue a cease-and-desist order to Verizon if the company refused to discuss removing or relocating the tower, which residents said is the source of multiple illnesses.
Verizon affiliate Pittsfield Celluar Telephone responded by suing to overturn the board’s order.
Specifically, lawyers representing the residents will oppose Verizon’s request that the court rule the Telecommunications Act of 1996 expressly preempts the board’s emergency order.
Verizon Wireless is also arguing the emergency order was improperly issued, is null and void and has no legal effect.
The board went through an exhaustive analysis of the science and medical information in the record it compiled, including testimony from renowned independent scientists and medical doctors, individual diagnoses of the affected residents plus testimony by the residents themselves.
The board order found “convincing evidence that pulsed and modulated [radiofrequency radiation] RFR is bio-active and affects all living things over the long term. RFR can and does also cause more immediate harm and injury to human beings.”
The order also noted the cell tower rendered the historic Shacktown section of Pittsfield:
“[u]nfit for human habitation — because the continued exposure causes them severe pain, unable to function, and endangers and materially impairs their health and safety. … this evidence clearly demonstrates to this Board that specific Shacktown residents in the vicinity of the facility have suffered and are suffering injuries and illnesses directly caused by the pulsed and modulated RFR emitted by the facility in issue, and for so long as the facility is in operation it will continue to be injurious to the public health and continue to drive residents from their homes …
“The Verizon Wireless 877 South Street wireless facility operated by Verizon Wireless is a public nuisance, a cause of sickness, and a trade which may result in a nuisance or be dangerous to the public health.”
Commenting on the case, Mary Holland, CHD president and general counsel, said:
“CHD is committed to protecting children from all kinds of toxins, and wireless emissions are just that. CHD has been exposing the risks and harms associated with the heedless stampede toward powerful wireless base stations everywhere and anywhere.”
The Court of Appeals for the D.C. Circuit in August 2021 agreed, handing CHD a win over the Federal Communications Commission (FCC) in EHT et al v. Federal Communications Commission, ruling the FCC’s decision to retain its 26-year-old RFR regulatory guidelines were, for the most part, “arbitrary and capricious.”
“The situation in Pittsfield now confirms our arguments to the FCC and the court that the FCC’s current emission limits are obsolete. The science is clear: Electromagnetic and Radiofrequency radiation (EMF/RF) emitted from cell towers is destroying the environment, putting our children’s future at risk and now — as the expert Pittsfield Board of Health specifically found — this tower is already making a cluster of at least 17 residents severely ill.”
CHD is representing four of the affected families, Holland said, in an effort to “ensure the cellular company is held to account for the injuries it has caused.”
“These families must be allowed to return to their homes and live in an environment that is not filled with electrosmog,” said Holland. “We will explain to the court that the board’s order is lawful and is not preempted by federal law.”
Stating that “this matter should not be in court at all, much less federal court,” Holland said the attorneys will move to dismiss the matter “at the outset, because the cell company’s legal contentions are both premature and invalid.”
Appendix A: May 25, 2020 Motion to Intervene
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Civil Action No. 3:22-cv-10718-MGM
Pittsfield Cellular Telephone Company d/b/a Verizon Wireless, Plaintiff
Board of Health of the City of Pittsfield, Massachusetts, Defendants
MOTION TO INTERVENE
Courtney Gilardi, Charlie Herzig, Judy Herzig, Mark Markham, Angelika Markham, and Elaine Ireland (collectively “Intervenors”), with the support of additional Centerville residents, move pursuant Fed. R. Civ. P. 24 to intervene. As the basis, therefore, the Intervenors state:
- On May 10, 2022, Pittsfield Cellular Telephone Company d/b/a Verizon Wireless (“Verizon Wireless”) filed this action challenging an Emergency Show Cause Order issued on April 11, 2022 (“Order”), by defendant Pittsfield Board of Health (“Board”) which:
- (i) declared that the operation of a personal wireless services facility located at 877 South Street, Pittsfield, Massachusetts (the “Facility”) by Verizon Wireless is a public nuisance and violates various Massachusetts state and local health codes and laws;
- (ii) required that Verizon Wireless show cause why the Board should not issue an order requiring that the Facility cease operations;
- (iii) required that Verizon Wireless request a hearing on the Order within seven days of its issuance (i.e., by April 18, 2022); and (iv) if Verizon Wireless failed to request a hearing, declared that the order would become a notice of discontinuance requiring that Verizon Wireless abate and eliminate the nuisance and violations of the state sanitary code within seven days of the expiration of the period to request a hearing (i.e., by April 25, 2022).
- Verizon Wireless alleges in its Complaint that the Order is preempted by Section 332(c)(7)(b)(iv) of the Telecommunications Act of 1996 (“Communications Act”), 47 U.S.C. § 332(c)(7)(B)(iv),1 as the Order purportedly regulates “the placement, construction, and modification of personal wireless service facilities 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.”
- The Intervenors are:
- (i) individuals who live in the immediate vicinity of the Facility which is subject to the Order;
- (ii) among the group of residents that were harmed by the Facility, and
- (iii) each expressly named in the Order.
- The Intervenors participated in proceedings before the Board and presented testimony and evidence to the Board, which the Board found to be credible and persuasive.
- The Intervenors have the right to intervene as a matter of right, given that the disposition of this case will impair or impede the Intervenors’ ability to protect their interests unless they are adequately represented in connection with the instant matter. Fed. R. Civ. P. 24(a).
- Even if the Intervenors may not intervene as a matter of right, they have a significant interest in the outcome of the instant litigation and “a claim or defense that shares with the main action a common question of law or fact.”
- Assuming without conceding that 47 U.S.C. § 332(c)(7)(B)(iv) does have some application here, as shown below Intervenors meet the test for both “as a matter of right” and “permissive” intervention under prevailing circuit precedent addressing that section.
- The Intervenors have submitted a memorandum in support of their motion.
WHEREFORE, the Intervenors respectfully request that this Court:
A. Allow the Intervenors to intervene and grant them full party status in the instant litigation; and,
B. Order such further relief as is just and equitable.
/s/ Paul Revere, III
Paul Revere, III
Attorney for Courtney Gilardi, Charlie Herzig, Judy Herzig, Mark Markham, Angelika Markham, and Elaine Ireland,
Law Offices of Paul Revere, III
226 River View Lane
Centerville, Massachusetts 02632