Petition for Writ of Certiorari — Department of the Air Force, et al., Petitioners v. Prutehi Guahan, fka Prutehi Litekyan

Supreme Court briefNov 14, 2025

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In the Supreme Court of the United States

UNITED STATES DEPARTMENT OF THE AIR FORCE,

ET AL., PETITIONERS

PRUTEHI GUAHAN

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

D. JOHN SAUER

Solicitor General

Counsel of Record

ADAM R.F. GUSTAFSON

Acting Assistant

Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

ROBERT N. STANDER

Deputy Assistant

Attorney General

MAX E. SCHULMAN

Assistant to the

Solicitor General

ROBERT J. LUNDMAN

ROBERT P. STOCKMAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

The Resource Conservation and Recovery Act of 1976

(RCRA), 42 U.S.C. 6901 et seq., is a comprehensive environmental statute providing for cradle-to-grave regulation of hazardous waste through a scheme of cooperative federalism. Under RCRA, the United States Environmental Protection Agency may authorize state and

territorial regulators to administer permitting programs

for hazardous-waste-treatment facilities in their respective jurisdictions, including facilities operated by the federal government. The questions presented are as follows:

1. Whether the federal government’s submission to

a state or territorial regulator of an application to renew

a RCRA permit is “final agency action” that is immediately reviewable under the Administrative Procedure

Act, 5 U.S.C. 704.

2. Whether the federal government must comply with

the general environmental-review procedures of the

National Environmental Policy Act of 1969, 42 U.S.C.

4321 et seq., 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.

(I)

PARTIES TO THE PROCEEDING

Petitioners (defendants-appellees below) are the

United States Department of the Air Force, Troy E.

Meink in his official capacity as Secretary of the Air

Force, the United States Department of Defense, and

Pete Hegseth in his official capacity as Secretary of Defense (hereinafter Department of War and Secretary of

War respectively).*

Respondent (plaintiff-appellant below) is Prutehi

Guahan.

RELATED PROCEEDINGS

United States District Court (D. Guam):

Prutehi Guahan v. United States Department of the

Air Force, No. 22-cv-1 (Oct. 6, 2022)

United States Court of Appeals (9th Cir.):

Prutehi Guahan v. United States Department of the

Air Force, No. 22-16613 (Feb. 13, 2025)

* Secretary Meink and Secretary Hegseth are automatically substituted for their predecessors. See Sup. Ct. R. 35.3.

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statutory and regulatory provisions involved ........................... 2

Introduction................................................................................... 2

Statement:

A. Legal background ............................................................. 5

B. Facts ................................................................................. 11

C. Proceedings below ........................................................... 14

Reasons for granting the petition ............................................. 18

A. The Ninth Circuit’s decision is incorrect:

1. Applying for renewal of a permit is not final

agency action ............................................................. 19

2. RCRA’s environmental-review requirements

preclude any requirement to conduct NEPA

review in this context................................................ 24

B. The decision below warrants further review ................ 29

Conclusion ................................................................................... 32

Appendix A — Court of appeals opinion (Feb. 13, 2025) ...... 1a

Appendix B — District court order (Oct. 6, 2022) ............... 75a

Appendix C — Court of appeals order denying

rehearing (July 17, 2025) ......................... 92a

Appendix D — Statutory and regulatory provisions .......... 94a

TABLE OF AUTHORITIES

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ..................... 22

Alabama ex rel. Siegelman v. EPA,

911 F.2d 499 (11th Cir. 1990) ........................ 5, 15, 25-28, 30

Appalachian Power Co. v. EPA, 477 F.2d 495

(4th Cir. 1973), abrogated on other grounds by

Union Elec. Co. v. EPA, 427 U.S. 246 (1976) ................... 30

Bennett v. Spear, 520 U.S. 154 (1997)...........10, 19, 20, 22, 23

California Cmtys. Against Toxics v. EPA,

934 F.3d 627 (D.C. Cir. 2019) ............................................. 29

(III)

Cases—Continued:

Page

Chemical Weapons Working Grp., Inc. v. United

States Dep’t of the Army,

111 F.3d 1485 (10th Cir. 1997) ........................................... 29

Chemours Co. FC, LLC v. EPA,

109 F.4th 179 (3d Cir. 2024) ............................................... 29

City of Chicago v. Environmental Def. Fund,

511 U.S. 328 (1994).......................................................... 5, 25

Costle v. Pacific Legal Found., 445 U.S. 198 (1980) .......... 13

Dalton v. Specter, 511 U.S. 462 (1994)................................. 21

Department of Transp. v. Public Citizen,

541 U.S. 752 (2004)................................................................ 9

Flint Ridge Dev. Co. v. Scenic Rivers Ass’n,

426 U.S. 776 (1976).............................................................. 27

Franklin v. Massachusetts, 505 U.S. 788 (1992) .......... 21, 22

FTC v. Standard Oil Co., 449 U.S. 232 (1980) .................... 23

Indiana & Mich. Elec. Co. v. EPA,

509 F.2d 839 (7th Cir. 1975) ............................................... 30

International Paper Co. v. Ouellette,

479 U.S. 481 (1987).............................................................. 25

Limerick Ecology Action, Inc. v. United States

Nuclear Regulatory Comm’n,

869 F.2d 719 (3d Cir. 1989) ................................................ 30

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024).............................................................. 26

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992)........................................................ 24, 25

Meghrig v. KFC W., Inc., 516 U.S. 479 (1996) ...................... 5

Ngiraingas v. Sanchez, 495 U.S. 182 (1990) ....................... 11

Pacific Legal Found. v. Andrus,

657 F.2d 829 (6th Cir. 1981) ............................................... 30

Portland Cement Ass’n v. Ruckelshaus,

486 F.2d 375 (D.C. Cir. 1973),

cert. denied, 417 U.S. 921 (1974) ........................... 26, 27, 30

Cases—Continued:

Page

RadLAX Gateway Hotel, LLC v. Amalgamated

Bank, 566 U.S. 639 (2012) ............................................ 24, 26

Seven Cnty. Infrastructure Coal. v. Eagle Cnty.,

145 S. Ct. 1497 (2025) ....................................................... 5, 9

Sierra Club v. EPA, 955 F.3d 56 (D.C. Cir. 2020) .............. 29

South Terminal Corp. v. EPA,

504 F.2d 646 (1st Cir. 1974) ............................................... 30

Union Elec. Co. v. EPA, 427 U.S. 246 (1976)...................... 30

United States Army Corps of Eng’rs v. Hawkes Co.,

578 U.S. 590 (2016).............................................................. 10

United States Dep’t of Energy v. Ohio,

503 U.S. 607 (1992)................................................................ 6

Varity Corp. v. Howe, 516 U.S. 489 (1996) .......................... 24

Village of Bald Head Island v. United States Army

Corps of Eng’rs, 714 F.3d 186 (4th Cir. 2013) .................. 29

Western Neb. Res. Council v. EPA,

943 F.2d 867 (8th Cir. 1991) ......................................... 25, 30

Wyoming v. Hathaway, 525 F.2d 66 (10th Cir. 1975),

cert. denied, 426 U.S. 906 (1976) ................................. 28, 30

Statutes, regulations and rules:

Administrative Procedure Act, 5 U.S.C. 551 et seq.............. 3

5 U.S.C. 558(c) ........................................................... 13, 23

5 U.S.C. 704 ................................................................ 10, 19

Clean Water Act, 33 U.S.C. 1251 et seq. .............................. 26

Endangered Species Act of 1973,

16 U.S.C. 1531 et seq. .......................................................... 26

16 U.S.C. 1536(o)(2) ......................................................... 22

Federal Insecticide, Fungicide, and Rodenticide Act,

7 U.S.C. 136 et seq............................................................... 26

Fiscal Responsibility Act of 2023, Pub. L. No. 118-5,

Div. C, Tit. III, § 321, 137 Stat. 38 ................................ 9, 24

Statutes, regulations, and rules—Continued:

Page

National Environmental Policy Act of 1969,

42 U.S.C. 4321 et seq. ............................................................ 3

§ 102(2)(C), 83 Stat. 853 (42 U.S.C. 4332(2)(C)) ....... 9

§ 106(a)(1), 137 Stat. 39 (42 U.S.C. 4336(a)(1)) ....... 24

42 U.S.C. 4336(a)(2) (Supp. V 2023)................................. 9

42 U.S.C. 4336(b)(1) (Supp. V 2023) ................................ 9

42 U.S.C. 4336(b)(2) (Supp. V 2023) ................................ 9

Organic Act of Guam, ch. 512, 64 Stat. 384 ......................... 11

Resource Conservation and Recovery Act of 1976,

42 U.S.C. 6901 et seq. ............................................................ 2

42 U.S.C. 6903(31) ............................................................. 6

42 U.S.C. 6924(a) ............................................................... 6

42 U.S.C. 6925(a) ............................................................... 6

42 U.S.C. 6925(b) ............................................................... 6

42 U.S.C. 6925(c)(3) ........................................................... 8

42 U.S.C. 6925(d) ............................................................... 9

42 U.S.C. 6926 .................................................................... 6

42 U.S.C. 6926(d) ............................................................. 30

42 U.S.C. 6926(f ).......................................................... 7, 19

42 U.S.C. 6961(a) ............................................................... 6

42 U.S.C. 6974(b) ............................................................. 19

42 U.S.C. 6974(b)(2) .......................................................... 7

42 U.S.C. 6976(b) ............................................................. 10

40 C.F.R.:

Pt. 124 ................................................................................. 6

Section 124.3(c) ...................................................... 8, 19

Section 124.3(d) ...................................................... 8, 19

Section 124.6(a) ...................................................... 7, 19

Section 124.6(e) ...................................................... 7, 19

Section 124.8(b)(5) ....................................................... 8

Section 124.9(b)(6) ....................................... 4, 9, 26, 28

VII

Regulations and rules—Continued:

Page

Sections 124.10-124.15 ................................................. 7

Section 124.14(b) .................................................... 8, 19

Section 124.15(a) .......................................................... 8

Section 124.17............................................................... 7

Section 124.17(a) .......................................................... 8

Section 124.19(l)(2) ........................................ 10, 19, 24

Pts. 260-271 ........................................................................ 6

Section 265.382 ........................................................... 12

Section 270.23............................................................. 12

Section 270.30(h) .......................................................... 8

Section 270.32............................................................. 12

Sections 270.41-270.42 ................................................. 8

Section 270.51(a) .................................................. 12, 23

Sections 271.13-271.14 ................................................. 7

22 Guam Admin. R. & Regs. Ch. 30 (2025) ........................... 7

Section 30109(a) ............................................................... 12

Section 30109(m) ............................................................. 12

Section 30109(n)............................................................... 12

Section 30110(a) ............................................................... 11

Section 30110(h)(b)(6) ..................................................... 10

Miscellaneous:

EPA, State Authorization under the Resource

Conservation and Recovery Act (RCRA)

(June 4, 2025), https://www.epa.gov/rcra/stateauthorization-under-resource-conservation-andrecovery-act-rcra .................................................................. 6

44 Fed. Reg. 34, 244 (June 14, 1979) .............................. 26, 28

45 Fed. Reg. 33,290 (May 19, 1980) ....................................... 9

52 Fed. Reg. 46,946 (Dec. 10, 1987) ..................................... 12

In the Supreme Court of the United States

No. #

UNITED STATES DEPARTMENT OF THE AIR FORCE,

ET AL., PETITIONERS

PRUTEHI GUAHAN

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General—on behalf of the United States

Department of the Air Force; Troy E. Meink, Secretary

of the Air Force; the United States Department of War;

and Pete Hegseth, Secretary of War—respectfully petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-74a)

is reported at 128 F.4th 1089. The order of the district

court (App., infra, 75a-91a) is available at 2022 WL

5246740.

JURISDICTION

The judgment of the court of appeals was entered on

February 13, 2025. A petition for rehearing was denied

on July 17, 2025 (App., infra, 92a-93a). On October 1,

(1)

2025, Justice Kagan extended the time within which to

file a petition for a writ of certiorari to and including

November 14, 2025. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Pertinent statutory and regulatory provisions are

reproduced in the appendix. App., infra, 94a-109a.

INTRODUCTION

Congress enacted and President Ford signed into

law the Resource Conservation and Recovery Act of

1976 (RCRA), 42 U.S.C. 6901 et seq., to provide comprehensive, cradle-to-grave regulation of hazardous waste.

RCRA’s rigorous substantive and procedural requirements include a mandatory permitting program for anyone, including a federal agency, that operates a facility

for the treatment, storage, or disposal of hazardous

waste. The United States Environmental Protection

Agency (EPA) has authorized nearly all States, the District of Columbia, and Guam to administer RCRA permitting programs in their respective jurisdictions, subject to the stringent safeguards of the federal statute

and EPA’s implementing regulations.

For more than four decades, the United States Air

Force has treated unexploded World War II-era ordnance and other potentially dangerous waste munitions at

Andersen Air Force Base, an isolated facility on Guam’s

northern coast. Beginning in 1982, the Air Force has

continuously held a RCRA permit for this facility. Since

then, in accordance with RCRA and governing EPA

regulations, the Air Force has periodically applied to

renew the permit, and the Guam Environmental Protection Agency (Guam EPA) has repeatedly granted renewal. The Air Force most recently applied for renewal

in 2021. Guam EPA has published a draft permit, solicited comments, and held a public hearing, but it has not

yet reached a final decision on the application.

In 2022, respondent filed this suit under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., challenging the Air Force’s still-pending permit-renewal application. Respondent does not contend that the Air

Force or Guam EPA failed to comply with RCRA in any

respect. Instead, its sole claim is that the Air Force’s submission of the 2021 permit-renewal application violated

the National Environmental Policy Act of 1969 (NEPA),

42 U.S.C. 4321 et seq., a purely procedural statute that

generally requires federal agencies to consider the environmental effects of their actions, but that does not

specifically address hazardous waste. Respondent asserts that before submitting its application to Guam EPA,

the Air Force should have first prepared a NEPA document called an Environmental Impact Statement (EIS)

or an Environmental Assessment (EA)—something

that the Air Force has never been asked to do for any of

its permit-renewal applications since 1982.

The district court dismissed the suit for multiple reasons, including that (1) the Air Force’s submission of a

permit-renewal application is not “final agency action”

reviewable under the APA, and (2) respondent’s challenge fails as a matter of law because RCRA’s specific

environmental-review provisions for hazardous-waste

permits preclude application of NEPA’s general

environmental-study provisions. But a divided panel of

the Ninth Circuit reversed on both issues and remanded

for the suit to go forward.

The Ninth Circuit’s rulings are inconsistent with

basic principles of administrative and environmental

law. On the APA issue, “submission of an application is

a far cry from final agency action.” App., infra, 52a

(VanDyke, J., dissenting). To be “final” under this

Court’s APA precedents, an action must both (a) mark

the consummation of an agency decisionmaking process

and (b) determine legal rights or obligations. The Air

Force’s submission of a permit-renewal application

does neither: It is simply the initial step of an ongoing

regulatory process, and it entails no meaningful legal

consequences until Guam EPA grants or withholds a

new permit. The panel majority’s contrary conclusion

“turns the prevailing understanding of final agency action on its head.” Id. at 70a.

On the merits, the Ninth Circuit likewise erred in

holding that federal agencies complying with RCRA,

which imposes its own detailed environmental-review

procedures in the specific context of hazardous-waste

treatment, must separately comply with NEPA’s general environmental-review procedures. As a matter of

statutory interpretation and common sense, the specific

governs the general. As the district court explained,

consideration of the two statutes at issue here compels

the conclusion that when the Air Force seeks a permit

renewal under RCRA, which “specifically deals with the

environmental issue at hand,” separate NEPA review

“would be redundant and a waste of resources.” App.,

infra, 89a. That sensible reading accords with EPA’s

longstanding regulation, adopted shortly after RCRA’s

enactment, providing that “all RCRA * * * permits are

not subject to the environmental impact statement provisions of * * * the National Environmental Policy

Act.” 40 C.F.R. 124.9(b)(6).

Each of these errors warrants this Court’s review.

The Ninth Circuit’s “sweeping” final-agency-action ruling “creates a conflict with precedent from * * * other

circuits” and “will have massive implications beyond

this case.” App., infra, 70a (VanDyke, J., dissenting).

The court’s refusal to harmonize RCRA and NEPA likewise conflicts with decisions of other circuits, which

have recognized that “Congress did not intend for EPA

to comply with NEPA when RCRA applies,” Alabama

ex rel. Siegelman v. EPA, 911 F.2d 499, 505 (11th Cir.

1990), and with longstanding Executive practice applying these statutes.

This Court recently rejected an interpretation of

NEPA that would “paralyze” agency decisionmaking

instead of properly “inform[ing]” it. Seven Cnty. Infrastructure Coal. v. Eagle Cnty., 145 S. Ct. 1497, 1507

(2025). Although this case presents issues different

from those that the Court resolved in Seven County, the

decision below likewise creates needless impediments

to agency operations. The Court should grant the petition for a writ of certiorari, resolve the circuit conflicts

created by the decision below, and reverse the Ninth

Circuit’s judgment.

STATEMENT

A. Legal Background

1. “RCRA is a comprehensive environmental statute

that governs the treatment, storage, and disposal of

solid and hazardous waste.” Meghrig v. KFC W., Inc.,

516 U.S. 479, 483 (1996). Through RCRA, the government “regulate[s] hazardous wastes from cradle to

grave, in accordance with the rigorous safeguards and

waste management procedures of [the statute].” City

of Chicago v. Environmental Def. Fund, 511 U.S. 328,

331 (1994).

