Department of the Air Force v. Prutehi Guåhan

    Issues

    Is the Air Force’s permit‑renewal application to continue to dispose of hazardous waste in Guam a final agency action, and does this application require compliance with the National Environmental Policy Act?

    Oral argument:
    October 07, 2026
    Court below:
    United States Court of Appeals for the Ninth Circuit

    This case asks the Court both to determine whether the Air Force’s application to renew a permit to dispose of hazardous waste under the Resource Conservation and Recovery Act (“RCRA”) is a final agency action and whether the National Environmental Policy Act’s (“NEPA”) environmental‑review requirements apply to this application. The Air Force argues that the application was not final agency action and, if it was, RCRA’s specific requirements displace NEPA’s more general ones. Prutehi Guåhan counters that the application reflects the Air Force's final decision, and that the NEPA’s requirements do not yield to RCRA here. This case touches on important questions regarding both the interaction between environmental statutes and the extent to which federal agencies must consider environmental consequences before acting.

    Questions as Framed for the Court by the Parties

    (1) Whether the federal government’s submission to a state or territorial regulator of an application to renew a Resource Conservation and Recovery Act of 1976 permit is “final agency action” that is immediately reviewable under the Administrative Procedure Act.

    (2) Whether the federal government must comply with the general environmental‑review procedures of the National Environmental Policy Act of 1969 before submitting a permit‑renewal application under RCRA, which sets forth its own specific procedures to review environmental impacts in the context of hazardous‑waste treatment.

    Facts

    The U.S. Air Force operates Andersen Air Force Base in northern Guam.   Since 1982, the Air Force has used Tarague Beach as a disposal site for unexploded and outdated military weapons, destroying them through open burning (“OB”) or open detonation (“OD”). The Air Force has not conducted OB operations since at least the early 2000s, but OD operations continue.

    The Air Force must get approval for OB and OD operations through applying for a permit under the guidelines set out in the Resource Conservation and Recovery Act (“RCRA”), a federal statute which regulates facilities that handle the disposal of hazardous waste. The Guam Environmental Protection Agency (“Guam EPA”) has administered RCRA in Guam since 1986, and its regulations require permit renewals for facilities every three years.

    In May 2021, the Air Force submitted a RCRA renewal application to Guam EPA to continue conducting OB and OD operations from 2021 through 2024. The Air Force did not prepare an environmental assessment or an impact statement, and it did not open the application to public comment before submitting it.Guam EPA held its own public comment period from July 2021 to September 2021. On October 15, 2021, Guam EPA issued a preliminary notice that neither approved nor denied the Air Force’s application while Guam EPA reviewed those comments. In the meantime, Guam EPA allowed the Air Force to continue operating its OB and OD activities under its 2018 permit.

    Prutehi Guåhan—formerly Prutehi Litekyan: Save Ritidian—is a Guam‑based nonprofit organization whose mission is to protect the territory’s natural and cultural resources. Prutehi Guåhan sued the Air Force in 2022, arguing that the Air Force violated the National Environmental Policy Act (“NEPA”) by submitting its RCRA permit renewal application without conducting the required environmental assessments. The NEPA instructs federal agencies to prepare detailed environmental impact statements before undertaking major federal actions that significantly affect the environment. These statements must consider environmental impacts of the proposed action in both the short and long term, weigh alternatives, and involve public comment. 

    The District Court of Guam dismissed the case, holding that (1) Prutehi Guåhan lacked standing to challenge the permit application because its injury was not fairly traceable to the Air Force’s action; (2) the claim was not ripe for review because the Air Force had not engaged in final agency action by filing its permit renewal application; and (3) even if the District Court had jurisdiction, Prutehi Guåhan failed to state a claim in its case because the RCRA application made NEPA review redundant.

