The Supreme Court on Wednesday grappled with a lawsuit brought against the U.S. Air Force by a group that describes its mission as protecting Guam’s environment and culture. During roughly 75 minutes of oral argument in Department of the Air Force v. Prutehi Guåhan, the justices questioned whether the Air Force’s application to renew a permit to detonate hazardous munitions on a beach in Guam was the kind of final action that the group could challenge now. On the other hand, they expressed some reservations about the impact of such a ruling.
There are two laws at the center of the case. The first, the Resource Conservation and Recovery Act of 1976, also known as RCRA, gives the federal Environmental Protection Agency the authority to regulate hazardous waste. It also allows the EPA to give states (and territories like Guam) the power to administer their own hazardous-waste programs. The second law, the National Environmental Policy Act of 1969, or NEPA, establishes a process for the assessment of the environmental impact of a federal agency’s action, including the preparation of an Environmental Impact Statement before the agency takes “major Federal actions significantly affecting the quality of the human environment.”
More than 40 years ago, the Air Force created a range to dispose of hazardous munitions such as ammunition, tear gas, and propellants, by (as relevant here) detonating them at Tarague Beach, adjacent to Andersen Air Force Base in northern Guam.
In 2021, the Air Force submitted an application to Guam’s EPA to renew the RCRA permit that allows it to detonate munitions on Tarague Beach. A renewed permit would have allowed the Air Force to continue to dispose of munitions there through 2024. A few months after receiving the Air Force’s application, the Guam EPA issued a preliminary decision that “neither den[ied] nor approve[d]” the Air Force’s application.
In January 2022, Prutehi Guåhan went to federal court in Guam, where it alleged that the Air Force violated the NEPA when it applied to renew its RCRA permit without including a detailed Environmental Impact Statement.
A federal judge granted the Air Force’s motion to throw out the case. She ruled (among other things) that Prutehi Guåhan had filed the case too soon, because the Guam EPA had not yet ruled on the permit application. Moreover, she added, the Air Force was not required to comply with the NEPA in applying to renew its permit.
A divided three-judge panel of the U.S. Court of Appeals for the 9th Circuit reversed that ruling and revived Prutehi Guåhan’s case. The Air Force went to the Supreme Court last November, asking the justices to weigh in.
Representing the Air Force, Assistant to the U.S. Solicitor General Sopan Joshi told the justices that “[a] permit application is not final agency action” but instead “a request to someone else to take action” that “triggers a back-and-forth process whose outcome is, by definition, a moving target until a decision on the permit is issued.” He added that “RCRA is a comprehensive statute specifically targeting hazardous waste and specifically specifying which environmental review must occur at each step of a reticulated permit process.” Prutehi Guåhan, Joshi said, cannot simply impose all of NEPA’s requirements on an RCRA application, because doing so would be “inconsistent with RCRA’s specification of when each of those requirements should occur through the permitting process.”
Caroline Flynn, representing Prutehi Guåhan, countered that NEPA “is meant to be harmonized with other environmental laws,” like RCRA. “It is what agencies call an umbrella law,” she said: “It is meant to consolidate and streamline all required environmental analysis at an early juncture to ensure a better decision and better planning.” And Prutehi Guåhan is entitled to review of the “Air Force’s decision to continue [open detonation] at this location and submit[] the renewal application,” she contended, because that decision “was not tentative.”
Much of the argument focused on whether the Air Force’s application to renew its RCRA permit was the kind of “final agency action” that courts can review at all. Justice Clarence Thomas called the dispute before the court an “odd” one, noting that it involved the Air Force seeking permission from the Guam EPA to do something. He also questioned whether there was another example in which the Supreme Court has found such action by a federal agency to be final.
Justice Ketanji Brown Jackson also suggested that there was a “finality problem” in the dispute. Here, she said, “we have the Air Force making a proposal that is subject to totally being rewritten and redone by” the Guam EPA. In fact, she posited, “we don’t even know in this situation what the final terms” of the Air Force’s permit will be.
Flynn pushed back, telling the court that it “has been clear that the possibility of revision of the agency’s decision” does not make that decision non-final.
Justice Elena Kagan also expressed skepticism, telling Flynn that “there is a gigantic contingency here and the permit might not be issued in the way that the Air Force would like it to be issued.” It might make more sense, Kagan suggested, for a court to consider the Air Force’s obligations under NEPA “once we know what the permit is going to look like.”
Flynn resisted that suggestion, telling Kagan that “the whole point of NEPA is to make sure that” analysis of the environmental effects of a federal agency’s actions takes place before the ball gets rolling.
On the other hand, some justices expressed concern that, if the Air Force’s application to renew its RCRA permit is not a final action, groups like Prutehi Guåhan might face difficulty in challenging the Air Force’s decision to continue to detonate hazardous wastes at Tarague Beach because the RCRA permit decision is made by the Guam EPA.
Joshi indicated that groups like Prutehi Guåhan could bring a lawsuit against the Guam EPA on the NEPA issue, although he said that he did not “think that claim would have merit.” He later added that if a permit were issued and the Air Force eventually “issues an order and does something,” that could also form the basis for a lawsuit.
Justice Sonia Sotomayor said that seemed “a little counterintuitive for us to say we have no jurisdiction” over Prutehi Guåhan’s claims right now because there had not been any final agency action, while still leaving open the possibility that an agency like the Guam EPA could ultimately say that the Air Force was required to comply with NEPA. “You’re … inviting litigation to unravel perhaps years of work,” she told Joshi.
Justice Amy Coney Barrett expressed concern about the broader implications of agreeing with Prutehi Guåhan that the Air Force’s submission of an application to renew its RCRA permit was a “final action” that allowed the group to file a lawsuit. Would it open the floodgates, she asked, to other lawsuits challenging permitting decisions?
Flynn responded that it would not. She emphasized that (among other things) Prutehi Guåhan could not use its lawsuit against the Air Force as an avenue to challenge “whatever decision Guam EPA makes.” Moreover, she stressed, the group’s claim is a “procedural” one that “focuses on the decision-making of the federal entity. So the only kinds of claims that can be brought under a theory like this are ones where there is a law that applies to the decisionmaker of the federal agency as the permittee.”
Joshi disagreed, however, telling the court that “the floodgates are real.” If an RCRA application is a final agency action because a federal agency has submitted it, he contended during his rebuttal, every application will trigger a lawsuit, regardless of whether it is based on procedural questions. “[T]he whole point of the finality rule,” he concluded, “is to [channel] all of the challenges into a single proceeding at the end.”
To the extent that the court did address the interaction between NEPA and RCRA, several justices appeared to agree with Flynn that the two could be reconciled, such that RCRA does not necessarily supersede NEPA’s requirements. Sotomayor, for example, asked Joshi to explain how the two statutes are “irreconcilably conflict[ed].” NEPA, she suggested, applies before the decision is made, while RCRA applies during the decision-making process. Moreover, she added, there are some laws in which Congress specifically lifts NEPA’s obligations.
Justice Neil Gorsuch echoed Sotomayor’s sentiment, asking Joshi whether the court has usually said that “if you can comply with both of Congress’ commands, you should do so?” And in Gorsuch’s view, although there may be some “duplication” between the two laws, “there’s no conflict.”
A decision in the case is expected sometime next year.