Skip to content
Goldberg Segalla logo

Environmental Law Monitor

Your Guide to Emerging Issues in Environmental Regulation and Litigation.

Guam
• Environmental Law Monitor, NEPA

Falling Leaves, Rising Questions: NEPA Returns to the Supreme Court

Posted by

As fall weather arrives and pumpkin spice lattes return, the next U.S. Supreme Court term is also set to begin in October.

One key environmental case to watch is Department of the Air Force v. Prutehi Guahan, scheduled for argument on October 7, which concerns the interplay between NEPA and other federal regulations, as well as judicial review of federal agency action. As discussed previously in this blog, the Supreme Court’s landmark decision last year in Seven Cnty. Infrastructure Coal. v. Eagle County significantly narrowed the scope of the National Environmental Policy Act (NEPA). The court may now further limit NEPA’s reach where it overlaps with arguably duplicative federal environmental regulations. Separately, by addressing what constitutes a “final agency action,” the court’s decision may also affect when parties can seek judicial review under the Administrative Procedure Act (APA), which governs review of federal agency action.

At issue is the U.S. Air Force’s disposal of hazardous waste, specifically munitions, at Andersen Air Force Base in Guam which is near Guam’s only drinking-water aquifer and close to the home of endangered sea turtles. The munitions are disposed of through open burning or open detonation operations, known as OB/OD operations. Under the Resource Conservation and Recovery Act (RCRA), the Air Force must obtain a permit from Guam’s Environmental Protection Agency (EPA) every three years to conduct this disposal work. RCRA gives the EPA authority to regulate hazardous waste from cradle to grave, including permitting and enforcement provisions designed to ensure that waste is handled safely as it moves through the chain.

In 2021, the Air Force requested approval from Guam’s EPA under RCRA to restart open burning, a practice it had not used since the early 2000s. The Air Force did not prepare an EIS or environmental assessment or provide an opportunity for public comment as part of its application (steps NEPA generally requires federal agencies to complete before making a final decision), but, otherwise, complied with RCRA’s provisions. In response, environmental group Prutehi Guahan filed suit under the APA challenging the permit-renewal submission, alleging that the Air Force violated NEPA’s environmental assessment requirements.

The case was originally filed in the District Court of Guam, which dismissed it after holding that Prutehi Guahan lacked standing, the permit renewal application did not constitute a “final agency action” subject to review under the APA, and the RCRA acted as the functional equivalent of NEPA provisions. Prutehi Guahan appealed to the Ninth Circuit, which held that the submission of a permit-renewal application was a “final agency action” subject to immediate judicial review under the APA while the application was pending and that federal agencies complying with RCRA’s hazardous-waste provisions must also separately comply with NEPA’s environmental assessment requirements and remanded the case. The United States then sought review by the Supreme Court.

In its petition, the United States argues that, under the APA, submitting an application is not a final agency action, which requires that an action “must both (a) mark the consummation of an agency decision-making process and (b) determine legal rights or obligations.” The United States contends that the permit-renewal process is only one step in the regulatory process and that there are no “meaningful legal consequences until the Guam EPA grants or withholds a new permit.” It further argues that requiring a separate NEPA review in addition to RCRA measures governing hazardous-waste disposal is wasteful and redundant. Notably, the United States relies on Seven Cnty. Infrastructure Coal. v. Eagle County, emphasizing that the Supreme Court rejected a similar interpretation of NEPA that would “paralyze” rather than “inform” agency decision-making.

In response, Prutehi Guahan characterizes the Air Force’s renewal-permit submission as a “decision to conduct its operations in a particular place under a certain protocol” that represented a “consummation of its own deliberations” and had legal consequences by extending the prior permit terms. Thus, Prutehi Guahan argues, the submission was a final agency action reviewable under the APA. Last, Prutehi Guahan argues that RCRA and NEPA do not overlap but instead operate at different points in the process: NEPA review is required before the Air Force decides its course of action, while RCRA governs after a permitting decision is made.

Looking beyond the facts of the case, a ruling on these issues could have broader implications for environmental litigation. First, the Supreme Court’s treatment of the overlap between NEPA and regulations such as RCRA could determine whether agencies must undertake duplicative environmental reviews or can streamline the process. Second, if the court holds that the Air Force’s permit-renewal submission was a final agency action, the ruling could open the door to litigation early in the process, which could slow down projects significantly. Regardless of the outcome, this case will further define the limits of NEPA.