    Prutehi Guåhan appealed the district court’s decision, and the U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit first held that Prutehi Guåhan’s injury was traceable to the Air Force because it was the Air Force that had not considered NEPA’s requirements when it submitted its RCRA application. Second, the court held that the Air Force’s application was a final agency action because it represented its ultimate decision regarding OB and OD operations. Third, the court determined that NEPA and RCRA serve different purposes and thus are not interchangeable.

    On November 14, 2025, the Air Force petitioned the Supreme Court of the United States to hear this case.  The Supreme Court granted certiorari on March 9, 2026.

    Analysis

    FINAL AGENCY ACTION

    The Air Force argues that its permit‑renewal application is not “final agency action” under the APA.  The Air Force reasons that the application does not satisfy the first prong of the two‑pronged test set out in Bennett v. Spear, which asks whether the action is the “consummation of the agency’s decision‑making process,” and not merely “tentative” or “interlocutory.” Specifically, the Air Force insists that the application only begins an “iterative” decision‑making process over which Guam EPA has decisive authority, and, accordingly, may ask for modifications and additional documentation based on public comments. Further, the Air Force emphasizes that its decision to propose the protocols in its 2021 application is “tentative and interlocutory” because it may further pursue or forfeit renewal in response to Guam EPA’s new protocols. The Air Force adds that these are not mere “theoretical” possibilities of change because Guam EPA holds the authority to deny renewal, and NEPA’s public‑comment process may cause the Air Force to change course. The Air Force argues that its permit‑renewal application is different from the final agency actions in United States Army Corps of Engineers v. Hawkes Co. and Sackett v. EPA, because the relevant agencies in those cases had “sole discretionary power” to decide whether to reconsider their own decisions. Here, the Air Force posits, it does not control whether Guam EPA will request changes to the draft permit, meaning that its application for the permit is nonfinal.

    The Air Force contends that the permit‑renewal application also fails Bennett’s second prong, which asks whether an action determines “rights or obligations” or produces legal consequences, because the pending application does not determine any rights or obligations. Rather, the Air Force continues, the application is a request for a separate authority to determine the rights or obligations of the Air Force, and thus is not reviewable—just like other agency submissions that only inform a decision to be made by a different entity. The Air Force further contends that any legal consequence of the application flows, if at all, from Guam EPA’s prior approval of the 2018 permit and Guam EPA’s subsequent decision to refrain from a finalized decision on the permit‑renewal application.

    Prutehi Guåhan counters that because the first Bennett prong considers the action of the agency being challenged, the only relevant action is the Air Force’s decision to continue OD operations.  Prutehi Guåhan insists that the Air Force’s permit‑renewal application marks a “culmination” of its internal decision‑making process because the application included details about OD sites, range, and detonation procedures, indicating no internal hesitation over continuing OD operations. Prutehi Guåhan adds that although Guam EPA could force the Air Force to abandon its chosen plan, Guam EPA cannot retroactively change the Air Force’s decision to conduct OD operations. Prutehi Guåhan contends that this decision was not tentative because the operations went on for almost five years under its extended 2018 permit. Moreover, Prutehi Guåhan posits that the Air Force’s decision is not rendered nonfinal because of the possibility that it may reconsider the methods of OD operations on its own or at Guam EPA’s request. Prutehi Guåhan argues the Air Force’s decision was similar to the EPA’s order in Sackett, where the Court ruled that an order from the EPA which did not guarantee reconsideration was still final for APA purposes. Prutehi Guåhan further points to Hawkes, where the Corps of Engineers’ ability to revise its jurisdictional determination based on new information did not make that determination decision nonfinal.

    Moreover, Prutehi Guåhan retorts that the Air Force would have lost the authority to conduct OD operations had it not applied for renewal, so the application determined the Air Force’s rights by preserving that authority. Alternatively, Prutehi Guåhan argues that legal consequences flow from the permit‑renewal application because the Air Force will be bound to the permit once it is approved by Guam EPA. Prutehi Guåhan cites Biden v. Texas, where pending judicial authorization did not make the agency’s action any less of a final determination of its employees’ obligations to follow it. Accordingly, Prutehi Guåhan argues that Guam EPA’s pending approval also does not make nonfinal the Air Force’s “plan of operations.”