A centerpiece of RCRA’s “stringent regulation” of

hazardous waste is its “permitting process.” Chicago,

511 U.S. at 332. This process is administered either by

EPA or by a State or Territory pursuant to EPA authorization. See 42 U.S.C. 6903(31), 6926; United States

Dep’t of Energy v. Ohio, 503 U.S. 607, 611-612 (1992)

(discussing States’ role in the scheme). Today, EPA has

authorized nearly all States, the District of Columbia,

and Guam to implement hazardous-waste programs under RCRA. See EPA, State Authorization under the Resource Conservation and Recovery Act (RCRA) (June

4, 2025), https://www.epa.gov/rcra/state-authorizationunder-resource-conservation-and-recovery-act-rcra; App.,

infra, 10a.

Regardless of which agency administers the process

at a particular site, anyone who owns, operates, or constructs any facility that treats, stores, or disposes of

hazardous waste must obtain a RCRA permit. See 42

U.S.C. 6925(a). That obligation extends to federal agencies, which must comply with RCRA requirements “both

substantive and procedural (including any requirement

for permits[)] * * * in the same manner, and to the

same extent, as any person is subject to such requirements.” 42 U.S.C. 6961(a); see Ohio, 503 U.S. at 627

(discussing this “federal-facilities section of RCRA”).

In addition to imposing substantive environmental

standards to ensure that hazardous-waste permits protect “human health and the environment,” 42 U.S.C.

6924(a), RCRA and its implementing regulations impose detailed procedural requirements, including extensive assessment of environmental impacts, for the

submission and review of permit applications. Each

permit application “shall contain such information” concerning various topics specified in the statute “as may

be required under” EPA’s implementing regulations.

42 U.S.C. 6925(b); see 40 C.F.R. Pts. 124, 260-270. For

example, applicants must “submit, among other things,

a ‘description of the processes to be used for treating,

storing, and disposing of hazardous waste’; ‘chemical

and physical analyses of the hazardous waste and hazardous debris to be handled at the facility’; and a ‘description of procedures, structures or equipment’ used

to prevent runoff, water contamination, atmospheric releases, and other hazards to the surrounding area and

personnel.” App., infra, 9a (brackets and citations omitted). And for the category of permit at issue in this case,

applicants “must also submit ‘detailed hydrologic, geologic, and meteorologic assessments’ that ‘address and

ensure compliance of the unit’ with certain environmental performance standards.” Id. at 10a (brackets and

citation omitted).

“Once an application is complete,” the permitting authority “shall tentatively decide whether to prepare a

draft permit.” 40 C.F.R. 124.6(a); see 40 C.F.R. 271.13271.14 (generally requiring state-level RCRA permitting authorities to comply with this and related EPA

regulations).1 If the permitting authority makes that

tentative decision, it must then provide public notice of

the “draft permit[]” that it has prepared, 40 C.F.R.

124.6(e), and, if requested by commenters, hold a “public hearing (including an opportunity for presentation of

written and oral views) on whether [it] should issue a

permit,” 42 U.S.C. 6974(b)(2); see 42 U.S.C. 6926(f ) (requiring state-level permitting authorities to provide information to the public); 40 C.F.R. 124.10-124.15, 124.17.

Guam EPA has adopted regulations that incorporate, either in

whole or in relevant part, various EPA regulations governing the

RCRA permitting process. See generally 22 Guam Admin. R. &

Regs. Ch. 30 (2025). For ease of reference, this petition generally

refers to EPA’s regulations, rather than the analogous provisions of

Guam EPA’s regulations, except as otherwise noted.

The permitting authority “may request additional information from an applicant” to “clarify, modify, or supplement previously submitted material” and may require

the applicant to “correct deficiencies in the application.”

40 C.F.R. 124.3(c) and (d). The permitting authority

also may “reopen[]” the comment period to request submission of additional material, and it may “modif [y]”

the draft permit and accompanying documents in response to new submissions. 40 C.F.R. 124.14(b). As

part of this process, the permitting authority may need

to provide, among other things, written “[r]easons why

any requested variances or alternatives to required

standards do or do not appear justified.” 40 C.F.R.

124.8(b)(5). And in issuing a “final permit decision,” including a “final decision to issue” or “deny” a permit,

the permitting authority must “issue a response to comments” and provide notice of the “procedures for appealing” that decision. 40 C.F.R. 124.15(a), 124.17(a).

If the permitting authority ultimately issues a permit, the authority retains power to “review[] and modify[] a permit at any time during its term.” 42 U.S.C.

6925(c)(3); see 40 C.F.R. 270.41-270.42 (providing for

permit modifications on the initiative of either the permitting authority or the permittee). All permittees

have a duty to provide “any relevant information which

the [permitting authority] may request” to “determine

compliance with th[e] permit,” as well as “copies of records” relating to the permit. 40 C.F.R. 270.30(h). In

considering “any application for a permit renewal,” the

permitting authority’s “[r]eview * * * shall consider

improvements in the state of control and measurement

technology as well as changes in applicable regulations.” 42 U.S.C. 6925(c)(3). The authority also “shall

revoke” a permit upon a determination of “noncompliance” with RCRA’s requirements. 42 U.S.C. 6925(d).

2. “NEPA is a purely procedural statute” that “imposes no substantive environmental obligations or restrictions.” Seven Cnty. Infrastructure Coal. v. Eagle

Cnty., 145 S. Ct. 1497, 1507 (2025). In general, NEPA

“simply requires an agency to prepare” a “report” to

“weigh environmental consequences” of “certain infrastructure projects that are built, funded, or approved by

the Federal Government.” Id. at 1507, 1510; see NEPA

§ 102(2)(C), 83 Stat. 853 (42 U.S.C. 4332(2)(C)). Under

NEPA, some projects require the relevant agency to

prepare a “detailed statement” called an EIS, while

other projects are “categorically excluded from the requirement to produce an EIS,” and still others require

preparation only of “a more limited document, an [EA].”

Department of Transp. v. Public Citizen, 541 U.S. 752,

757 (2004); see 42 U.S.C. 4336(a)(2), (b)(1) and (2) (Supp.

V 2023).2

An EPA regulation provides that “all RCRA * * *

permits” (among others) “are not subject to the environmental impact statement provisions of section

102(2)(C) of the National Environmental Policy Act.”

40 C.F.R. 124.9(b)(6). EPA adopted this regulatory

provision shortly after RCRA was enacted, 45 Fed. Reg.

In 2023 Congress amended NEPA to clarify the appropriate

scope of the required review. See Fiscal Responsibility Act of 2023,

Pub. L. No. 118-5, Div. C, Tit. III, § 321, 137 Stat. 38. In this case

involving pre-2023 events, the court of appeals applied the pre-2023

version of NEPA. App., infra, 5a n.3. The 2023 amendments, which

“reinforce[d] the basic principles that NEPA, correctly interpreted,

already embodied,” Seven County, 145 S. Ct. at 1512 n.3, are not

directly relevant to the questions presented in this petition, except

as otherwise noted below.

33,290, 33,488 (May 19, 1980), and the agency has not

altered it since.3

3. The APA provides: “Agency action made reviewable by statute and final agency action for which there

is no other adequate remedy in a court are subject to

judicial review.” 5 U.S.C. 704. “As a general matter,

two conditions must be satisfied for agency action to be

‘final’ ” under the APA. Bennett v. Spear, 520 U.S. 154,

177 (1997). “First, the action must mark the ‘consummation’ of the agency’s decisionmaking process—it

must not be of a merely tentative or interlocutory nature.” Id. at 177-178 (citation omitted). “And second, the

action must be one by which ‘rights or obligations have

been determined,’ or from which ‘legal consequences

will flow.’ ” Id. at 178 (citation omitted); see United

States Army Corps of Eng’rs v. Hawkes Co., 578 U.S.

590, 597 (2016) (reaffirming Bennett’s “two conditions”

for final agency action).

RCRA expressly incorporates the APA’s judicialreview provisions, “sections 701 through 706 of Title 5,”

for review of RCRA permitting decisions by EPA. 42

U.S.C. 6976(b); see pp. 5-6, supra. In those circumstances, RCRA provides that an interested person may

obtain review in an appropriate court of appeals of

EPA’s action “issuing, denying, modifying, or revoking

any permit.” 42 U.S.C. 6976(b). EPA’s regulation implementing this provision specifies that, “[f ]or purposes

of judicial review” in accordance with 5 U.S.C. 704, “final

agency action on a permit occurs when agency review procedures * * * are exhausted and [EPA] subsequently

issues a final permit decision.” 40 C.F.R. 124.19(l)(2).

When a State or Territory is the RCRA permitting auGuam EPA’s regulations do not expressly incorporate this provision. See 22 Guam Admin. R. & Regs. § 30110(h)(b)(6) (2025).

thority, however, RCRA’s statutory judicial-review provision and its implementing EPA regulation do not directly

apply. See pp. 6-7 & n.1, supra; 22 Guam Admin. R. &

Regs. § 30110(a) (2025).

B. Facts

1. Guam is an island in the west central Pacific

Ocean, located about 3800 miles west of Hawaii. The

United States acquired the island from Spain in 1898,

after the Spanish-American War. For the next half century, except for a Japanese occupation from 1941 to

1944, Guam remained under the jurisdiction of the

United States Navy. See Ngiraingas v. Sanchez, 495

U.S. 182, 186 (1990). In 1950, Congress transferred jurisdiction from the Navy to a new civilian government

and established Guam as an unincorporated Territory.

Organic Act of Guam, ch. 512, 64 Stat. 384.

This case concerns treatment of waste military munitions on Guam, including potentially dangerous munitions

that must be quickly destroyed. To render these explosive materials harmless, the United States Air Force

has since the early 1980s operated a waste-treatment

facility at Andersen Air Force Base, on the northeastern coast of the island. See C.A. S.E.R. 150. The facility

is bounded to the north by the Pacific Ocean, with a

“continuous reef line approximately 200 feet off shore”

that blocks access by sea, and in other directions by

“natural barriers” including “dense jungle growth” and

“tremendous[ly]” steep limestone formations that “prevent any person from accessing” the facility inadvertently. Id. at 477. On shore, the facility is “totally enclosed” within the Air Force base, surrounded by a

“2,400 foot-radius safety zone,” and the “nearest public

or private property is several miles off base.” Id. at 390,

477; see id. at 152, 575-576 (maps). This isolated loca-

tion limits human exposure to material at the facility.

See id. at 651.

The facility “has been in constant use since its inception,” C.A. S.E.R. 33, and the Air Force has “estimated

that [it] will be operated until the Air Force Base ceases

operation,” id. at 154. The Air Force has used the facility to treat waste using open detonation (OD) and open

burning (OB) processes. These operations involve placing ordnance or munitions in a pit (for OD) or a burn

kettle (for OB), along with any needed explosive or

flammable materials, and then remotely initiating ignition from a bunker. See id. at 390. For both forms of

waste treatment, EPA has promulgated regulations requiring “(1) that units be operated in a manner that does

not threaten human health and the environment and

(2) that a minimum safe distance from other properties

be maintained when waste explosives are disposed of by

open burning or open detonation.” 52 Fed. Reg. 46,946,

46,952 (Dec. 10, 1987); see 40 C.F.R. 265.382, 270.23,

270.32.

2. Guam EPA administers the RCRA permitting

program in the Territory pursuant to longstanding federal authorization. See p. 6, supra. Guam EPA requires

permittees to submit permit-renewal applications every

three years. 22 Guam Admin. R. & Regs. § 30109(m)

and (n) (2025). It has also adopted a federal regulation

providing that when a permittee timely applies for renewal, its “expired permit continue[s] in force * * * until

the effective date of a new permit.” 40 C.F.R. 270.51(a);

see 22 Guam Admin. R. & Regs. § 30109(a) (2025); p. 7

n.1, supra.4

The APA similarly provides: “When [a] licensee has made

timely and sufficient application for a renewal or a new license in

The Air Force first received a RCRA permit for operations at the Andersen facility in 1982. C.A. E.R. 108.

The permit authorizes OB/OD operations at the facility

to treat hazardous waste, subject to specified processes

and environmental performance standards. C.A. S.E.R.

391, 582-597. Pursuant to the governing regulations,

the Air Force has periodically submitted renewal applications for this permit, and Guam EPA has repeatedly

granted those applications over more than three decades. See C.A. E.R. 108. Consistent with the governing

regulations, see pp. 5-11, supra, the Air Force has not

separately completed NEPA review before submitting

any of these RCRA permit-renewal applications.

3. The Air Force most recently applied to renew the

facility’s RCRA permit in May 2021. The application

(including the requested permit) is more than 350 pages

long, and it requests a permit almost identical to the existing permit. Compare C.A. S.E.R. 2-355 (2021 permit

application), with id. at 359-713 (2018 permit application). Pursuant to RCRA and the governing regulations,

both the Air Force’s 2021 application and Guam EPA’s

existing permit address various environmental considerations, including required protections for human

health and the environment, potential contamination

and residues, a plan to achieve clean closure, required

maintenance of a groundwater monitoring program,

and a biological mitigation plan to protect wildlife. Id.

at 33-43, 149-215, 240-254, 278-354. The application also

discusses potential alternatives to the waste-treatment

processes currently used at the facility. The application

accordance with agency rules, a license with reference to an activity

of a continuing nature does not expire until the application has been

finally determined by the agency.” 5 U.S.C. 558(c); see Costle v.

Pacific Legal Found., 445 U.S. 198, 210 n.10 (1980).

explains that because the identified alternatives are

generally “years away” from viability, with the quality

of their safety standards “not verified,” they do not currently constitute a “viable alternative” to the “simple”

and “very safe” processes previously approved by Guam

EPA. Id. at 225-226.

Guam EPA took the Air Force’s permit-renewal application under consideration. Guam EPA published a

draft permit and provided a 45-day public comment period on the draft, as well as a public hearing. See C.A.

S.E.R. 714. In October 2021, Guam EPA informed the

Air Force that it had not yet reached a final decision on

the application, which it was continuing to review in

light of comments received from the public. Ibid. Because Guam EPA has not yet taken final action on the

permit-renewal application, the prior permit’s terms

and conditions continue in force pending further action

by Guam EPA. See ibid.; p. 12 & n.4, supra.

C. Proceedings Below

1. Respondent Prutehi Guahan, a nonprofit corporation formerly known as Prutehi Litekyan: Save Ritidian, filed this suit in 2022 against the Departments and

Secretaries of the Air Force and of War. See App., infra, 75a-76a. Respondent pleaded one claim for relief,

alleging that the government’s “decision to submit the

May 21, 2021 application for renewal” of the RCRA permit “violates NEPA” because the government did not

“first prepar[e] a legally adequate EA or EIS.” C.A.

E.R. 113; see id. at 112.

The district court granted the government’s motion

to dismiss on multiple grounds. App., infra, 75a-91a.

As relevant here, the court held that respondent’s challenge was not justiciable because the Air Force’s submission of a permit-renewal application, which Guam

EPA had not yet ruled on, was not “final agency action”

under the APA. Id. at 81a-82a.

In the alternative, the district court ruled that the

complaint should be dismissed for failure to state a

claim because the “issue specific” provisions of RCRA,

a “comprehensive environmental statute on hazardous

waste,” preclude the application to this context of

NEPA’s general requirements. App., infra, 82a; see id.

at 82a-90a. In applying the interpretive principle that

“specific statutes prevail over general statutes dealing

with the same basic subjects,” the court followed the

“instructive” reasoning of Eleventh Circuit precedent

“specifically address[ing]” the interaction between

RCRA and NEPA, as well as the “consistent positions”

of “other circuits” addressing specialized environmental legislation analogous to RCRA. Id. at 88a-89a (citing, inter alia, Alabama ex rel. Siegelman v. EPA, 911

F.2d 499, 505 (11th Cir. 1990)).

2. A divided panel of the Ninth Circuit reversed and

remanded. App., infra, 1a-74a.

a. As relevant here, the court of appeals held that

the Air Force’s “decision to apply for a RCRA permit”

renewal in 2021 was final agency action immediately reviewable under the APA because that decision “reflected the agency’s commitment to a particular location

for and method of waste munitions disposal.” App., infra,

3a; see id. at 19a-33a. The court determined that the

application met both requirements for final agency action identified in Bennett. As to Bennett’s first prong,

the court concluded that the Air Force had “reached the

‘consummation’ of its decisionmaking process when it

filed its permit application.” Id. at 22a. The court viewed

the application as reflecting that agency’s concluded

view as to appropriate “OB/OD operations at” the designated waste-treatment site. Id. at 23a.

As to Bennett’s second prong, the court of appeals

concluded that the Air Force’s decision to submit the

permit-renewal application “imposes a legal obligation

upon the agency.” App., infra, 29a. The court explained: “Should Guam EPA issue the Air Force a renewal permit, the permit’s terms and conditions will be

predicated on the representations made and the disposal plans set forth in the Air Force’s application.”

Ibid. The court further observed that, “if Guam EPA

denies the permit, that too would impose a legal consequence flowing from the Air Force’s waste disposal

plan—the obligation not to conduct waste disposal in accord with the decision reached before the application

was submitted.” Ibid.

b. The court of appeals also held that RCRA review

does not preclude NEPA review in this context, and that

the Air Force therefore was required to comply with

NEPA’s environmental-review process before submitting its RCRA permit-renewal application. App., infra,

33a-46a. The court acknowledged that “an alternative

statute may displace NEPA’s procedural requirements

by creating a comparable process for ensuring environmental protection.” Id. at 35a (brackets, citation, and

internal quotation marks omitted). It further acknowledged that there is “some overlap between NEPA’s procedural requirements” and the “RCRA permitting process,” both of which “require some analysis of the environmental impact of a proposed action and some degree

of public involvement.” Id. at 37a. But the court concluded that “NEPA and RCRA are fundamentall[y] dissimilar,” id. at 41a, largely because the court found it

“critical[]” that “the timing of each statute’s prescribed

review is entirely distinct,” id. at 37a. The court explained that NEPA (as the court construed it) required

the Air Force to prepare an environmental analysis before deciding to submit a permit application, see id. at

37a-38a, whereas Guam EPA’s RCRA review of that application would occur after that decision had been made,

see id. at 38a-39a.

