Amicus Curiae Brief — Department of the Air Force, et al., Petitioners v. Prutehi Guahan, fka Prutehi Litekyan
Supreme Court briefMay 29, 2026
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No. 25-579
In the Supreme Court of the United States
__________________
UNITED STATES DEPARTMENT OF
THE AIR FORCE , ET AL.,
Petitioners,
v.
PRUTEHI GUAHAN,
Respondent.
__________________
On Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
__________________
BRIEF OF THE CHAMBER OF COMMERCE OF THE UNITED
STATES OF AMERICA, AMERICAN CEMENT ASSOCIATION,
AMERICAN FOREST & PAPER ASSOCIATION, AMERICAN ROAD
& TRANSPORTATION BUILDERS ASSOCIATION, ASSOCIATED
GENERAL CONTRACTORS OF AMERICA, INC., CENTER FOR
LNG, NATIONAL ASSOCIATION OF MANUFACTURERS, AND
NATURAL GAS SUPPLY ASSOCIATION
AS AMICI CURIAE S UPPORTING P ETITIONERS
__________________
Andrew R. Varcoe
Stephanie A. Maloney
U.S. CHAMBER LITIGATION
CENTER
1615 H Street, NW
Washington, DC 20062
Counsel for the Chamber
of Commerce of the United
States of America
Michael R. Huston
Counsel of Record
Nicholas S. Crown
Addison W. Bennett
PERKINS COIE LLP
700 Thirteenth St., N.W.
Suite 800
Washington, DC 20005-3960
(202) 434-1630
MHuston@perkinscoie.com
Counsel for Amici Curiae
(Additional counsel listed inside cover)
Leah Pilconis
AMERICAN CEMENT ASSOCIATION
200 Massachusetts Ave NW, Suite 200
Washington, DC 20001
Counsel for American Cement Association
Prianka P. Sharma
AMERICAN ROAD &
TRANSPORTATION
BUILDERS ASSOCIATION
250 E Street SW, Suite 900
Washington, DC 20024
Counsel for American Road &
Transportation Builders Association
J. Spencer Phillips
ASSOCIATED GENERAL CONTRACTORS
OF AMERICA, INC.
53 D St SE
Washington, DC 20003
Counsel for Associated General Contractors
of America, Inc.
Erica Klenicki
Caroline McAuliffe
NATIONAL ASSOCIATION OF MANUFACTURERS
733 10th Street, N.W.
Suite 700
Washington, DC 20001
Counsel for National Association of Manufacturers
i
TABLE OF CONTENTS
Interest of Amici Curiae ..................................................... 1
Introduction and Summary of Argument......................... 6
Argument ............................................................................. 8
I. An application to renew a RCRA permit is not
final agency action under the APA.............................. 8
A. The Air Force’s permit-renewal application
did not consummate agency decisionmaking
and carried no legal consequences ........................ 9
B. The Ninth Circuit’s expansive view of final
agency action would destabilize settled APA
doctrine and saddle the federal permitting
process with premature litigation ....................... 13
II. Congress displaced NEPA’s default
requirements by enacting RCRA’s specialized
and comprehensive system for regulating
hazardous waste .......................................................... 17
A. RCRA’s rigorous, start-to-finish regulatory
framework supplies the operative
environmental-review requirements here .......... 18
B. Layering NEPA on top of RCRA would be
duplicative, costly, and unsupported ................... 25
Conclusion .......................................................................... 30
ii
TABLE OF AUTHORITIES
PAGES
CASES
350 Montana v. Haaland,
50 F.4th 1254 (9th Cir. 2022) ....................................... 23
AFGE v. Trump,
139 F.4th 1020 (9th Cir. 2025) ..................................... 15
AFSCME v. OMB,
No. 25-cv-8302, 2025 WL 3018250
(N.D. Cal. Oct. 28, 2025) .............................................. 15
Alabama ex rel. Siegelman v. EPA,
911 F.2d 499 (11th Cir. 1990) ........................... 19-20, 25
Army Corps of Eng’rs v. Hawkes Co.,
578 U.S. 590 (2016) ......................................................... 8
Bark v. USFS,
958 F.3d 865 (9th Cir. 2020) ........................................ 23
Bennett v. Spear,
520 U.S. 154 (1997) ............................................... 6, 8, 11
Biden v. Texas,
597 U.S. 785 (2022) ....................................................... 11
Cellular Phone Taskforce v. FCC,
205 F.3d 82 (2d Cir. 2000) ............................................ 21
City of Chicago v. Environmental Def. Fund,
511 U.S. 328 (1994) ............................................. 6, 18, 25
Corner Post, Inc. v. Board of Governors
of Fed. Rsrv. Sys.,
603 U.S. 799 (2024) ....................................................... 13
Dalton v. Specter,
511 U.S. 462 (1994) ....................................................... 11
iii
DOT v. Public Citizen,
541 U.S. 752 (2004) ....................................................... 24
Douglas County v. Babbitt,
48 F.3d 1495 (9th Cir. 1995) ........................................ 21
Environmental Def. Fund, Inc. v. EPA,
489 F.2d 1247 (D.C. Cir. 1973) .................................... 21
Flint Ridge Dev. Co. v. Scenic Rivers Ass’n of Okla.,
426 U.S. 776 (1976) ....................................................... 20
Forest Grove Sch. Dist. v. T.A.,
557 U.S. 230 (2009) ....................................................... 22
Franklin v. Massachusetts,
505 U.S. 788 (1992) .................................................... 9-11
Friends of the Everglades, Inc. v. Secretary of
U.S. Dep’t of Homeland Sec.,
No. 25-12873, 2026 WL 1077624
(11th Cir. Apr. 21, 2026)............................................... 14
FTC v. Standard Oil Co. of California,
449 U.S. 232 (1980) .................................................... 9-11