    RCRA DISPLACEMENT OF NEPA 

    The Air Force argues that a NEPA review was not required for its permit‑renewal application because the specific prevails over the general under a standard canon of statutory construction. RCRA should govern, the Air Force contends, because it covers NEPA’s environmental concerns while also providing more specific procedures for hazardous‑waste handling, whereas NEPA is a procedural statute that does not impose substantive environmental obligations or restrictions. Moreover, the Air Force argues that RCRA’s requirements and timeline include and reach beyond NEPA’s requirement for environmental review and public engagement before agency action. Specifically, the Air Force posits that RCRA effectively requires the Air Force to conduct extensive review before filing the application by defining the application’s necessary contents, and that RCRA governs the rest of the process as well by requiring the permitting agency to solicit and review public comments while deciding to approve or deny the permit. The Air Force adds that RCRA’s requirements to consider alternative courses of action that become possible through technological improvements, including alternative treatments of OB and OD operations, overlap with NEPA’s requirements. Moreover, the Air Force argues that Congress’ 2023 NEPA Amendment shows legislative intent to have NEPA yield to more specific environmental statutes.

    The Air Force argues that regulatory history and practice suggest RCRA permit renewals do not require a NEPA report. The Air Force points to an EPA regulation exempting RCRA permits from NEPA’s impact‑statement provisions, which EPA justified because RCRA’s procedures are the functional equivalent of NEPA’s requirements. Further, the Air Force contends that Congress adopted this “longstanding interpretation” by choosing not to dispute this EPA statement for four decades although it chose to specify how RCRA interacts with other environmental statutes. Moreover, the Air Force posits that there is no statutory basis found in RCRA or NEPA that would require an agency that is not environmentally focused, such as the Air Force, to have more stringent requirements placed upon it than environmentally focused agencies. The Air Force argues that here, because the EPA does not need to conduct a NEPA review before approving a RCRA permit,neither should the Air Force when it is applying for one.

    Prutehi Guåhan counters that Congress did not intend RCRA to displace NEPA because, unlike the Clean Air Act, RCRA does not expressly exclude complying agencies from NEPA’s requirements.  Moreover, Prutehi Guåhan counters that because it is not “inconceivable” to comply with both RCRA’s permit requirement and NEPA’s environmental‑study requirement, there is no “clear and fundamental” conflict necessary for a NEPA displacement.  Rather, Prutehi Guåhan posits that NEPA complements RCRA because findings of the NEPA analysis support RCRA’s permit‑application process. Prutehi Guåhan argues further that RCRA is not more specific than NEPA because NEPA’s environmental review has more specific demands for analysis in depth, consideration of alternatives, and coordination between agencies. Moreover, Prutehi Guåhan insists that RCRA’s requirements are not functionally equivalent to those of NEPA because, unlike NEPA, RCRA only requires facilities to evaluate environmental impact after the applicant agency decides to submit an application. Prutehi Guåhan also points out that RCRA does not require the applicant agency to consider alternative sites and does not require either the agency to consider a myriad of cultural, aesthetic, economic, and social consequences of the action. Further, Prutehi Guåhan argues, Guam EPA’s later offering of public comment under RCRA cannot substitute for the Air Force’s earlier solicitation of public input under NEPA.

    Furthermore, Prutehi Guåhan argues that regulatory history and practice favor the conclusion that NEPA requirements apply. Prutehi Guåhan argues that functional equivalence is not a relevant standard because Congress recently refused to adopt functional equivalence as a standard for exempting NEPA actions. Prutehi Guåhan further contends that the Department of Defense components’ recent adoption of NEPA categorical exclusions suggests that agencies understand that NEPA applies even when permits are required or RCRA applies. Moreover, Prutehi Guåhan counters that the EPA regulation the Air Force points to does not involve NEPA requirements imposed on the applicants for RCRA permits, only the procedures for draft permits prepared by the EPA, and thus is not applicable in this case.