The court of appeals acknowledged the Eleventh

Circuit’s holding in Siegelman that when EPA considers applications for RCRA permits, that agency “need

not comply with NEPA because RCRA provides substantially similar requirements.” App., infra, 40a. The

court also acknowledged similar holdings of “[o]ther circuit courts” that specific environmental statutes preclude application of NEPA requirements to the covered

contexts. Ibid. But the Ninth Circuit viewed those

cases as distinguishable on the ground that they involved federal “agencies whose focus is protecting the

environment.” Ibid. The court observed that neither

the Air Force nor its parent agency “is engaged primarily in an examination of environmental questions.” Id.

at 41a (citation and internal quotation marks omitted).

c. Judge VanDyke dissented. App., infra, 46a-74a.

He concluded that “submission of an application is a far

cry from final agency action,” id. at 52a, and that the

renewal application here did not satisfy either of the

Bennett conditions. Judge VanDyke explained that the

renewal application “only initiated a permit process

that would allow [petitioners] to continue their longstanding OB/OD operations,” id. at 54a, and that the application determined “no legal rights or obligations,” as “underscore[d]” by the majority’s use of “conditional language” to describe the “contingent future event” of

Guam EPA’s grant or denial of the pending application,

id. at 65a. Judge VanDyke criticized the majority’s contrary ruling as a “sweeping decision” that “turns the

prevailing understanding of final agency action on its

head,” “creates a conflict with precedent from * * *

other circuits,” and “will have massive implications beyond this case” because it threatens to subject “each

and every permit application” to immediate APA review. Id. at 70a.

Because Judge VanDyke would have affirmed the

district court’s dismissal of the suit for lack of final

agency action, he did not address “whether the RCRA

permitting requirements have displaced NEPA in the

context of RCRA permitting.” App., infra, 47a n.1.

3. The court of appeals denied the government’s petition for rehearing en banc, again over Judge VanDyke’s dissent. App., infra, 92a-93a.

REASONS FOR GRANTING THE PETITION

This case presents two significant questions concerning the scope and timing of judicial and administrative review under RCRA. The Ninth Circuit erred both in holding that the submission of an application to renew a RCRA

permit is final agency action, and in holding that an

agency complying with RCRA’s specific environmentalreview provisions for hazardous-waste treatment must

separately comply with NEPA’s general environmentalreview provisions. On both issues, the Ninth Circuit’s

reasoning misapplies this Court’s precedent and conflicts with decisions of other courts of appeals. If left

uncorrected, the decision below threatens to burden the

military, other agencies, and federal courts with premature, wasteful, and duplicative proceedings that Congress never contemplated. The Court should grant the

petition for a writ of certiorari and reverse the court of

appeals’ judgment.

A. The Ninth Circuit’s Decision Is Incorrect

1. Applying for renewal of a permit is not final agency

action

To be “final agency action” subject to immediate judicial review under 5 U.S.C. 704, an agency pronouncement (a) “must mark the consummation of the agency’s

decisionmaking process” and (b) “must be one by which

rights or obligations have been determined, or from

which legal consequences will flow.” Bennett v. Spear,

520 U.S. 154, 177-178 (1997) (citations and internal quotation marks omitted). This limited category may include a final regulation, a final order at the conclusion

of an agency adjudication, or—as most relevant here—

a final decision to grant or deny a permit. See 40 C.F.R.

124.19(l)(2). The mere submission of a permit-renewal

application, by contrast, satisfies neither of the Bennett

conditions and therefore “is a far cry from final agency

action.” App., infra, 52a (VanDyke, J., dissenting).

a. The Air Force’s 2021 permit-renewal application

does not satisfy Bennett’s first prerequisite to “final

agency action.” The renewal application initiated an administrative process through which a different agency

(here Guam EPA) will determine whether and on what

conditions a permit will be granted. After receiving the

application, Guam EPA “tentatively decide[d] whether

to prepare a draft permit,” 40 C.F.R. 124.6(a), and gave

the public an opportunity to comment on that tentative

decision, 40 C.F.R. 124.6(e); see 42 U.S.C. 6926(f ),

6974(b). As Guam EPA continues to evaluate the renewal application, the Air Force will remain actively engaged and may be asked to take additional steps or

make additional submissions, including potential corrections to the application or changes to mitigation. See

pp. 7-8, supra (citing 40 C.F.R. 124.3(c) and (d), 124.14(b));

C.A. S.E.R. 714 (acknowledging that Guam EPA “has

been working with [the Air Force] during the permit application process” here).

Submission of the 2021 permit-renewal application

thus did not “mark the consummation” even of the Air

Force’s own decisionmaking process, Bennett, 520 U.S.

at 178 (citation and internal quotation marks omitted),

since the application triggered an iterative process—

one that involves the Air Force, Guam EPA, and any

members of the public who comment on Guam EPA’s

tentative decision whether to prepare a draft permit—

through which Guam EPA may request that the Air

Force revise or supplement that application. And the

Air Force’s submission of the application marked the

beginning, not the end, of the process by which Guam

EPA will decide whether the permit should be renewed.

The Air Force’s renewal request therefore was not the

“ ‘consummation’ ” of any relevant agency decisionmaking process, but was merely an “interlocutory” step

along the way. Ibid. (citation omitted).

b. i. The Air Force’s submission to Guam EPA of a

permit-renewal application also does not satisfy Bennett’s

second requirement because the application imposes no

“direct and appreciable legal consequences.” 520 U.S.

at 178. Rather, the relevant legal consequences—i.e.,

the authorization for the Air Force to engage in wastetreatment activities that RCRA would otherwise prohibit—flow either from Guam EPA’s prior approval of

the existing permit or from Guam EPA’s subsequent action on the pending application. The application is not

itself a permit, and standing alone it authorizes nothing

under the governing RCRA provisions. See pp. 5-9,

supra.

The permit-renewal application thus resembles other

agency submissions that this Court has held to be not

immediately reviewable because they do not impose direct legal consequences, but merely inform a subsequent decision (often, as here, a decision made by a different entity) that will have operative legal effect. In

Franklin v. Massachusetts, 505 U.S. 788 (1992), for example, the Court held that an agency’s submission of a

census report to the President was not final agency action because, under the governing statutory scheme,

the report “ha[d] no direct effect on reapportionment

until the President takes affirmative steps to calculate

and transmit the apportionment to Congress.” Id. at

799. And in Dalton v. Specter, 511 U.S. 462 (1994), the

Court held that agencies’ submissions of reports recommending military base closures were not final agency

actions because—as the Court deemed “crucial”—the

reports “ ‘carr[ied] no direct consequences’ ” absent subsequent presidential approval, which was the only “action that ‘will directly affect’ the military bases” at issue. Id. at 469-470 (quoting Franklin, 505 U.S. at 797798). Similarly here, “[b]ecause the [Air Force’s application] to [Guam EPA] carries no direct consequences”

absent further action by that separate actor, the application “serves more like a tentative recommendation

than a final and binding determination.” Franklin, 505

U.S. at 798.

ii. The Ninth Circuit’s contrary approach was not

faithful to this Court’s precedents. The court of appeals

asserted that the Air Force’s application “imposes a legal obligation upon the agency.” App., infra, 29a. The

court based that conclusion on the fact that either a

grant or a denial of the renewal application by Guam

EPA would have significant legal consequences for the

Air Force. The court explained that “if Guam EPA issues a permit, the Air Force will not be able to deviate

unilaterally from the [permit] conditions”; whereas “if

Guam EPA denies the permit,” its decision will impose

on the Air Force “the obligation not to conduct waste

disposal.” Ibid.

Neither of these downstream consequences, however, is a “ ‘direct and immediate’ ” effect of the application itself. Franklin, 505 U.S. at 797 (quoting Abbott

Labs. v. Gardner, 387 U.S. 136, 152 (1967)). To the contrary, the stark differences between the legal consequences of a permit grant and the legal consequences of

a permit denial highlight the fact that it is Guam EPA’s

disposition of the permit-renewal application, not the

Air Force’s submission of it, that determines legal

“rights or obligations.” Bennett, 520 U.S. at 178. As

Judge VanDyke observed in dissent, the Ninth Circuit’s

“use of contingent language underscores the problem

with the majority’s reasoning.” App., infra, 65a.

The Ninth Circuit further erred in asserting that the

permit-renewal application here is “closely analogous to

the agency action at issue in Bennett.” App., infra, 30a.

Unlike the application submitted by the Air Force, the

Fish and Wildlife Service’s Biological Opinion in Bennett “constitute[d] a permit” in its own right, because it

directly “authoriz[ed]” another agency to take an endangered species under specified terms and so had the

“direct and appreciable legal consequences” of “alter[ing] the legal regime to which the action agency [was]

subject.” 520 U.S. at 170, 178; see 16 U.S.C. 1536(o)(2).

Indeed, the governing statute put the agency and its

employees at the “peril” of “substantial civil and criminal penalties, including imprisonment,” if they did not

follow the Biological Opinion. Bennett, 520 U.S. at 170.

The Air Force’s mere application to renew a RCRA permit shares none of these characteristics, which marked

the “crucial respect” in which the Bennett Court distinguished Franklin and Dalton (decisions that the Ninth

Circuit did not address here). Id. at 178.

The Ninth Circuit also stated that, because the Air

Force’s timely renewal application allowed the 2018

permit to “continue in force” while Guam EPA considers the renewal application, 40 C.F.R. 270.51(a); see

p. 14, supra, the Air Force’s decision to seek renewal

“had the legal consequence of prolonging the life of [the

Air Force’s] 2018 permit,” App., infra, 31a n.9. But the

mere continuation in effect of the 2018 permit, which respondent has not challenged (see id. at 65a, 67a-71a

(VanDyke, J., dissenting)), does not “determine[]” any

legal “rights or obligations.” Bennett, 520 U.S. at 178

(citation omitted); cf. FTC v. Standard Oil Co., 449 U.S.

232, 242 (1980) (holding that federal agency’s issuance of

an administrative complaint was not “final agency action,” even though the complaint “impose[d] upon [the

charged party] the burden of responding to the charges

against it”). And the duration of any tolling largely depends on Guam EPA’s choice to withhold “final decision” on the Air Force’s renewal application. C.A. S.E.R.

714. In addition, the EPA and Guam EPA regulations

that prevent permit expiration here simply incorporate

a generally applicable tolling rule prescribed by the

APA. See 5 U.S.C. 558(c); p. 12 & n.4, supra. Treating

this effect as a sufficient basis for immediate judicial review therefore would (implausibly) suggest that every

permit-renewal application is “final agency action”—

despite EPA’s regulation providing that, when EPA is

the permitting authority, “final agency action on a per-

mit occurs when” EPA “issues a final permit decision.”

40 C.F.R. 124.19(l)(2); see p. 10, supra.

2. RCRA’s environmental-review requirements preclude any requirement to conduct NEPA review in

this context

On the merits, the Ninth Circuit erred in requiring the

Air Force to conduct a NEPA review before initiating

the permit-renewal process under RCRA. App., infra,

33a-46a.5

a. RCRA’s specific provisions for environmental review as part of the hazardous-waste permitting process

preclude the application to this context of NEPA’s more

general environmental-review requirements. “It is a

commonplace of statutory construction that the specific

governs the general.” RadLAX Gateway Hotel, LLC v.

Amalgamated Bank, 566 U.S. 639, 645 (2012) (quoting

Morales v. Trans World Airlines, Inc., 504 U.S. 374,

384 (1992)) (brackets omitted). “That is particularly

true where,” as in RCRA, “ ‘Congress has enacted a

comprehensive scheme.’ ” Ibid. (quoting Varity Corp. v.

Howe, 516 U.S. 489, 519 (1996) (Thomas, J., dissenting)).

Here, the statutory structure and context give no reason

to “believe Congress intended to undermine” RCRA’s

“carefully drawn statute” through NEPA’s “general”

The Fiscal Responsibility Act of 2023, enacted after the events

at issue in this case (see p. 9 n.2, supra), amended NEPA by adding

Section 106(a)(1), which codified the Executive Branch’s longstanding position that a federal agency need not prepare an EIS or EA

when “the proposed agency action is not a final agency action within

the meaning of ” the APA. 137 Stat. 39 (42 U.S.C. 4336(a)(1)). Accordingly, a holding by this Court that a RCRA permit-renewal application is not final agency action (the first question presented

here) would independently establish that no NEPA review is required for future applications.

provisions. Morales, 504 U.S. at 385 (quoting International Paper Co. v. Ouellette, 479 U.S. 481, 494 (1987)).

As explained (pp. 5-9, supra), RCRA is a “comprehensive environmental statute” that regulates hazardous waste “from cradle to grave.” City of Chicago v.

Environmental Def. Fund, 511 U.S. 328, 331 (1994).

The statute’s “rigorous safeguards and waste management procedures,” ibid., include “substantive and procedural standards” designed to “ensure that EPA” or

its delegate “considers fully, with the assistance of

meaningful public comment, environmental issues involved in the permitting of hazardous waste management facilities,” Alabama ex rel. Siegelman v. EPA, 911

F.2d 499, 505 (11th Cir. 1990). Indeed, the entire reason

to submit a permit-renewal application is to comply (and

to assist the permitting agency in complying) with

RCRA and its specialized procedures for considering

environmental and public-health issues.

Because “RCRA is comprehensive in its field of application,” it is the “equivalent and more specific counterpart

of NEPA” in the particular context of hazardous-waste

treatment. Siegelman, 911 F.2d at 505. Like other specialized legislation that “ ‘mandates specific procedures

for considering the environment’ ” in a particular context, RCRA already “cover[s] the core NEPA concerns”

through a “ ‘functional equivalent[] of the impact statement process.’ ” Western Neb. Res. Council v. EPA, 943

F.2d 867, 871-872 (8th Cir. 1991) (citation omitted).

Thus, the “traditional view that specific statutes prevail

over general statutes dealing with the same basic subjects” implies that “Congress did not intend” for a federal agency “to comply with NEPA when RCRA applies.” Siegelman, 911 F.2d at 504-505; accord App., infra, 82a-90a (district-court decision below).

Regulatory history and practice bolster this conclusion. Shortly after RCRA’s enactment, EPA promulgated a regulation stating that “all RCRA * * * permits” (among others) “are not subject to the environmental impact statement provisions of section 102(2)(C)

of the National Environmental Policy Act.” 40 C.F.R.

124.9(b)(6); see Siegelman, 911 F.2d at 502 & n.6. EPA

explained that the RCRA permitting regime’s “extensive procedures, including public participation for evaluation [of ] environmental issues, constitute[] the functional equivalent of NEPA’s requirements,” and that

the permitting process “fully allows and encourages involvement of the public in [RCRA] decision making.” 44

Fed. Reg. 34,244, 34,247, 34,254 (June 14, 1979) (citing,

inter alia, Portland Cement Ass’n v. Ruckelshaus, 486

F.2d 375 (D.C. Cir. 1973), cert. denied, 417 U.S. 921

(1974)). The regulation codifying this view has remained

in force for 45 years. See pp. 9-10, supra. Because EPA’s

interpretation was “issued contemporaneously with the

statute” and has “remained consistent over time,” it is

“especially useful in determining the statute’s meaning.” Loper Bright Enters. v. Raimondo, 603 U.S. 369,

394 (2024).

b. The Ninth Circuit did not identify sound countervailing reasons to overcome the general/specific canon’s

“strong indication,” RadLAX, 566 U.S. at 646, that

RCRA precludes any requirement to perform NEPA

review. The court of appeals correctly acknowledged

that some specific statutes—such as the Clean Water

Act, 33 U.S.C. 1251 et seq., the Endangered Species Act

of 1973, 16 U.S.C. 1531 et seq., and the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136

et seq.—“displace[]” NEPA review in other contexts.

App., infra, 35a-36a; see id. at 34a (recognizing that

NEPA is also rendered inapplicable by “conflict” with

other statutes) (citing Flint Ridge Dev. Co. v. Scenic

Rivers Ass’n, 426 U.S. 776 (1976)). The court also

acknowledged “overlap between NEPA’s procedural

requirements and Guam EPA’s RCRA permitting process: Both require some analysis of the environmental

impact of a proposed action and some degree of public

involvement.” Id. at 37a.

In explaining its contrary conclusion here, the Ninth

Circuit judged it “critical[]” that “the timing of each

statute’s prescribed environmental review is entirely

distinct.” App., infra, 37a. The court viewed NEPA as

requiring the Air Force to consider environmental effects before it submits a permit or permit-renewal application, and viewed RCRA as governing the permitting agency’s processes after an application has been

submitted. Id. at 37a-39a; see pp. 16-17, supra. But in

fact, RCRA and EPA’s implementing regulations do not

simply govern the permitting agency’s post-application

conduct; they prescribe in detail the required contents

of a permit application. See pp. 5-9, supra. Subjecting

the applicant to additional NEPA requirements thus

would impose the very burdens and inefficiencies that

the general/specific canon is intended to prevent.

The fact that RCRA’s review procedure is not “literal[ly]” identical to NEPA’s is a reason to apply the

general/specific canon, Siegelman, 911 F.2d at 505, not

a reason to disregard it. “The RCRA permitting procedures ‘strike a workable balance between some of the

advantages and disadvantages of full application of

NEPA’ ” in a scheme tailored to meet the distinctive

needs of hazardous-waste regulation. Ibid. (quoting

Portland Cement, 486 F.2d at 386). Congress did not

require an agency complying fully with RCRA to “stop

in the middle of its proceedings in order to issue a separate and distinct impact statement just to be issuing

it.” Ibid. (quoting Wyoming v. Hathaway, 525 F.2d 66,

71-72 (10th Cir. 1975), cert. denied, 426 U.S. 906 (1976)).