    Discussion

    INEFFICIENCY AND DELAYS

    The U.S. Chamber of Commerce and several professional organizations (“Chamber of Commerce et al.”), in support of the Air Force, argue that requiring NEPA review on top of the RCRA permitting process is repetitive and imposes unnecessary costs. Chamber of Commerce et al. argue that RCRA specifically regulates hazardous‑waste treatment facilities while NEPA, only requires, at most, an agency to prepare an expensive report without imposing substantive environmental obligations. Chamber of Commerce et al. assert that requiring agencies to conduct unnecessary and expensive NEPA analyses could delay hazardous‑waste projects and ultimately harm the environment. For example, Chamber of Commerce et al. argue that an aging facility would continue operating under a stale permit, with any planned containment and treatment upgrades on hold, while its renewal awaits NEPA review. Chamber of Commerce et al. also contend that these additional procedural costs would cause developers to shrink, relocate, or abandon infrastructure projects, worsening the national infrastructure shortage.

    The State of Washington, nine other states, and the District of Columbia (“Washington et al.”), in support of Prutehi Guåhan, counter that NEPA can improve and reduce delays in the state RCRA permitting process. Washington et al. argue that if NEPA no longer applies, states with their own environmental‑review laws would have to conduct those reviews themselves instead of building off information developed through the NEPA process. Washington et al. further argue that because RCRA permit applications do not include all the information in a NEPA statement, state agencies may have to separately request that information, further slowing the permitting process. Additionally, several members of Congress (“Congress Members”), in support of Prutehi Guåhan, note that additional NEPA requirements are not redundant. The Congress Members posit that environmental impact statements required under NEPA can ensure there are fewer controversial decisions and prevent agencies from wasting money on projects when there are better alternatives. 

    STATE AUTHORITY AND PARTICIPATION

    West Virginia and twenty other states (“West Virginia et al.”), in support of the Air Force, assert that allowing early judicial review of RCRA permit applications will shift decision‑making authority away from states because opponents could challenge the application before the state has even acted. Consequently, West Virginia et al. argue that this would allow the federal courts to override state decisions regarding natural resources, a role reserved for the states. West Virginia et al. further contend that an opponent who succeeds in blocking a RCRA permit application in court before a state has a chance to act bears no costs, while a state that loses the chance to shape a permit will never have the opportunity to provide input again. In addition, West Virginia et al. argue that states bear higher economic costs from NEPA litigation because litigation creates uncertainty and unpredictability that may discourage investments in states with substantial natural resources. West Virginia et al. explain that investment could shift to different countries or states with less federal land, and hence, fewer federal regulations.

    Washington et al., in support of Prutehi Guåhan, counter that NEPA protects states’ interests by allowing them to participate in federal environmental decision‑making. Washington et al. argue that, because NEPA requires federal agencies to work with states, state‑specific information can help agencies better understand the impact their proposal might have on local natural resources and ecosystems. Additionally, environmental and cultural community‑based organizations in Guam and other U.S. territories (“Community‑Based Organizations”), in support of Prutehi Guåhan, argue that NEPA provides an important federal accountability measure for people in U.S. territories that are otherwise excluded from the political process. The Community‑Based Organizations emphasize that since people in Guam cannot vote for the President and have no representation in the Senate, judicial review of NEPA requirements is important for federal oversight. Similarly, Blue Ocean Law, in support of Prutehi Guåhan, warns that this is particularly important for Guam, where over 25 percent of the island is occupied by the U.S. military. 

    Conclusion

    Authors

    Written by: Eileen Yang and Lucas You

    Edited by: Audrey Hager

    Additional Resources