Indeed, because the sole purpose of the permit-renewal

proceeding here is to implement RCRA’s hazardouswaste-specific requirements, it would be especially

strange to subject that permitting process to additional

requirements imposed by a more general environmental statute.

The Ninth Circuit also did not meaningfully address

the Executive’s longstanding position that RCRA’s specific review provisions preclude any requirement to conduct NEPA review. See pp. 9-10, supra. The court

acknowledged EPA’s regulation (40 C.F.R. 124.9(b)(6))

providing that “all RCRA * * * permits are not subject

to” NEPA review. See App., infra, 42a. The court asserted, however, that the regulation applies only to

EPA’s actions as a RCRA permitting agency, not to

other federal agencies’ submissions of RCRA permit

applications. Id. at 42a-43a & n.11. But the insight that

separate NEPA review is unnecessary because RCRA’s

“permitting process” itself “fully allows and encourages

involvement of the public in [RCRA] decision making,”

44 Fed. Reg. at 34,254, applies with equal or greater

force to agencies applying for permits through the same

process. If EPA need not conduct a NEPA review before it grants a RCRA permit—an action that has operative legal consequences—there is no sound reason to

require such review when another federal agency

simply applies for a permit. The conclusion that NEPA

review is not required here thus follows a fortiori from

EPA’s longstanding regulation.

B. The Decision Below Warrants Further Review

1. The Ninth Circuit’s decision cannot be squared

with the decisions of other courts of appeals.

a. In holding that the Air Force’s permit-renewal

application is final agency action, the Ninth Circuit

“create[d] a conflict with precedent from * * * other

circuits.” App., infra, 70a (VanDyke, J., dissenting). In

particular, the decision below conflicts with precedents

of other circuits holding that agency actions are not final where “a separate actor” (here Guam EPA) “must

take an additional action to create” any legal consequence. Chemours Co. FC, LLC v. EPA, 109 F.4th 179,

185 (3d Cir. 2024); see California Cmtys. Against Toxics v. EPA, 934 F.3d 627, 636-637 (D.C. Cir. 2019) (holding that EPA guidance document was not final because

any legal consequences were “only determined within

the [Clean Air Act] permitting process,” which had not

yet concluded); Sierra Club v. EPA, 955 F.3d 56, 63

(D.C. Cir. 2020) (similar). The Ninth Circuit did not

identify any other circuit precedent, and we are aware

of none, that has treated a permit application as final

agency action. And Judge VanDyke correctly explained

that the court’s approach to finality conflicts with additional decisions of other circuits. App., infra, 59a-61a

(citing Village of Bald Head Island v. United States

Army Corps of Eng’rs, 714 F.3d 186 (4th Cir. 2013);

Chemical Weapons Working Grp., Inc. v. United States

Dep’t of the Army, 111 F.3d 1485 (10th Cir. 1997)).

b. The Ninth Circuit’s refusal to harmonize RCRA’s

specific mandates with NEPA’s general requirements

also conflicts with decisions of other circuits. That approach particularly contravenes the Eleventh Circuit’s

holding that “Congress did not intend for EPA to comply with NEPA when RCRA applies to the particular

EPA activity.” Siegelman, 911 F.2d at 505. As explained

(see pp. 24-26, supra), that understanding of the proper

harmonization of RCRA and NEPA logically applies to

the Air Force’s application to renew its RCRA permit.

Nor can the merits ruling below be squared with the

substantial body of circuit-court precedent (which underlay the Siegelman court’s RCRA analysis, see 911

F.2d at 505 n.12) holding that other specific environmental statutes displace NEPA’s more general requirements.6 The Ninth Circuit described those decisions as

“almost exclusively limit[ing] NEPA redundancy exemptions to agencies [like EPA] whose focus is protecting the

environment.” App., infra, 40a. But as explained (see

p. 28, supra), if the agency that will ultimately grant or

deny a permit is not subject to NEPA’s more general

environmental-review requirements, there is no sound

reason to impose those requirements on permit applicants. And the only reason EPA is not directly involved

in reviewing the Air Force’s renewal application is that

EPA previously authorized a different environmental

regulator, Guam EPA, to make permitting decisions that

will have “the same force and effect as action taken by the

U.S. EPA.” App., infra, 84a (citing 42 U.S.C. 6926(d)).

The Ninth Circuit’s reasoning indisputably requires the

preparation of NEPA analyses in circumstances where

no other court of appeals has required them.

See, e.g., Portland Cement, 486 F.2d at 384; South Terminal

Corp. v. EPA, 504 F.2d 646, 676 (1st Cir. 1974); Limerick Ecology

Action, Inc. v. United States Nuclear Regulatory Comm’n, 869 F.2d

719, 729 n.7 (3d Cir. 1989); Appalachian Power Co. v. EPA, 477 F.2d

495, 508 (4th Cir. 1973), abrogated on other grounds by Union Elec.

Co. v. EPA, 427 U.S. 246 (1976); Pacific Legal Found. v. Andrus,

657 F.2d 829, 835 (6th Cir. 1981); Indiana & Mich. Elec. Co. v. EPA,

509 F.2d 839, 842 (7th Cir. 1975); Western Nebraska, 943 F.2d at

871-872; Hathaway, 525 F.2d at 71.

2. The Ninth Circuit’s rulings threaten to inflict significant burdens on both federal courts and federal

agencies in the form of premature and duplicative judicial and administrative proceedings, and to impede

state and federal agencies’ performance of their permitting responsibilities. In addition to RCRA, many other

environmental and natural-resources statutes require

permittees to apply for renewal of permits on a periodic

basis. The Department of War, for example, must periodically seek renewal of 2500 environmental permits

within the Ninth Circuit alone. Many other federal

agencies also must periodically apply for renewal of

such permits. And many federal facilities require multiple permits or similar authorizations, including Clean

Water Act permits and certifications from state agencies.

The Executive Branch generally has not engaged in

NEPA analysis before submitting permit-renewal applications. The federal courts (other than the court below) likewise have not entertained lawsuits challenging

agency permit applications, instead deferring any judicial review until a permit has been granted or denied.

In upsetting those settled practices, the Ninth Circuit’s

decision threatens unprecedented “redundan[cy] and a

waste of resources.” App., infra, 89a (district-court decision). This Court should intervene to forestall the “massive implications” of the Ninth Circuit’s “sweeping decision” establishing contrary precedent across the western United States. Id. at 70a (VanDyke, J., dissenting).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

ADAM R.F. GUSTAFSON

Acting Assistant

Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

ROBERT N. STANDER

Deputy Assistant

Attorney General

MAX E. SCHULMAN

Assistant to the

Solicitor General

ROBERT J. LUNDMAN

ROBERT P. STOCKMAN

Attorneys

NOVEMBER 2025

APPENDIX

TABLE OF CONTENTS

Page

Appendix A — Court of appeals opinion (Feb. 13, 2025) ... 1a

Appendix B — District court order (Oct. 6, 2022) ............ 75a

Appendix C — Court of appeals order denying

rehearing (July 17, 2025) ......................... 92a

Appendix D — Statutory and regulatory provisions:

42 U.S.C. 6925(a)-(d) ............................. 94a

42 U.S.C. 6926(b) and (d)-(f ) ................ 98a

42 U.S.C. 6961(a) ................................. 100a

42 U.S.C. 6974(b) ................................. 102a

40 C.F.R. 124.6 .................................... 104a

40 C.F.R. 124.9(b) ................................ 106a

40 C.F.R. 270.51 .................................. 107a

(I)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 22-16613

D.C. No. 1:22-cv-00001

PRUTEHI LITEKYAN: SAVE RITIDIAN,

PLAINTIFF-APPELLANT

UNITED STATES DEPARTMENT OF AIR FORCE; FRANK

KENDALL, SECRETARY OF THE AIR FORCE; UNITED

STATES DEPARTMENT OF DEFENSE; LLOYD AUSTIN,

SECRETARY OF DEFENSE, DEFENDANTS-APPELLEES

Argued and Submitted: Oct. 6, 2023

Honolulu, HI

Filed: Feb. 13, 2025

Appeal from the District Court of Guam

Frances M. Tydingco-Gatewood, Chief Judge,

Presiding

OPINION

Before: MARSHA S. BERZON, ERIC D. MILLER, and

LAWRENCE VANDYKE, Circuit Judges.

Opinion by Judge BERZON;

Dissent by Judge VANDYKE

(1a)

BERZON, Circuit Judge:

Located at the northern tip of Guam, Tarague Beach

is a multifaceted site for the wildlife and people of the

island. Tarague Beach serves as a nesting habitat for

the endangered green sea turtle and a foraging and resting spot for migratory seabirds. Local communities

cultivate and gather traditional medicines nearby.

Tarague Beach sits above Guam’s sole-source aquifer,

which provides more than eighty percent of Guam’s population with drinking water. Just offshore, fishers regularly harvest food for their families.

Tarague Beach is also the site where the United

States Air Force has for years disposed of unexploded

ordnance (such as tear gas, ammunition, propellants,

and explosive materials), some of which dates back to

World War II. The Air Force has elected to dispose of

these hazardous waste munitions through Open Burning/

Open Detonation (OB/OD) operations, which entail burning the munitions in open air or blowing them up on bare

sand.

This appeal concerns a challenge by Prutehi Litkeyan: Save Ritidian (“Prutehi Litekyan”), a nonprofit

organization dedicated to protecting natural and cultural resources in Guam, to the Air Force’s decision to

engage in hazardous waste disposal at Tarague Beach.

Prutehi Litekyan contends that the Air Force failed to

comply with its environmental review obligations under

the National Environmental Policy Act (NEPA).1 The

Prutehi Litekyan has also sued the Secretary of the Air Force

and the Secretary of the U.S. Department of Defense, the Air

Force’s parent agency. We refer to these Defendants collectively

as “the Air Force.”

Air Force responded by invoking another federal statute, the Resource Conservation and Recovery Act

(RCRA), which governs hazardous waste disposal in

part through a permitting process.

On the Air Force’s motion to dismiss the complaint,

the district court held that: (1) the nonprofit lacked

standing to challenge the Air Force’s permit application

because its injury was not fairly traceable to the Air

Force’s conduct; (2) the Air Force had not engaged in

final agency action, and Prutehi Litekyan’s challenge

was therefore not ripe; and (3) even if the court had subject matter jurisdiction over the case, Prutehi Litekyan

had failed to state a claim because RCRA’s permitting

process made NEPA review “redundant” and a “waste

of resources.”

We reverse each holding, as we conclude as follows.

First, Prutehi Litekyan had standing to challenge the

Air Force’s decision to move forward with OB/OD operations without conducting NEPA review. Had the Air

Force taken the requisite “hard look” at the environmental impacts of OB/OD and appropriately engaged

the public before committing to its plan for disposal, the

agency might have chosen a different place or method

for handling the waste munitions. That possibility makes

the injury fairly traceable to the Air Force’s actions and

is enough to establish Article III standing for a procedural injury under NEPA.

Second, the Air Force’s decision to apply for a RCRA

permit and the details of its planned activities on Tarague Beach, described in the permit application, reflected

the agency’s commitment to a particular location for and

method of waste munitions disposal, and so was the endpoint in its decisionmaking process. That commitment

also determined the agency’s legal obligations. The

Air Force thus engaged in final agency action that was

ripe for judicial review.

Third, RCRA’s permitting process is in important respects dissimilar from the environmental review mandated by NEPA and so does not make the latter superfluous. Nor do the processes outlined in RCRA suggest that Congress did not intend NEPA to apply to the

decisionmaking of operational agencies (as opposed to

agencies charged with assuring environmental compliance). NEPA therefore applies to the Air Force’s decision to conduct OB/OD operations at Tarague Beach,

and the nonprofit can state a claim by alleging noncompliance with NEPA.

We reverse the district court’s dismissal and remand

for proceedings consistent with this opinion.

BACKGROUND

This case concerns Prutehi Litekyan’s procedural

rights under NEPA, as well as the interplay between

NEPA and another federal statute, RCRA. Given the

complexities of these statutes, we begin with a brief

overview of relevant NEPA and RCRA provisions and

then turn to the factual details of this case. 2

The facts in this section are drawn from allegations in the complaint. As this appeal comes to the Court from the district court’s

grant of a motion to dismiss, we take the facts alleged in the complaint as true. See WildEarth Guardians v. U.S. Dep’t of Agric.,

795 F.3d 1148, 1154 (9th Cir. 2015); Gilstrap v. United Air Lines,

Inc., 709 F.3d 995, 998 n.1 (9th Cir. 2013).

NEPA is a federal statute designed, in relevant part,

to “encourage productive and enjoyable harmony between man and his environment [and] to promote efforts

which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” 42 U.S.C. § 4321. Primarily a procedural statute, NEPA achieves its “sweeping policy goals

. . . through a set of ‘action-forcing’ procedures that

require that agencies take a “ ‘hard look” at [the] environmental consequences’ ” of their actions, and “provide

for broad dissemination of relevant environmental information.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (quoting Kleppe v. Sierra

Club, 427 U.S. 390, 410 n.21 (1976)). NEPA “does not

mandate particular results; it simply prescribes the necessary process” for assessing the environmental impact

of agency action. Id.

One of NEPA’s principal requirements is that a federal agency prepare a “detailed statement” before engaging in “major Federal action[] significantly affecting

the quality of the human environment.” 42 U.S.C.

§ 4332(C) (1975). 3 This statement, referred to as an

Environmental Impact Statement (EIS), must identify:

Congress amended NEPA in 2023. See Fiscal Responsibility

Act of 2023, Pub. L. No. 118-5, § 321, 137 Stat. 10, 38-46. “[C]ongressional enactments . . . will not be construed to have retroactive

effect unless their language requires this result.”

Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). The relevant

2023 amendments to NEPA do not declare the congressional “intent” behind an earlier version of the statute, nor do they purport

to apply retroactively. For the purpose of this appeal, we con3

(i)

the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot

be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of

man’s environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments

of resources which would be involved in the proposed action should it be implemented.

Id.

A federal agency may not know before preparing an

EIS whether the environmental impacts of its action will

be significant, or it may have reason to believe that the

action is not likely to have significant effects. In such

instances, the agency must, under the applicable regulations, conduct an Environmental Assessment (EA)

that describes, among other things, “the purpose and

need for the proposed action,” alternatives to that action, and the “environmental impacts of the proposed action and alternatives.” 40 C.F.R. § 1501.5(a), (c) (2020).

Based on the EA, the agency may determine that the

action will not have significant environmental impacts,

in which case it issues a Finding of No Significant Impact (“FONSI”). Id. at § 1501.6(a) (2020). Or the

agency may determine that its activity will have signifi-

sider statutory provisions of NEPA as they existed in 2021, when

the relevant action took place.

cant environmental effects, in which case it must prepare an EIS. Id. at § 1501.1(a)(3) (2020). 4

No matter which form of environmental review an

agency undertakes, timing and public engagement are

critical. With respect to timing, agencies must take a

“hard look” at environmental impacts “before taking

. . . action.” Baltimore Gas & Elec. Co. v. Nat. Res.

Def. Council, Inc., 462 U.S. 87, 97 (1983) (emphasis

added) (citing Kleppe, 427 U.S. at 410 n.21). “[B]y focusing the agency’s attention on the environmental consequences of a proposed project, NEPA ensures that

important effects will not be overlooked or underestimated only to be discovered after resources have been

committed or the die otherwise cast.” Robertson, 490

U.S. at 349.

The Council on Environmental Quality (CEQ), the

agency that promulgates NEPA’s implementing regulations, has emphasized the need to conduct NEPA review

“at the earliest reasonable time to ensure that agencies

consider environmental impacts in their planning and

decisions.” 40 C.F.R. § 1501.2(a) (2020). NEPA regulations require an agency to “commence preparation of

an [EIS] as close as practicable to the time the agency

is developing . . . a proposal” and at least “early

enough so that it can serve as an important practical

contribution to the decisionmaking process and will not

be used to rationalize or justify decisions already made.”

Id. at § 1502.5 (2020). Where an agency “directly unAgencies may designate “categorical exclusions” for actions that

“normally do not have a significant effect on the human environment” and “therefore do not require preparation of an [EA] or [EIS],”

barring “extraordinary circumstances.” 40 C.F.R. § 1501.4(a)-(b)

(2020).

dertake[s]” a project, “the agency shall prepare the

[EIS] at the feasibility analysis [or go/no-go] stage and

may supplement it at a later stage, if necessary.” Id.

at § 1502.5(a) (2020). More generally, an agency may

not act on a proposal that has an “adverse environmental effect” or “limit[s] the choice of reasonable alternatives” until it has issued a FONSI or another record of

decision. Id. at § 1506.1(a) (2020).

Public engagement also plays a crucial role in realizing NEPA’s policy goals. “[P]ublic comment procedures,” including both public notice and public participation, “are at the heart of the NEPA review process,”

reflecting “the paramount Congressional desire to internalize opposing viewpoints into the decisionmaking process to ensure that an agency is cognizant of all the environmental trade-offs that are implicit in a decision”

before it makes that decision. California v. Block,

690 F.2d 753, 770-71 (9th Cir. 1982) (citing 42 U.S.C.

§ 4332(2)(C) (1976)); see also 40 C.F.R. § 1500.2(d) (2020)

(noting that federal agencies must, to the fullest extent

possible, “[e]ncourage and facilitate public involvement

in decisions which affect the quality of the human environment”).

Whether the proposed agency action requires an EIS

or EA, agencies must provide “public notice of NEPArelated hearings, public meetings, and other opportunities for public involvement, and the availability of environmental documents so as to inform those persons

. . . who may be interested or affected by their proposed actions.” 40 C.F.R. § 1506.6(b) (2020). NEPA

regulations outline a more formal public engagement

process when an agency prepares an EIS. See id. at

§ 1503.1 et seq. (2020). Even when the agency prepares

only an EA, NEPA regulations “require that the public

be given as much environmental information as is practicable, prior to completion of the EA, so that the public

has a sufficient basis to address those subject areas that

the agency must consider in preparing the EA.” Bering Strait Citizens for Responsible Res. Dev., 524 F.3d

938, 953 (9th Cir. 2009) (quoting Sierra Nevada Forest

Prot. Campaign v. Weingardt, 376 F. Supp. 2d 984, 991

(E.D. Cal. 2005)).

RCRA is a substantive environmental statute that

“empowers [the U.S. Environmental Protection Agency

(EPA)] to regulate hazardous wastes from cradle to

grave, in accordance with the rigorous safeguards and

waste management procedures” set forth in the statute.

City of Chicago v. Envt’l Def. Fund, 511 U.S. 328, 331

(1994). RCRA governs facilities that “treat[], stor[e],

[or] dispos[e]” of hazardous waste and authorizes EPA

to set performance standards for such facilities by regulation. 42 U.S.C. § 6924(a) (1996).

To handle hazardous waste, a facility must apply for

and obtain a RCRA permit. See id. at § 6925 (1996).

The application requires prospective permittees to submit, among other things, a “description of the processes

to be used for treating, storing, and disposing of hazardous waste,” 40 C.F.R. § 270.13(i) (2006); “[c]hemical and

physical analyses of the hazardous waste and hazardous

debris to be handled at the facility,” id. at § 270.14(b)(2)

(2006); and a “description of procedures, structures or

equipment” used to prevent runoff, water contamination, atmospheric releases, and other hazards to the surrounding area and personnel, id. at § 270.14(b)(8) (2006).

10a

Applicants that propose to operate “miscellaneous”

waste disposal units, of which the Air Force is one, must

also submit “[d]etailed hydrologic, geologic, and meteorologic assessments” that “address and ensure compliance of the unit” with certain environmental performance standards. See id. at § 270.23(b) (1987) (detailing application requirements for facilities that dispose

of waste through “miscellaneous units”). EPA or a

designated state agency, see infra, must provide public

notice of its intent to issue a RCRA permit, allow for

public comment, and, under certain circumstances, hold

a public hearing on the proposed permit. See 42 U.S.C.

§ 6974(b)(2) (1980); 40 C.F.R. §§ 124.10-.14.

Under RCRA, EPA may authorize a state to administer a hazardous waste program “in lieu of the Federal

program.” 42 U.S.C. § 6926(b) (1986). To receive such

authorization, a state must develop a hazardous waste

program, provide notice and opportunity for public

hearing, and submit an application to EPA. Id. With

EPA’s authorization, the state may “issue and enforce

[RCRA] permits,” id., and take action with the “same

force and effect as action taken by [EPA],” id. at

§ 6926(d).

The Guam Environmental Protection Agency (Guam

EPA) applied to administer RCRA in 1985 and received

its authorization from EPA in January 1986. See 51

Fed. Reg. 1370-71 (Jan. 13, 1986). Guam EPA administers RCRA pursuant to its Hazardous Waste Management regulations, which mimic EPA’s regulations—

including its RCRA permit application requirements—

in significant part. See 22 Guam Admin. R. & Regs.

§§ 30101-30113.

11a

Under Guam EPA’s regulations, a RCRA permit is

“effective for a fixed term not to exceed 3 years.” Id.

at § 30109(m). When a facility timely applies for the

renewal of its RCRA permit, Guam EPA regulations

provide that the facility’s “expired permit continue[s] in

force . . . until the effective date of a new permit.”

40 C.F.R. § 270.51 (2005); see also 22 Guam Admin. R. &

Regs. § 30109(a), (o) (adopting 40 C.F.R. § 270.51).

Guam EPA largely adopts the federal approach when

it comes to public participation in the RCRA permitting

process. When Guam EPA has tentatively decided to

issue a RCRA permit, it provides public notice and allows at least forty-five days for public comment. 22

Guam Admin. R. & Regs. § 30110(i). During this period, interested persons may submit written comments

on the proposed permit and ask for a public hearing,

which must be held on request or when Guam EPA finds

a “significant degree of public interest” in the permit.

Id. at §§ 30110( j), 30110(k)(a)(1).

The Air Force operates Andersen Air Force Base

(AAFB) in northern Guam. It has erected an Explosive Ordnance Disposal (EOD) range at Tarague Beach,

directly adjacent to the Base. The Air Force uses this

range to dispose of “unserviceable ordnance and other

pyrotechnic devices,” such as “black powder, white/red

phosphorus, tear gas, ammunitions, propellants, and

[other] explosive materials.”

The Air Force has used two methods to destroy hazardous munitions waste at Tarague Beach: open burning (OB) and open detonation (OD) (together, “OB/OD

operations”). Open burning entails placing the waste

munitions in a four-foot-wide, five-foot-tall “burn kettle,”

12a

along with wood, roughly ten gallons of diesel fuel, and

an ignition device. Open detonation involves placing

the waste munitions, an explosive charge, and an igniter

into a pit. Under both operations, the igniter is remotely activated from a personnel bunker and the waste

munitions are destroyed through burning or explosion.

A 2,400 foot-radius safety zone surrounds the active

treatment units at Tarague Beach.

The Air Force first received a RCRA permit to conduct OB/OD operations on Tarague Beach in 1982.

Every three years since then, it has applied for a new

permit. Guam EPA has granted each permit since it

was authorized to do so. While OD operations have occurred under each permit, no OB operations have taken

place since at least the early 2000s. The burn kettle

the Air Force previously used for OB operations is “nonoperational due to severe corrosion,” and “[b]efore any

open burning activity is allowed under the [RCRA] permit, the unit must meet . . . [certain] design and operational specifications.”

Guam EPA issued the Air Force’s most recent RCRA

permit in 2018; it was set to expire on September 3, 2021.

As the expiration date approached, the agency had to

decide whether it would continue OD operations (and

potentially restart OB operations) on Tarague Beach or

find another way to manage hazardous waste munitions.

The Air Force submitted an application for permit renewal in May 2021, reflecting its intention to conduct

OB/OD operations at the beach from 2021 to 2024.

The Air Force applied for the 2021-2024 RCRA permit without issuing either an EIS or EA or invoking a

categorical exclusion. There was no provision for public comment on the proposed action’s environmental im-

13a

pacts or on reasonable alternatives to the proposed action before the Air Force submitted its permit application. The NEPA bypass occurred notwithstanding

known potential environmental impacts of OB/OD operations, including groundwater contamination, ejection of

waste materials into the ground or air, and the possible

existence of a range of potential alternatives for disposing of hazardous waste munitions.

After receiving the Air Force’s application in May

2021, Guam EPA held a public review and comment period from July 30, 2021 to September 13, 2021 and

hosted a public hearing on August 30, 2021. As Guam

EPA explained in its Notice of Preliminary Decision on

the Air Force’s application Guam EPA received “significant comments that warrant[ed] this Agency to address

[sic] before making a final decision on the completeness

and technical aspects of the permit renewal application.”

On October 15, 2021, Guam EPA issued to the Air Force

its Notice of Preliminary Decision that “neither den[ied]

nor approve[d]” the Air Force’s permit application while

Guam EPA continued to review the public comments.

In the meantime, with Guam EPA’s approval, the Air

Force has continued to operate the OB/OD facility on

Tarague Beach under the terms of its 2018 permit while

its renewal application is pending.

See 40 C.F.R.

§ 270.51(d) (authorizing a renewal permit applicant to

extend the life of its current permit by filing a timely

and complete application to the appropriate RCRA permitting authority).

In January 2022, Prutehi Litekyan sued the U.S. Air

Force, Secretary of the Air Force Frank Kendall, and

U.S. Secretary of Defense Lloyd Austin, alleging that

14a

they violated NEPA by submitting a RCRA permit renewal application without preparing an EIS or EA that

“(1) takes the requisite ‘hard look’ at the environmental

impacts of the proposed OB/OD operations, (2) considers a reasonable range of alternatives, including the ‘no

action’ alternative, and (3) provides opportunities for

public comment on the proposed operations and reasonable alternatives.”

Prutehi Litekyan identified several ways in which its

members’ interests would be concretely harmed by the

Air Force’s proposed OB/OD operations. The organization asserted that owners of the land surrounding

Tarague Beach would be injured by the potential contamination of land, beach, and water that OB/OD operations could cause. Prutehi Litekyan also alleged that

its members frequently spend time on Tarague Beach

for recreational, cultural, spiritual, and aesthetic purposes, and that the explosions, smoke, noise, and potential contamination from the Air Force’s disposal operations over the period covered by the permit application

would interfere with their use and enjoyment of the

area. The Air Force’s planned activities on Tarague

Beach would, the organization alleged, also interfere

with their fisher members’ food-gathering. And, on behalf of its wildlife biologist members, Prutehi Litekyan expressed concern that shockwaves from explosions on the

Beach and the potential for marine contamination could

harm their professional and scientific interest in studying Guam’s endangered green sea turtles.

Among other forms of relief, Prutehi Litekyan sought

a declaratory judgment that Defendants had violated

NEPA and a grant of injunctive relief (1) compelling Defendants to withdraw their pending RCRA permit appli-

15a

cation and (2) enjoining continued OB/OD operations

and resubmission of any RCRA application as long as

Defendants did not comply with NEPA’s requirements.

Defendants filed a motion to dismiss under Fed. R.

Civ. P. 12(b)(1) and 12(b)(6), which the district court

granted, on several grounds. The court first held that

Prutehi Litekyan’s injury was not fairly traceable to the

Air Force’s submission of its permit application, so the

organization lacked standing. It also determined that

there was no final agency action, so Prutehi Litekyan’s

challenge was unripe, as Guam EPA had yet to make a

decision on the permit application.

Holding that

Prutehi Litekyan lacked Article III standing and its

challenge was unripe, the district court dismissed the

complaint for lack of subject matter jurisdiction.

As an alternate ground for dismissal, the district

court held that Prutehi Litekyan failed to state a claim

upon which relief could be granted because the Air

Force’s permit application was not subject to NEPA.

The district court relied for this conclusion on the “functional equivalence doctrine,” which exempts agency action from NEPA review where another statute imposes

environmental review procedures that would be “redundant with” those provided for under NEPA. See Alabama ex rel. Siegelman v. U.S. E.P.A., 911 F.2d 499, 504

(11th Cir. 1990).

Prutehi Litekyan timely appealed the district court’s

decision, challenging all three grounds for dismissal—

standing, ripeness, and failure to state a claim due to an

applicable NEPA exception.

16a

II.

DISCUSSION

“We review de novo a district court’s dismissal under

Rule 12(b)(1) or Rule 12(b)(6).” Sabra v. Maricopa

Cnty. Cmty. Coll. Dist., 44 F.4th 867, 878 (9th Cir. 2022).

In reviewing a motion to dismiss for lack of standing, we

“constru[e] the factual allegations in the complaint in favor of the plaintiffs.” WildEarth Guardians v. U.S.

Dep’t of Agric., 795 F.3d 1148, 1154 (9th Cir. 2015) (quoting Mont. Shooting Sports Ass’n v. Holder, 727 F.3d

975, 979 (9th Cir. 2013)). And in reviewing a motion to

dismiss for failure to state a claim, we “accept all material allegations in the complaint as true, and construe

them in the light most favorable to the non-moving

party.” Dent v. Nat’l Football League, 968 F.3d 1126,

1130 (9th Cir. 2020) (quoting Chubb Custom Ins. Co. v.

Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013)).

“Dismissal is only proper where the allegations in the

complaint do not factually support a cognizable legal

theory.” Id.

Standing

To establish standing, Prutehi Litekyan must demonstrate that it has (1) suffered an “injury in fact” that is

(2) fairly traceable to the challenged conduct of the defendant and (3) likely to be redressed by a favorable judicial opinion. Lujan v. Defs. of Wildlife, 504 U.S. 555,

560-61 (1992).

17a

The district court concluded that the Plaintiff ’s “injury is not fairly traceable to the challenged action of

Defendants.”5

To establish traceability, “there must be a causal connection between the injury and the conduct complained

of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the

independent action of some third party not before the

court.” Id. at 560 (alterations omitted) (quoting Simon

v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41-42 (1976)).

But when a plaintiff seeks to enforce a procedural right

like the ones NEPA guarantees, both the traceability

and redressability requirements are “relaxed.” Whitewater Draw Nat. Res. Conservation Dist. v. Mayorkas,

5 F.4th 997, 1013 (9th Cir. 2021) (quoting W. Watersheds

In passing, the Air Force suggests that Prutehi Litekyan has

not experienced an injury-in-fact because it claims deprivation of a

“procedural right in vacuo.”

Prutehi Litekyan did adequately allege injury-in-fact. The organization’s procedural injury “is tied to a substantive ‘harm to the

environment,’ ” which “consists of added risk to the environment

that takes place when governmental decisionmakers make up their

minds without having before them an analysis (with public comment) of the likely effects of their decision on the environment.”

Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961,

971 (9th Cir. 2003) (quoting West v. Sec’y of Dep’t of Transp., 206

F.3d 920, 930 n.14 (9th Cir. 2000)). And the injury is “concrete”

because Prutehi Litekyan’s members, such as local families, fishers, and scientists, have a “geographic nexus . . . to the location

suffering an environmental impact,” “use the affected area,” and

“are persons for whom the aesthetic and recreational values of the

area,” among other values, “will be lessened by the challenged activity.” WildEarth Guardians, 795 F.3d at 1154 (9th Cir. 2015)

(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,

528 U.S. 167, 183 (2000)).

18a

Project v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir.

2011)). As explained in Lujan, procedural rights are

“special,” and a plaintiff who asserts a procedural right

to protected concrete interests “can assert that right

without meeting all the normal standards for redressability and immediacy.” 504 U.S. at 572 n.7. Specifically, a NEPA plaintiff “need not show” that compliance

with the procedural requirement “would lead to a different result at either the programmatic or project-specific

level.” Cottonwood Env’t L. Ctr. v. U.S. Forest Serv.,

789 F.3d 1075, 1083 (9th Cir. 2015). Instead, the plaintiff need demonstrate only that the agency’s decision

“could be influenced by the environmental considerations that NEPA requires an agency to study.” Hall v.

Norton, 266 F.3d 969, 977 (9th Cir. 2001); see also W.

Watersheds Project, 632 F.3d at 485.

Construing the allegations in the complaint in

Prutehi Litekyan’s favor, the organization’s injury was

fairly traceable to the Air Force’s decision to carry out

OB/OD operations (as detailed in its 2021 RCRA permit

application) without first conducting an EA or EIS.

According to the complaint, the Air Force did not carry

out the detailed and complete environmental review

NEPA requires. In particular, it did not take the “requisite ‘hard look’ at the potential impact” of OB/OD operations, Ocean Advocs. v. U.S. Army Corps of Engin’rs,

402 F.3d 846, 864 (9th Cir. 2005), including “meaningful[ly] consider[ing]” alternatives to its proposed waste

disposal plan, Se. Alaska Conserv. Council v. Fed. Highway Admin., 649 F.3d 1050, 1057 (9th Cir. 2011) (quoting Bob Marshall All. v. Hodel, 852 F.2d 1223, 1228 (9th

Cir. 1988)). The Air Force also failed to engage the

public before deciding to continue disposing of hazard-

19a

ous waste at Tarague Beach, as is required under NEPA

whether an agency ultimately issues an EA or EIS.

If the Air Force had conducted NEPA’s mandatory

environmental review at the required time, its decisionmaking process could have been influenced “by the

environmental considerations that NEPA requires an

agency to study,” Hall, 266 F.3d at 977, and could have

resulted in a different decision, including a decision not

to carry out OB/OD operations on Tarague Beach in the

following three years or to do so differently. Prutehi

Litekyan’s injury is thus fairly traceable to the Air

Force’s noncompliance with NEPA.

That Guam EPA acts as the RCRA permitting authority does not require a different result. Prutehi

Litekyan does not “challenge[] . . . the anticipated

approval” of a “currently pending” permit application.

Montana Envtl. Info. Ctr. v. Stone-Manning, 766 F.3d

1184, 1189 (9th Cir. 2014). Instead, it challenges the

deprivation of a procedural right, which occurred when

the Air Force chose not to comply with NEPA before

arriving at the decision to carry out OB/OD operations

on Tarague Beach for the next three years. So long as

there is a reasonable probability that Guam EPA will

approve the Air Force’s application—something the Air

Force does not dispute—enforcing that procedural right

will reduce the likelihood of Prutehi Litekyan’s experiencing its asserted injury. That makes its injury fairly

traceable to the challenged conduct.

Final Agency Action

The district court also held that Prutehi Litekyan’s

NEPA claim failed because the Air Force’s action was

not final. We disagree. The finality of the Air Force’s

action determines both whether Prutehi Litekyan can

20a

sue under the APA and whether the claim is ripe under

Article III. There was final agency action here, so

Prutehi Litekyan’s claim is ready for adjudication.

(i)

Judicial review of a NEPA claim “is governed by the

[Administrative Procedure Act (APA)], which limits review to ‘final agency action.’ ” Env’t Def. Ctr. v. Bureau

of Ocean Energy Mgmt., 36 F.4th 850, 867 (9th Cir.

2022) (quoting 5 U.S.C. § 704). “For there to be ‘final

agency action,’ there must first be ‘agency action.’ ”

S.F. Herring Ass’n v. Dep’t of the Interior, 946 F.3d 564,

575 (9th Cir. 2019) (citation omitted) (quoting 5 U.S.C.

§ 704).

The APA defines “agency action” as “the whole or a

part of an agency rule, order, license, sanction, relief, or

the equivalent or denial thereof, or failure to act.” 5

U.S.C. § 551(13). The statutory definition of an agency

“rule” is “broad[],” Perez v. Mortg. Bankers Ass’n, 575

U.S. 92, 95 (2015), and encompasses “the whole or a part

of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an

agency,” 5 U.S.C. § 551(4). The definition of “rule” includes “nearly every statement an agency may make.”

Batterton v. Marshall, 648 F.2d 694, 700 (D.C. Cir.

1980).

Both the Air Force and the Department of Defense

are federal administrative agencies subject to the APA.

The Air Force’s decision to conduct OB/OD operations in

the future according to specified protocols, as evidenced

by the content of its RCRA permit renewal application,

is an agency statement of “particular applicability”—

21a

i.e., a statement concerning its plan for hazardous waste

removal at Tarague Beach—and “future effect designed

to implement . . . policy.” 5 U.S.C. § 551(4). The

agency plan constitutes agency action.

(ii)

For agency action to be final, “two conditions must

be satisfied.” Bennett v. Spear, 520 U.S. 154, 177

(1997). “First, the action must mark the consummation of the agency’s decisionmaking process—it must

not be of a merely tentative or interlocutory nature.”

Id. at 177-78 (citation omitted) (quoting Chi. & S. Air

Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113

(1948)). “[S]econd, the action must be one by which

rights or obligations have been determined, or from

which legal consequences will flow.” Id. at 178 (quoting Port of Bos. Marine Terminal Ass’n. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). “In applying this test, we look to factors such as whether the

action amounts to a definitive statement of the agency’s

position, whether it has a direct and immediate effect on

the day-to-day operations of the subject party, and if immediate compliance . . . is expected.” Nat’l Lab.

Rels. Bd. v. Siren Retail Corp., 99 F.4th 1118, 1123 (9th

Cir. 2024) (internal quotation marks omitted) (quoting

Saliba v. U.S. Sec. & Exch. Comm’n, 47 F.4th 961, 967

(9th Cir. 2022)). “We also focus on the practical and legal effects of the agency action: The finality element

must be interpreted in a pragmatic and flexible manner.” Saliba, 47 F.4th at 967 (internal quotation marks

and alteration omitted) (quoting Oregon Nat. Desert

Ass’n v. Harrell, 52 F.3d 1499, 1504 (9th Cir. 1995)).

22a

With respect to the first Bennett condition, the Air

Force had reached the “consummation” of its decisionmaking process when it filed its permit application.

Before the agency’s 2018 permit expired in 2021, the Air

Force decided to continue OD operations and restart OB

operations at Tarague Beach for a forward-looking

three-year period. The Air Force “arrived at [this] definitive position . . . and put [it] into effect” by submitting a 2021 permit renewal application that described

how the agency would carry out OB/OD activities between 2021 and 2024. See Or. Nat. Desert Ass’n v. U.S.

Forest Serv., 465 F.3d 977, 985-86 (9th Cir. 2006).

(a) The Air Force’s decision was not of a “tentative

or interlocutory nature.”

The Air Force contends that “[r]equesting action by

another agency is of a ‘tentative or interlocutory nature’ ” because “the legal effect [of the request] depends

on the other agency’s actions,” and “preliminary or interim steps in a permitting process are not themselves

final agency action.” The Air Force—and the Dissent

—misidentify the agency action Prutehi Litekyan contests. The organization does not characterize as the final action Guam EPA’s eventual permitting decision under RCRA, see Dissent at 54, 55, or challenge an intermediate step along the way to that permitting decision,

see Dissent at 49, n.2; id. at 54-58. Instead, it challenges the Air Force’s decision to engage in OB/OD operations over the next three years under particular pro-

23a

tocols, reflected by the content of the 2021 permit application.6

The Air Force’s decision marked an endpoint, not a

starting point. The agency has “not suggest[ed] it is

still in the middle of trying to figure out its position on”

OB/OD operations at Tarague Beach, or that the plan

memorialized in its application was tentative from the

agency’s perspective. S.F. Herring, 946 F.3d at 578.

Accepting Prutehi Litekyan’s allegations as true and

drawing reasonable inferences in its favor, the Air Force

engaged in an “evaluative process” to prepare its renewal application. ONRC Action v. Bureau of Land

Mgmt., 150 F.3d 1132, 1136 (9th Cir. 1998). And the

agency “arrive[d] at a reasoned, deliberate decision” to

conduct OB/OD operations at Tarague Beach for the period covered by its application. Id. The final agency

action requirement is meant to “prevent premature intrusion [by courts] into the agency’s deliberations,” not

to insist that parties “keep knocking at the agency’s

door when the agency has already made its position

clear.” S.F. Herring, 946 F.3d at 579.

Even if the Air Force were to revisit its OB/OD operations sua sponte or at Guam EPA’s request, “[t]he

mere possibility that [the] agency might reconsider

. . . does not suffice to make an otherwise final agency

action nonfinal.” Id. (quoting Sackett v. EPA, 566 U.S.

120, 127 (2012)). Most, if not all, agency decisions incorporate some contingencies, but that is not enough to

shield them from judicial review.

Contrary to the Dissent’s characterization, Prutehi Litekyan

has consistently framed its challenge this way, from the filing of its

initial complaint to its appellate briefing.

24a

For instance, in Environmental Defense Center v.

Bureau of Ocean Energy Management, two federal

agencies—the Bureau of Ocean Energy Management

and Bureau of Safety and Environmental Enforcement

—issued a programmatic EA and FONSI regarding offshore well simulation treatments (or “fracking”) in the

Pacific Outer Continental Shelf. 36 F.4th at 864-66.

We held that the issuance of these NEPA documents

constituted “final agency action” even though the agencies in question had not approved “site-specific permits”

that, if applied for and approved, would lead “private entities” to engage in fracking in the region. Id. at 86669.

Likewise, in California Wilderness Coalition v. U.S.

Department of Energy, we held that the Department of

Energy’s designation of particular geographic areas as

“national interest electric transmission corridors”

(NIETCs) was final agency action. 631 F.3d 1072, 1100

(9th Cir. 2011). The agency’s NIETC designation

“ma[de] available a fast-track approval process to utilities seeking permits for transmission lines within the

corridor,” id. at 1080, although “any question as to the

actual siting [or authorization] of a facility within the

corridors w[ould] be addressed to” a different federal

agency, the Federal Energy Regulatory Commission

(FERC), id. at 1100. Even though FERC had the ultimate power to “authorize the construction or modification of electric transmission facilities,” id. at 1100 (quoting National Electric Transmission Congestion Report,

73 Fed. Reg. 12,959, 12,969 (Mar. 11, 2008)), the NIETC

designation “conclude[d]” the DOE’s responsibilities

and “undoubtedly” qualified as final agency action, id.

25a

Similarly, in Havasupai Tribe v. Provencio, we considered whether the Forest Service engaged in final

agency action when it issued a Mineral Report specifying that a private mine owner had existing mining rights

on a particular piece of public land. 906 F.3d 1155,

1159-63 (9th Cir. 2018). We concluded that the Forest

Service’s conduct qualified as final agency action even

though “the final decision to contest a claim of existing

rights rest[ed]” with a different federal agency, and

“[r]ights to a mineral deposit on public land are not

[technically] conferred by agency action; they are acquired by the miner’s own actions of location and discovery.” Id. at 1162.

These examples demonstrate that a federal agency’s

assessment, plan, or decision qualifies as final agency

action even if the ultimate impact of that action rests on

some other occurrence—for instance, a future site-specific application, a decision by another administrative

agency, or conduct by a regulated party. In short,

“[a]n agency action can be final even if its legal or practical effects are contingent on a future event.” Gill v.

U.S. Dep’t of Just., 913 F.3d 1179, 1185 (9th Cir. 2019).

Here, the Air Force’s ultimate implementation of its

proposed waste disposal plan depends on whether Guam

EPA grants or denies its application. Still, the permit

renewal application represents the Air Force’s “last

word” on its intent to carry out OB/OD operations at

Tarague Beach. Or. Nat. Desert Ass’n, 465 F.3d at 984.

(b) The Air Force’s decision changed the “status

quo.”

In addition to its mistaken focus on Guam EPA’s permitting decision, the Air Force maintains that the decision to conduct OB/OD operations at Tarague Beach is

26a

also not final for a separate reason—that it reflects ongoing agency operations, not a change in the “status

quo.” This argument downplays two critical points.

For one, to conduct OB/OD operations, the Air Force

is required to apply anew for a RCRA permit every

three years. Each time the Air Force applies for a new

RCRA permit, it must assess whether OB/OD operations make sense based on then-existing conditions, not

conditions at the time it first applied for a permit. See

22 Guam Admin. R. & Regs. § 30109(a). And if the Air

Force does not reapply for a permit covering a particular three-year period, its existing permit will lapse and

burning or detonation on Tarague Beach will have to

cease.

The design of the RCRA permitting regime distinguishes the Air Force’s decision from the kinds of routine implementation decisions this Court has deemed

not to constitute final agency action. For instance, a

federal fish hatchery’s decision to periodically close dam

gates and divert water from one body of water to another reflects “day-to-day operations that merely implement operational plans” that the agency had already set;

it does not consummate an agency process for establishing future plans. Wild Fish Conservancy v. Jewell, 730

F.3d 791, 801-02 (9th Cir. 2013). Similarly, the Forest

Service’s “routine [trail] maintenance work” on federal

lands does not qualify as final agency action, as these

activities “implement [the agency’s pre-existing] travel

management and forest plans” for the lands in question.

Mont. Wilderness Ass’n v. U.S. Forest Serv., 314 F.3d

1146, 1150 (9th Cir. 2003), vacated on other grounds, 542

U.S. 917 (2004).

27a

In cases like Wild Fish Conservancy and Montana

Wilderness Association, a federal agency made a decision to adopt a particular program or plan; the subsequent activities implemented that decision. Here, by

contrast, each of the Air Force’s triennial permit applications reflects a discrete commitment to carry out hazardous waste removal repeatedly at Tarague Beach in

future years. As reflected by its permit application,

the Air Force has affirmatively chosen to pursue OB/OD

operations continually for a three-year period as a

means of waste removal, over the alternative of letting

its approval to do so lapse. Put another way, the analogue to the closing of dam gates in Wild Fish Conservancy and the routine maintenance work in Montana

Wilderness Association would be the decision to carry

out OB/OD operations on a particular day during the

three-year period covered by a permit, not the decision

to produce a plan for such operations spanning that entire time period. 7

The Dissent cites two out-of-circuit opinions to support its position that the Air Force’s decision does not change the status quo.

See Dissent at 60-61 (citing Village of Bald Head Island v. U.S.

Army Corps of Engineers, 714 F.3d 186, 191 (4th Cir. 2013); Chemical Weapons Working Group, Inc. v. U.S. Dep’t of the Army, 111

F.3d 1485, 1494 (10th Cir. 1997)). Like Wild Fish Conservancy

and Montana Wilderness Association, these cases are consequentially distinct from the one at bar. The text of the RCRA statute

and its implementing regulations specifically impose periodic decisional junctures on permittees, requiring them to reevaluate various aspects of their disposal procedures every three years if they

wish to continue managing hazardous waste. See, e.g., 42 U.S.C.

§ 6925; 22 Guam Admin. R. & Regs. § 30109. There are no such

statutorily-mandated trigger points at issue in the cases the Dissent references.

28a

The design of RCRA’s permitting regime forecloses

a related argument put forth by the Air Force: that it

decided to engage in OB/OD operations only when it

first applied for a RCRA permit decades ago, so Prutehi

Litekyan’s claim is time-barred. Again, every three

years, the Air Force must affirmatively decide to engage

in OB/OD operations at Tarague Beach for the forwardlooking three-year period; the agency must then submit

a permit application—based on current conditions, not

conditions as they were decades ago—that memorializes

this decision. The Air Force’s statute of limitations argument fundamentally misapprehends this point.8

Additionally, the Air Force’s latest permit renewal

application does propose to change the status quo, in a

very specific way. OB operations “have been inactive

since at least before May 2002,” and the “burn kettle

previously used for open burning [has not been] operational due to severe corrosion.” The status quo at

Tarague Beach has been no open burning. As Prutehi

Litekyan’s complaint alleges, the Air Force has now

“propose[d] to construct a new device to restart open

burning operations” that have not been conducted at

Tarague Beach in decades. So it is not true that the

Air Force is passively proposing to continue ongoing operations.

The Dissent represents that the Air Force’s “longstanding decision” to carry out OB/OD operations at Tarague Beach, “first

made in 1982, was even reflected in the latest [permit] Application:

that ‘the OB/OD units will be operated until the Air Force Base

ceases operation.’ ” Dissent at 56. The application contains no

reference to any earlier decision. And it states that “[i]t is estimated that the OB/OD units will be operated until the Air Force

Base ceases operation [emphasis added],” not that a decision has

been made in that regard.

29a

In sum, the Air Force “consummated” its decisionmaking process when it elected to apply and applied to

continue OB/OD operations at Tarague Beach for three

years. The application memorialized the agency’s decision and spelled out its details. There was nothing

tentative or uncertain about the plan the Air Force memorialized in its application. And the agency’s final action occurred when it decided to apply and then applied

for a RCRA permit in 2021, not many years earlier.

The second Bennett condition requires that the

agency action “must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’ ” Bennett, 520 U.S. at 178 (quoting

Port of Bos. Marine Terminal Ass’n, 400 U.S. at 71).

The Air Force’s decision imposes a legal obligation upon

the agency. Should Guam EPA issue the Air Force a

renewal permit, the permit’s terms and conditions will

be predicated on the representations made and the disposal plans set forth in the Air Force’s application.

And if Guam EPA issues a permit, the Air Force will not

be able to deviate unilaterally from the conditions imposed by its permit: Both misrepresentations made in

a permit application and noncompliance with the terms

of a permit are grounds for permit termination, see 22

Guam Admin. R. & Regs. § 30110(d) (adopting 40 C.F.R.

§ 270.43), and substantive modifications must be made

with the permission of Guam EPA, see id. (citing 40

C.F.R. §§ 270.41-42). Finally, if Guam EPA denies the

permit, that too would impose a legal consequence flowing from the Air Force’s waste disposal plan—the obligation not to conduct waste disposal in accord with the

decision reached before the application was submitted.

30a

Given these circumstances, the Air Force’s waste disposal plan is closely analogous to the agency action at

issue in Bennett itself. Bennett concerned the status of

a Biological Opinion issued pursuant to the Endangered

Species Act (ESA). 520 U.S. at 157. Under the ESA,

when a federal agency determines that an action it proposes to take may adversely impact a protected species

or its habitat, the Fish and Wildlife Service must prepare a written statement—the Biological Opinion—that

analyzes the likely impact of the proposed activity. Id.

at 158. Where the Service concludes that the proposed

agency action would threaten a protected species or

habitat, its Biological Opinion must outline “reasonable

and prudent alternatives” that the Service believes

would avoid that consequence. Id. (citing 16 U.S.C.

§ 1536(b)(3)(A)). If the Biological Opinion concludes

that the “agency action will not result in jeopardy or adverse habitat modification, or if it offers reasonable and

prudent alternatives to avoid that consequence, the Service must provide the agency with a written statement

(known as the Incidental Take Statement) specifying

the ‘impact of such incidental taking on the species,’ any

‘reasonable and prudent measures that the [Service]

considers necessary or appropriate to minimize such impact,’ and setting forth ‘the terms and conditions . . .

that must be complied with by the Federal agency . . .

to implement [those measures].’ ”

Id. (quoting 16

U.S.C. § 1536(b)(4)).

Bennett concluded that the Biological Opinion and its

accompanying Incidental Take Statement constituted final agency action, as they “alter[ed] the legal regime to

which the action agency is subject, authorizing it to take

the endangered species if (but only if ) it complies with

the prescribed conditions.” Id. at 178. The court dis-

31a

tinguished these statements from agency reports that

“carried ‘no direct consequences’ and served ‘more like

. . . tentative recommendation[s] than . . . final

and binding determination[s].’ ” Id. (quoting Franklin

v. Massachusetts, 505 U.S. 788, 798 (1992)).

At least as much as, and probably even more than,

the Service’s Biological Opinion and Incidental Take

Statement in Bennett, the waste disposal plan included

in the Air Force’s permit application has the “direct and

appreciable legal consequence[],” id. at 178, of committing the Air Force to a particular course of action—

waste removal operations under the protocol proposed

in the application. Far from being “purely advisory,”

id., the Air Force’s waste disposal plan as articulated in

its application lays the groundwork for the plan it will

have to follow during the permit period. It bears repeating that even if the Air Force modifies or abandons

its waste disposal plan down the road, or Guam EPA directs it to, “[t]he mere possibility that [the] agency

might reconsider [its plans] . . . does not suffice to

make an otherwise final agency action nonfinal.” S.F.

Herring, 946 F.3d at 579 (quoting Sackett, 566 U.S. at

127).

In sum, the Air Force’s decision to proceed with

OB/OD operations at Tarague Beach determined legal

obligations,9 satisfying the second prong of the Bennett

The Air Force’s decision to carry out OB/OD operations for the

next three years, as memorialized in its permit renewal application,

also had the legal consequence of prolonging the life of its 2018 permit. See 40 C.F.R. § 270.51(d). The Air Force has continued to

conduct OD operations at Tarague Beach under the authority of its

2018 permit. The decision to continue waste disposal operations

as detailed in the permit application not only determines legal ob9

32a

test. As both prongs of the Bennett standard for final

action are met, we conclude that the Air Force took “final agency action” for the purposes of judicial review, so

Prutehi Litekyan can bring suit under the APA.

(iii)

The district court discussed final agency action in its

ruling on ripeness. As our final agency action analysis

makes evident that Prutehi Litekyan’s claim is ready for

adjudication, the claim is also jurisdictionally and prudentially ripe.

“Evaluating ripeness in the agency context requires

considering ‘(1) whether delayed review would cause

hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.’ ” Env’t Def. Ctr., 36 F.4th at 870 (quoting Ohio

Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998)).

All three factors militate in favor of adjudicating Prutehi

Litekyan’s claim now.

First, “delayed review would cause hardship to

[Prutehi Litekyan] because [it is] alleging only procedural violations in this case,” and delaying the review of

procedural injuries “den[ies]” Prutehi Litekyan “the

fundamental safeguards” provided by NEPA, thereby

“extend[ing] and compound[ing] the harms” the organization alleges. Id. Second, as we have explained, the

Air Force has taken a definitive position on hazardous

waste disposal at Tarague Beach for the 2021-2024 permitting period. Whether or not Guam EPA issues the

ligations, but also affords it the legal right to continue disposal operations under its prior permit.

33a

Air Force’s next RCRA permit, the Air Force has

reached an “administrative resting place” on this project, rendering its conduct ready for judicial review.

Id. (quoting Citizens for Better Forestry v. U.S. Dep’t of

Agric., 341 F.3d 961, 977 (9th Cir. 2003)). Third, “there

is no need for further factual development” because

“[f]or claims of procedural injury, we have held that the

need for factual development ceases when the alleged

procedural violation is complete.” Id. at 870-71; see

also Ohio Forestry, 523 U.S. at 737 (explaining that a

party challenging “a failure to comply with the NEPA

procedure may complain of that failure at the time the

failure takes place, for the claim can never get riper”).

Our final agency action holding therefore disposes of

any ripeness concern.

Failure to State a Claim

As an alternate ground for dismissal, the district

court held that Prutehi Litekyan failed to state a claim.

It reasoned that NEPA’s environmental review process

is “redundant” with RCRA’s permitting process, so

NEPA does not apply.

We do not agree. To explain why, we first clarify

the analytical framework for assessing whether another

statute exempts an agency from complying with NEPA’s

procedural requirements.

We then address why

RCRA complements, but does not substitute for, environmental review under NEPA.

NEPA pronounces that “Congress authorizes and directs that, to the fullest extent possible . . . public

laws of the United States shall be interpreted and administered with the policies [that NEPA] set[s] forth.”

42 U.S.C. § 4332. We have interpreted this “congressional mandate” as a “direction to ‘make as liberal an in-

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terpretation as we can to accommodate the application

of NEPA.’ ” LaFlamme v. F.E.R.C., 852 F.2d 389, 398

(9th Cir. 1988) (quoting Jones v. Gordon, 792 F.2d 821,

826 (9th Cir. 1986)).

Implementing that precept, our Court has recognized “only ‘two circumstances’ ” in which an agency

need not comply with NEPA’s procedural requirements

“in the presence of major federal action and despite an

absence of express statutory exemption”: (1) “where

doing so ‘would create an irreconcilable and fundamental conflict’ with the substantive statute at issue,” and

(2) where, “in limited circumstances, a substantive statute ‘displaces’ NEPA’s procedural requirements.”

Stand Up for California! v. U.S. Dep’t of Interior, 959

F.3d 1154, 1163-64 (9th Cir. 2020) (quoting Jamul Action Comm. v. Chaudhuri, 837 F.3d 958, 963 (9th Cir.

2016)).

The first of the two NEPA exemptions applies only

where an irreconcilable and fundamental statutory conflict is “clear and unavoidable.” Jones, 792 F.2d at 826

(quoting Flint Ridge Dev. Co. v. Scenic Rivers Ass’n of

Okla., 426 U.S. 776, 788 (1976)). For example, where

an agency’s substantive statute provides that a document filed with the agency automatically becomes effective in thirty days, there is no way an EIS could be

drafted, circulated, commented on, and revised in that

time frame. See Flint Ridge, 426 U.S. at 788. In that

circumstance, NEPA does not apply, as it conflicts with

the specific directive of the substantive statute governing the particular action.

It is possible and practicable for the Air Force to

comply with both NEPA and RCRA. As we have explained, the RCRA permitting process is “flexible

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enough to accommodate” NEPA’s procedural requirements. San Luis & Delta Mendota Water Auth. v.

Jewell, 747 F.3d 581, 648 (9th Cir. 2014). The NEPA

requirements apply before a permit application is submitted and do not involve any interaction with the permitting agency, here Guam EPA. The district court

correctly held that the conflict exemption is “not applicable in the instant case.”

Even if there is no conflict between NEPA and another statute, an alternative statute may “displace”

NEPA’s procedural requirements by “creat[ing] a[]

comparable process for ensuring environmental protection.” Stand Up for California!, 959 F.3d at 1165. So

we may discuss the displacement issue with clarity, we

first address some terminological confusion. At one

point, our Court distinguished between a “displacement” exemption to NEPA, which was said to apply

where “Congress [has] intended to displace one [statute’s environmental review] procedure with another,”

and a “functional equivalent” exemption, which was said

to apply where “one [statute’s] process requires the

same steps as another.” Douglas Cnty. v. Babbitt, 48

F.3d 1495, 1504 n.10 (9th Cir. 1995).

Over time, reliance on this distinction has faded. As

we stated more recently, “[r]egardless of the language

used to conduct the [second NEPA exemption] analysis,” the “factors” we consider are the “same.” Jewell,

747 F.3d at 651 n.51. Specifically, we ask whether the

environmental review processes set forth in NEPA and

the alternative statute are “sufficiently similar” that the

overlap renders NEPA superfluous, or “sufficiently different” that the divergence reflects Congress’s intent to

replace NEPA’s processes for those articulated in the

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alternative statute. Id. at 650 (comparing Douglas

Cnty., in which we held that Section 4 of the Endangered

Species Act displaced NEPA “because the[ir] processes

are sufficiently similar,” with Merrell v. Thomas, 807

F.2d 776, 779 (9th Cir. 1986), in which we held that the

Federal Insecticide, Fungicide, and Rodenticide Act displaced NEPA because their processes were “sufficiently

different” that Congress could not have intended regulated parties to comply with both).

(i)

We first consider whether the processes set forth in

NEPA and RCRA are so similar that compliance with

NEPA would be, in the district court’s words, “redundant.” Only on rare occasions has this Court held that

substantial overlap between NEPA and another statute

justifies exemption from NEPA’s environmental review.

In Municipality of Anchorage v. United States, for

example, we addressed whether a Memorandum of

Agreement between EPA and the U.S. Army that implemented dredge and fill guidelines mandated by the

Clean Water Act (CWA) was subject to NEPA. 980

F.2d 1320, 1328-29 (9th Cir. 1992). After concluding

that the CWA expressly exempted the Memorandum

from NEPA’s EIS requirement, Anchorage went on to

consider whether the Memorandum was subject to any

of NEPA’s other procedural requirements. We concluded that it was not, reasoning that “[i]n the CWA,

Congress instruct[ed] the EPA and the [Army] to consider many of the same things that NEPA would require

before adopting [the] guidelines.” Id. at 1329. In

other words, the “duties and obligations” imposed on the

federal agencies by the CWA would “insure that any action taken by the [EPA] administrator under [a section

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of the Act] w[ould] have been subjected to the ‘functional

equivalent’ of NEPA requirements.” Id. Because

NEPA’s purpose would be fulfilled by adhering to the

CWA’s procedural mandates, exemption from NEPA

was appropriate under “the circumstances of th[at]

case.” Id.

Under the circumstances of this case, NEPA exemption is not appropriate. There is, to be sure, some overlap between NEPA’s procedural requirements and Guam

EPA’s RCRA permitting process: Both require some

analysis of the environmental impact of a proposed action and some degree of public involvement. Compare

40 C.F.R. §§ 1500.1-1508.1 (2020) (describing environmental impact assessment and public engagement requirements under NEPA), with 40 C.F.R. §§ 270.14,

270.23(b) (requiring assessment of certain environmental impacts as part of the RCRA application process),

and 42 U.S.C. § 6974(b)(2) (providing for public notice,

and public hearing upon request, before the issuance of

a RCRA permit).

But critically, the timing of each statute’s prescribed

environmental review is entirely distinct, reflecting the

fundamentally different purposes of the two statutes.

Most notably, under NEPA, agencies must prepare an

EIS or EA and engage with the public before reaching a

final decision to undertake a particular activity that may

have significant environmental impact. See 40 C.F.R.

§ 1503.1 (2020). The point of NEPA’s environmental

review requirements is to assure that environmental assessment is “integrate[d]” at the “earliest possible time

to insure that planning and decisions reflect environmental values.” Andrus v. Sierra Club, 442 U.S. 347,

351 (1979) (quoting 43 Fed. Reg. 55992 (1978)). That

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timing assures that environmental impacts are not

“overlooked or underestimated” and then discovered, if

at all, “after resources have been committed or the die

otherwise cast.” Robertson, 490 U.S. at 349. Furthermore, building in environmental analyses at the planning and decisional stages allows nuanced adjustments

of the proposed project by those most familiar with the

project’s goals and practical limitations.

Review of a RCRA application, by contrast, considers

an applicant’s settled decision to handle hazardous

waste in a particular fashion and to seek permission,

here from Guam EPA, to so proceed. See, e.g., 22

Guam Admin. R. & Regs. § 30109(m)(a). Given that

role, an environmental agency’s application review under RCRA does not impose “ ‘action-forcing’ procedures” requiring a “ ‘hard look’ at environmental consequences” and “provid[ing] for broad dissemination of

relevant environmental information” before a wastehandling facility adopts the plan memorialized in its application. Robertson, 490 U.S. at 350 (quoting Kleppe,

427 U.S. at 410 n.21). Indeed, as the Dissent observes,

the environmental disclosures in the Air Force’s RCRA

application are “short and minimally descriptive,” and

“certainly not ‘precise’ by scientific or environmental

standards.” Dissent at 56. In any case, even if Guam

EPA conducts a careful post hoc environmental assessment of the Air Force’s application, it would be evaluating a commitment the Air Force had already made to a

specific course of action. And even though RCRA provides for public engagement before the issuance of a

permit, that public engagement cannot lead to the “internaliz[ation of] opposing viewpoints into [the Air

Force’s] decisionmaking process to ensure that [the

agency is] cognizant of all the environmental trade-

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offs”; RCRA public engagement, too, occurs only after

the Air Force has completed its decisionmaking.

Block, 690 F.2d at 771.

There is a related, key difference between NEPA and

RCRA. “[A]n integral part of [NEPA’s] statutory

scheme” is “[i]nformed and meaningful consideration of

alternatives—including the no action alternative.” Se.

Alaska Conservation Council, 649 F.3d at 1057 (quoting

Bob Marshall All., 852 F.2d at 1228). Specifically,

NEPA commands agencies to “study, develop, and describe appropriate alternatives to recommended

courses of action.” 42 U.S.C. § 4332(E) (1975); see also

id. at § 4332(C)(iii) (requiring that the EIS include a discussion of a “reasonable range of alternatives to the proposed agency action,” including a “no action alternative”); 40 C.F.R. § 1502.14 (2020) (detailing the requirements for the “alternatives section” of the EIS); id. at

§ 1501.5(c) (2020) (requiring discussion of alternatives

and environmental effects of alternatives in an EA).

RCRA, by contrast, does not demand the same kind

of in-depth analysis of alternatives, and so does not require the permit applicant to give the “full and meaningful consideration” that either an EIS or EA would require. Ctr. for Bio. Diversity v. Nat’l Highway Traffic

Safety Admin., 538 F.3d 1172, 1217-18 (9th Cir. 2008)

(quoting Native Ecosystems Council v. U.S. Forest

Serv., 428 F.3d 1233, 1245 (9th Cir. 2005)). The result

is that, as far as the RCRA application process is concerned, the Air Force can proceed on a single track approach in each application cycle, never meaningfully

considering whether an alternative approach to waste

disposal would achieve its purpose with less adverse environmental impacts.

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NEPA’s focus on the internal decisionmaking of operational agencies explains why this Court, and others,

have almost exclusively limited NEPA redundancy exemptions to agencies whose focus is protecting the environment. See, e.g., Anchorage, 980 F.2d at 1328-29 (exempting the EPA); Douglas Cnty, 48 F.3d at 1507-08

(Fish and Wildlife); Merrell, 807 F.2d at 781 (EPA);

Building Industry Ass’n of the Bay Area v. U.S. Dep’t.

of Commerce, 792 F.3d 1027, 1036 (9th Cir. 2015) (National Marine Fisheries Service). Even then, we have

cautioned against blanket NEPA exemptions for environmental agencies, as lightening this administrative

load may “result in no one policing the police.” Anchorage, 980 F.2d at 1328.

Other circuit courts have taken a similar approach. 10

For example, the Eleventh Circuit’s Siegelman decision, on which the district court heavily relied, concluded that EPA that need not comply with NEPA because RCRA provides substantially similar requirements. 911 F.2d at 504. The court noted that “an

agency need not comply with NEPA where the agency is

engaged primarily in an examination of environmenSee, e.g., Env’t Def. Fund, Inc. v. EPA, 489 F.2d 1247, 1257

(D.C. Cir. 1973) (“We conclude that where an agency is engaged

primarily in an examination of environmental questions, where

substantive and procedural standards ensure full and adequate

consideration of environmental issues, then formal compliance with

NEPA is not necessary, but functional compliance is sufficient.”)

(emphasis added); Tex. Comm. on Nat. Res. v. Bergland, 573 F.2d

201, 208 (5th Cir. 1978) (requiring NEPA compliance because

“[u]nlike an agency whose sole responsibility is to protect the environment, the Forest Service is charged with . . . both promotion of conservation of renewable timber resources and a duty to

ensure that there is a sustained yield of those resources available.”).

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tal questions and where ‘the agency’s organic legislation

mandate[s] specific procedures for considering the environment that [are] functional equivalents of the impact

statement process.’ ” Id. (quoting Tex. Comm. on Nat.

Res. v. Bergland, 573 F.2d 201, 207 (5th Cir. 1978)) (emphasis added).

Neither the Air Force nor the Department of Defense is “engaged primarily in an examination of environmental questions.” Id. Nor are they agencies

whose “raison d’etre is the protection of the environment and whose decision . . . is necessarily infused

with the environmental considerations so pertinent to

Congress in designing the statutory framework.” Id.

at 504 n.11 (quoting Int’l Harvester Co. v. Ruckelshaus,

478 F.2d 615, 650 n.130 (D.C. Cir. 1973)). The Air

Force and Department of Defense focus instead on protecting national security. See 50 U.S.C. § 3002; 10

U.S.C. § 9062(c). It is NEPA that requires the Air

Force to incorporate environmental considerations into

its decisionmaking process, not the statutes that govern

its principal operations. Given the non-environmental

priorities of the Air Force and its parent agency, NEPA

requires incorporation of environmental considerations

where they would not otherwise be taken into account.

“NEPA must be accorded full vitality [especially] as to

non-environmental agencies. . . . ” Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 387 (D.C. Cir.

1973).

In sum, key differences demonstrate that the processes outlined in NEPA and RCRA are fundamentallty

dissimilar in important respects.

Compliance with

RCRA does not render NEPA “superfluous.”

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(ii)

As to the flipside analysis—whether the differences

between NEPA and RCRA justify the inference that

Congress did not mean for them to coexist—the Air

Force contends that the differences between the two

statutes suggest that RCRA “leaves little room for the

imposition of the NEPA requirements.” We reject this

variant of the NEPA displacement argument as well, for

several reasons.

First, we reiterate that the issue here is not whether

NEPA applies to the “RCRA permitting process,” which

begins once a RCRA permit application is filed. As we

have explained, the question instead is whether NEPA

applies to an agency’s antecedent decision to dispose of

hazardous waste in a particular manner at a particular

location, a decision memorialized in the permit application before Guam EPA reviews the application using

RCRA standards.

Eliding this distinction, the Air Force points to an

EPA regulation stating that RCRA permits “are not

subject to the [EIS] provisions of section 102(2)(C)” of

NEPA. 40 C.F.R. § 124.9(b)(6). According to the Air

Force, this regulation supports the conclusion that

NEPA does not apply when RCRA does. Not so.

The regulation invoked is labeled “Administrative

record for draft permits when EPA is the permitting authority.” Id. at § 124.9. As its title suggests, the regulation prescribes the content of the record “[for preparing] a draft permit.” So the regulation is directed

at EPA and clarifies that EPA is not subject to NEPA’s

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EIS provisions.11 Siegelman so recognized, noting that

“EPA need not comply with NEPA when granting

RCRA permits.” 911 F.2d at 502 (emphasis added).

The EPA rule says nothing about how NEPA applies to

internal decisionmaking by a prospective RCRA applicant.12

Second, nothing in RCRA’s language or structure

suggests that applying the statute alongside NEPA

would “sabotage the delicate machinery that Congress

designed” in enacting RCRA. Merrell, 807 F.2d at 779.

Congress enacted RCRA after NEPA became effective

and subsequently amended RCRA a few times without

providing that NEPA would apply to underlying decisions by applicants to engage in hazardous waste disposal. Silence—especially silence concerning a decisionmaking process not itself covered by RCRA—does

not indicate that Congress intended to override NEPA’s

mandates as to potential permit applicants before they

have submitted a RCRA permit application. “Congress has repeatedly demonstrated that it knows how to

exempt particular substantive statutes from the EIS re11

We note that it is far from clear that the regulation applies

when EPA is not the permitting agency. Here the EPA is not—

Guam EPA is.

The Air Force also points to a CEQ regulation providing for

environmental review coordination between federal and state or local agencies and suggests that it obviates the need for multiple

agencies to conduct separate NEPA analyses. 40 C.F.R. § 1501.7(g)

(2020); see also 42 U.S.C. § 4370m-4(a) (2015) (describing the need

for concurrent environmental review under NEPA and other environmental review statutes “to the maximum extent practicable”).

But coordination of environmental review does not relieve agencies

of the obligation to comply fully with all applicable environmental

laws.

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quirement when it wishes to do so.”

at 647.

Jewell, 747 F.3d

Further, assuming, without deciding, that Congress

has tacitly approved of EPA’s exemption from NEPA as

a RCRA permitting authority, as EPA’s regulation provides, that inference supports, rather than detracts

from, the conclusion that there is no exemption for a permit applicant’s internal decisionmaking process preceding its submission of a permit application. See id.

Any inferred EPA exemption from NEPA regarding the

RCRA permitting process would flow from the RCRA

provisions governing that process.

There are no

RCRA provisions prescribing the process by which operational agencies decide whether, and, if so, how, to dispose of hazardous waste.

The Air Force likens this case to Merrell, in which we

considered whether “Congress intend[ed] to superimpose NEPA’s procedures on top of the [pesticide] registration procedure” outlined in the Federal Insecticide,

Fungicide, and Rodenticide Act (FIFRA). 807 F.2d at

778. We held that post-NEPA amendments to FIFRA

made clear that Congress “d[id] not intend to make

NEPA apply” to the federal process for registering pesticides. Id. at 780.

The analogy is inapposite. For one, Merrell concerned whether NEPA applies to the EPA when it registers pesticides under FIFRA, not whether the statute

applies to a regulated entity as it decides whether to apply to register and use a pesticide.

For another, RCRA’s text and focus do not give rise

to the same displacement concerns as FIFRA’s. Some

of Congress’s amendments to FIFRA created clear tensions between FIFRA and NEPA, bordering on out-

45a

right conflict. For example, one amendment to FIFRA

required the EPA Administrator to act “as expeditiously as possible” in processing a FIFRA registration

application, with Congress expecting the Administrator

to “reach a decision within three months of receiving an

application.” Id. at 778. Merrell explained that this

“time frame [wa]s incompatible with the lengthy research and hearings that are ordinarily part of preparing an EIS.” Id. Another amendment provided that

the Administrator would make available to the public

the information on which he based a decision to register

a pesticide within thirty days of that decision, but it prevented him from releasing that information if it included

test data or contained trade secrets. Id. Merrell explained that NEPA’s public notice requirement “does

not contain equivalent restrictions.” Id.

A second set of FIFRA amendments—which, among

other things, waived certain procedural requirements

for applicants and liberalized standards associated with

pesticide registration—reflected Congress’s specific intent to “lighten the ‘regulatory burdens upon the [pesticide] industry, pesticide users, and non-Federal regulatory agencies.’ ” Id. at 779 (quoting S. Rep. No. 95-334,

at 26-27 (1977)). Given this legislative context, Merrell

concluded, “[t]o apply NEPA to FIFRA’s registration

process would sabotage the delicate machinery that

Congress designed to register new pesticides” and “increase a regulatory burden that Congress intentionally

lightened.” Id.

There are no such near-conflicts or legislative crosspurposes here. NEPA and RCRA achieve fundamentally different, but complementary, goals. NEPA ensures that federal agencies, with meaningful public in-

46a

put, take a “hard look” at a comprehensive set of environmental impacts before making their decisions.

Robertson, 490 U.S. at 350. RCRA seeks to reduce and

regulate the generation of hazardous waste in a way that

“minimize[s] the present and future threat to human

health and the environment,” 42 U.S.C. § 6902(b). If

anything, applying NEPA to an agency’s antecedent decision to dispose of hazardous waste furthers, rather

than detracts from, RCRA’s statutory purpose.

In sum, RCRA is not so similar to NEPA that it renders NEPA review redundant, nor is it so different from

NEPA to suggest that Congress did not intend compliance with both statutes. We therefore reverse the dismissal of Prutehi Litekyan’s complaint for failure to

state a claim under NEPA.

III.

CONCLUSION

Contrary to its rulings, the district court had subject

matter jurisdiction over Prutehi Litekyan’s claim, and

NEPA applies to the Air Force’s decision to conduct

OB/OD operations at Tarague Beach for another three

years. The district court judgment dismissing the case

is therefore REVERSED AND REMANDED for proceedings consistent with this opinion.

VANDYKE , Circuit Judge, dissenting:

Defendants have undertaken their open burn and

open detonation (OB/OD) operations at their Explosive

Ordnance Disposal (EOD) range since the early 1980s.

As required by the Resource Conservation and Recovery Act (RCRA), Defendants first applied for a permit

to conduct such operations more than four decades

ago—in 1982. To continue implementing their ongoing

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OB/OD operations, Defendants like clockwork have applied to renew that same permit every three years,

which the Guam Environmental Protection Agency

(Guam EPA) has always evaluated and then granted.

Following Defendants’ submission of their application in 2021 (the Application), Plaintiff brought suit alleging that the National Environmental Policy Act’s

(NEPA) requirements applied to Defendants’ submission of the Application. But in doing so, Plaintiff ’s lawsuit failed to challenge any final agency action. Defendants’ decision to submit the Application (1) merely

facilitated ongoing operations rather than marking the

culmination of any agency decisionmaking process and

(2) did not determine the legal rights of any parties.

Absent final agency action, our court lacks statutory jurisdiction to consider the merits of this case. I thus respectfully dissent. 1

The district court correctly dismissed Plaintiff ’s case

under Rule 12(b)(1) because Plaintiff failed to challenge

a final agency action. To qualify as final agency action,

“two conditions must be satisfied.” Bennett v. Spear,

520 U.S. 154, 177 (1997) (citations omitted). “First, the

action must mark the ‘consummation’ of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature.” Id. at 177-78 (citations

omitted). “And second, the action must be one by which

‘rights or obligations have been determined,’ or from

Because I would decide this case at the threshold issue of final

agency action, it is unnecessary for me to address the majority’s

other arguments regarding whether Plaintiff had standing, and

whether the RCRA permitting requirements have displaced NEPA in

the context of RCRA permitting.

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which ‘legal consequences will flow.’ ” Id. at 178 (citation omitted). Without satisfying these conditions, “[a]

claim is not ripe for adjudication.” Texas v. United

States, 523 U.S. 296, 300 (1998).

Before turning to the analysis of the Bennett conditions, it is important to first be clear about the precise

final agency action Plaintiff challenges. Contrary to

the majority’s characterization, Plaintiff ’s theory has

been anything but “consistently framed.”

Rather,

Plaintiff has changed its theory as to what agency “action” it is challenging repeatedly throughout this litigation, and has in fact abandoned the theory that the majority now adopts.

Plaintiff initially argued in its complaint before the

district court that the “final agency action” it was challenging was just the submission of the Application (the

“Application-only theory”).2 But the Application alone

To be precise, Plaintiff claimed that Defendants’ “decision to

seek renewal of the . . . [p]ermit for OB/OD operations . . .

and submit[] their [A]pplication” constituted the “final agency action” it was challenging. The majority adopts that framing. But

this framing reduces to merely submitting the Application because

the supposed decision to submit adds nothing. The agency would

never submit an application without deciding to do so. And if the

agency supposedly “decided” to submit the application, but for

some reason never did so, then it’s not accurate to say the agency

“finally” decided to submit an application it never submitted. Adding

the decision to submit the application to the submission itself is

thus mere makeweight. Plaintiff ’s initial theory (and the majority’s adoption of it) is properly characterized as just the submission

of the Application. Even Plaintiff appeared to acknowledge as

much elsewhere in its complaint when it appropriately referred to

just submitting the Application.

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is not a final agency action. It is merely a request to

initiate a decisionmaking process—not the culmination

of one. See Indus. Customers of Nw. Utilities v. Bonneville Power Admin., 408 F.3d 638, 646-47 (9th Cir. 2005)

(holding that a decision, even if it has “immediate . . .

impact,” is not a final agency action when it merely

“serves . . . to initiate the proceedings” (cleaned

up)).

Presumably recognizing that the Application alone

was not enough, Plaintiff quickly changed its tune.

Running away from the Application-only theory, Plaintiff switched to insisting that “the challenged action is

not the RCRA application itself ” (emphasis added), but

rather “Defendants’ failure to comply with NEPA before deciding to ‘conduct open burning and open detonation . . . at Anderson Air Force Base’ ” (cleaned up).

But this “NEPA violation-only theory” likewise falls

short of final agency action and is foreclosed by our

precedent. When a plaintiff alleges that an agency has

“never undertaken the environmental assessments required by NEPA,” it must still identify a separate final

agency action to invoke judicial review. Whitewater

Draw Nat. Res. Conservation Dist. v. Mayorkas, 5

F.4th 997, 1010 (9th Cir. 2021); see also In re Border Infrastructure Env’t Litig., 915 F.3d 1213, 1225 (9th Cir.

2019).3 Moreover, Plaintiff has never cited the statuBinding precedent is clear on this point. The Supreme Court

held in Lujan v. National Wildlife Federation that the plaintiff

had failed to identify “a ‘final agency action’ ” despite allegations

that the agency “fail[ed] to provide required public notice” and

“fail[ed] to provide adequate [EISs].” 497 U.S. 871, 890-91 (1990).

Other circuits also recognize this. In Public Citizen v. Office of

the United States Trade Representatives, the D.C. Circuit held

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tory basis for an agency action unlawfully withheld, 5

U.S.C. § 706(1), or the relevant test for a “failure to act”

claim. See Hells Canyon Pres. Council v. U.S. Forest

Serv., 593 F.3d 923, 932 (9th Cir. 2010) (concluding there

was no final agency action where the “agency failed to

take a discrete agency action that it is required to

take”—i.e., a “specific legislative command” (cleaned

up)). The majority doesn’t even address this replacement theory—which is the theory that Plaintiff finally

settled on in the district court—apparently because the

majority too recognizes that the failure to prepare a required environmental analysis can’t possibly serve as

the basis for final agency action.

By the time this matter reached us, however, Plaintiff shifted once more—again, implicitly recognizing the

shortcomings of both its abandoned theories. This

time, Plaintiff resurrected the submission of the Application but added something more: the Application

plus the automatic extension to continue OB/OD operations that flows from the submission of an application is

what Plaintiff argued to us qualifies as final agency action (the “Application-plus theory”). 4 But the automatic extension was not once mentioned in Plaintiff ’s

complaint. And Plaintiff never amended its complaint

to pursue the Application-plus theory. Even if it had,

this temporary extension of the prior permit is still not

a final agency action because it merely implements a

pre-existing plan formed decades ago, does not alter the

that the “refusal to prepare an EIS is not itself a final agency action

for purposes of APA review.” 970 F.2d 916, 918-19 (D.C. Cir.

1992).

Plaintiff does still mention the failure to prepare a NEPA analysis in this appeal. But it primarily presses its new Application plus theory.

51a

status quo, and does not determine any rights. See

Wild Fish Conservancy v. Jewell, 730 F.3d 791, 801 (9th

Cir. 2013). Nevertheless, Plaintiff appears to have ultimately settled on the Application-plus theory and, as

far as I can tell, has abandoned the Application-only theory.

The majority does not differentiate between Plaintiff ’s various theories, and it does not rely on the

Application-plus theory that Plaintiff has pressed in this

appeal.5 Instead, the majority relegates any discussion

of the Application-plus theory to a mere footnote. By

resurrecting Plaintiff ’s abandoned Application-only

theory, the majority does not just improperly make itself an advocate for one of the parties in this case. It

issues a sweeping decision concluding that an essentially

perfunctory action—effectively copying and pasting the

same application and resubmitting it every three years

—is enough to trigger final agency action and license potential judicial review. But “federal courts ‘have long

recognized that the term [agency action] is not so allencompassing as to authorize [courts] to exercise judicial review over everything done by an administrative

agency.’ ” Wild Fish Conservancy, 730 F.3d at 800-01

(alterations in original) (quoting Fund for Animals, Inc.

v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 19 (D.C. Cir.

The majority accuses me and the Defendants of misidentifying

the final agency action in this case as “Guam EPA’s eventual permitting decision under RCRA.” That’s a particularly strange accusation, given that all the majority needs to do is read this dissent

to see that I nowhere say that. Nor do Defendants describe Plaintiff ’s theory in this way. So in addition to three theories that

Plaintiff actually presented (while abandoning two of them), the

majority briefly adds a fourth strawman of its own creation that it

deftly smacks down.

52a

2006)). And for good reason. Such a broad theory

would subject almost every operational action to judicial

review. Yet that is what the majority blesses here, creating tension with this circuit’s precedents, as well as

other circuits’ precedents, in the process.

Turning to the Bennett analysis, I start with the Application itself given the majority’s focus on the Application-only theory. Putting aside Plaintiff ’s implied rejection of this theory by abandoning it on appeal, submission of an application is a far cry from final agency

action. Not only is there no threshold agency action,

but it also fails to satisfy the Bennett conditions. There

is no culmination of decisionmaking, no change to the

status quo, and no resulting impact on any legal rights

or obligations.

As an initial matter, “for there to be ‘final agency action,’ there must first be ‘agency action.’ ” S.F. Herring Ass’n v. Dep’t of the Interior, 946 F.3d 564, 575 (9th

Cir. 2019) (citation omitted). “Agency action” is defined as including “the whole or a part of an agency rule,

order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). A

qualifying agency action is “final” only if its impact is

“direct and immediate.” Franklin v. Massachusetts,

505 U.S. 788, 796-97 (1992). Put differently, an action

cannot be “final” unless it “mark[s] the ‘consummation’

of the agency’s decisionmaking process” rather than being “merely tentative or interlocutory [in] nature.”

Bennett, 520 U.S. at 178.

53a

Defendants’ submission of the Application fails this

threshold requirement because it “does not fit into any

of the statutorily defined categories for agency action.”

Mont. Wilderness Ass’n v. United States, 314 F.3d 1146,

1150 (9th Cir. 2003), cert. granted, vacated on other

grounds sub. nom. by Veneman v. Mont. Wilderness

Ass’n, Inc., 542 U.S. 917 (2004). The Application is not

itself a license, nor does it approximate any other category in 5 U.S.C. § 551(13). By its very nature, a permitting process is pending until the permit is issued.

See, e.g., Int’l Bhd. of Teamsters v. U.S. Dep’t of

Transp., 861 F.3d 944, 952-53 (9th Cir. 2017) (concluding

that a report was not a final agency action despite the

fact it “clear[ed] the way” for permits to be issued); Columbia Riverkeeper v. U.S. Coast Guard, 761 F.3d 1084,

1093 (9th Cir. 2014) (holding that one agency’s recommendation to another agency on a permit application

was not a final agency action); City of San Diego v. Whitman, 242 F.3d 1097, 1098 (9th Cir. 2001) (concluding

that a letter setting forth an agency’s legal position on

renewal of a permit was not a final agency action until a

final decision was issued on the permit). A step taken

by an agency along the way toward securing a permit in

the future is inherently “interlocutory [in] nature” and

not a final disposition. Bennett, 520 U.S. at 178. Despite this clear understanding in our case law about the

interlocutory nature of a permit process, the majority

incorrectly treats the mere submission of the Application as an agency statement of “particular applicability”

that qualifies as agency action.

Even if this threshold requirement was satisfied, the

majority does not identify a concrete final decision that

54a

marks the culmination of Defendants’ decisionmaking

process. The majority describes the Application as

“mark[ing] an endpoint, not a starting point.” But the

Application was neither—it was a midpoint. Characterizing the Application as an “endpoint” overlooks the fact

that submitting the Application only initiated a permit

process that would allow Defendants to continue their

longstanding OB/OD operations. See Indus. Customers of Nw. Utilities, 408 F.3d at 646-47. The actual

endpoint hasn’t even occurred yet. It will occur if the

permit process culminates in the approval of the new

permit.

The majority acknowledges that what it characterizes as “the ‘consummation’ of [Defendants’] decisionmaking process when it filed its permit application” was

merely a decision to “continue” what the agency has

been doing for decades—conducting OB/OD operations

since 1982.6 No doubt, preparing and filing the Application was a decision. But the same is true for an endless number of potential midpoint acts, such as completing a particular burning or detonation operation, putting

gas in a vehicle to drive to the location where that burning or detonation will commence, or deciding to sharpen

your pencil to fill out some ancillary paperwork. Pointing to some completed act does not automatically transform it into final agency action. Submitting the Application, as Defendants have routinely done every three

years, merely complied with Guam EPA’s requirement

so that Defendants could continue OB/OD operations.

It was an intermediate step toward what could, eventually, be a final action (approval of the permit). Put difThe majority also incorrectly states the Air Force decided to

“restart OB operations,” which I address below.

55a

ferently, it was just another intermediate act that

“clear[ed] the way” for a permit to be issued in furtherance of Defendants’ consistent activity that has not

changed since it originally started four decades ago.

Columbia Riverkeeper, 761 F.3d at 1093.

The closest the majority comes to identifying final

agency action is by pointing to the submission of the Application as “memorializ[ing] the agency’s decision.”

But, as explained above, the submission of the Application itself does not “mark the ‘consummation’ of [Defendants’] decisionmaking process,” Bennett, 520 U.S.

at 178, because it “merely implement[ed] operational

plans” already established for the EOD range long ago,

Wild Fish Conservancy, 730 F.3d at 801. In furtherance of their ongoing operational plan, Defendants routinely reapplied to renew their RCRA permit every

three years. They did not reopen their decisionmaking

process along with each permit application. To the

contrary, Defendants’ longstanding decision, first made

in 1982, was even reflected in the latest Application:

that “the OB/OD units will be operated until the Air

Force Base ceases operation.” There is no evidence to

the contrary and it strains credulity to assume otherwise. The submission of the Application continued to

“merely implement” preexisting “operational plans.”

Wild Fish Conservancy, 730 F.3d at 801.

In fact, the record supports that Defendants did not

at all “revisit[] the question of ” the environmental

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.