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) ....................................................... 22
Meghrig v. KFC W., Inc.,
516 U.S. 479 (1996) ................................................. 18, 25
Merrell v. Thomas,
807 F.2d 776 (9th Cir. 1986) ........................................ 21
NTEU v. Vought,
149 F.4th 762 (D.C. Cir. 2025) ..................................... 14
Portland Cement Ass’n v. Ruckelshaus,
486 F.2d 375 (D.C. Cir. 1973) ...................................... 21
RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
566 U.S. 639 (2012) ................................................... 7, 20
iv
Seven County Infrastructure Coal. v. Eagle County,
605 U.S. 168 (2025) ................. 6, 14-15, 19, 23-24, 26, 28
South Terminal Corp. v. EPA,
504 F.2d 646 (1st Cir. 1974) ......................................... 21
Tanzin v. Tanvir,
592 U.S. 43 (2020) ......................................................... 23
Thunder Basin Coal Co. v. Reich,
510 U.S. 200 (1994) ......................................................... 7
Western Neb. Res. Council v. EPA,
943 F.2d 867 (8th Cir. 1991) ........................................ 21
Western Watersheds Project v. Abbey,
719 F.3d 1035 (9th Cir. 2013) ...................................... 23
Wyoming v. Hathaway,
525 F.2d 66 (10th Cir. 1975) ........................................ 21
STATUTES
5 U.S.C.
§ 558(c) ........................................................................... 12
§ 558(c)(2) ...................................................................... 12
§ 704 .................................................................. 6, 8, 13-14
15 U.S.C.
§ 717f .............................................................................. 17
§ 793(c)(1) ...................................................................... 24
16 U.S.C. § 3636(a) ............................................................. 24
21 U.S.C. § 360 .................................................................... 17
28 U.S.C. § 2401(a) ............................................................. 14
33 U.S.C.
§ 1344 ............................................................................. 17
§ 1371(c)(1) .................................................................... 24
v
42 U.S.C.
§ 4332(2)(C) ................................................................... 20
§ 4336(a)(2) ............................................................... 7, 22
§ 4336(a)(3) ............................................................... 7, 22
§ 4336a(g) ...................................................................... 27
§ 5159 ............................................................................. 24
§ 6924(a) .................................................................. 18, 26
§ 6925(a) ........................................................................ 18
§ 6925(c)(3) .............................................................. 19, 26
§ 6925(d) ........................................................................ 19
§ 6926(f) ........................................................................... 9
§ 6974(b) .......................................................................... 9
§ 6974(b)(2) .............................................................. 19, 26
43 U.S.C. § 1761 .................................................................. 17
47 U.S.C. § 307 .................................................................... 17
49 U.S.C. § 44706 ................................................................ 17
Federal Facility Compliance Act of 1992
(FFCA), Pub. L. No. 102-386, 106 Stat. 1505 ............ 22
Hazardous and Solid Waste Amendments of
1984, Pub. L. No. 98-616, 98 Stat. 3221 ...................... 22
Interstate Land Sales Full Disclosure Act,
Pub. L. No. 90-448, 82 Stat. 590 (1968) ...................... 20
Land Disposal Program Flexibility Act of
1996, Pub. L. No. 104-119, 110 Stat. 830 .................... 22
Metropolitan Washington Waste
Management Study Act, Pub. L. No.
102-386, tit. II, § 203(a), 106 Stat. 1505 ...................... 22
vi
REGULATIONS
10 C.F.R.
pt. 52 .............................................................................. 17
pt. 54 .............................................................................. 17
40 C.F.R.
§ 124.3(c) .......................................................................... 9
§ 124.3(d) ......................................................................... 9
§ 124.6 ............................................................................ 26
§ 124.6(a) ......................................................................... 9
§ 124.6(e).................................................................... 9, 19
§ 124.8(b)(5) ............................................................. 19, 26
§ 124.9(b)(6) ............................................................... 7, 21
§ 124.14(b) ....................................................................... 9
§ 124.17 .................................................................... 19, 26
§ 124.19(l࣠)(2) ................................................................. 12
§ 261.31(a)...................................................................... 29
§ 261.32 .......................................................................... 29
§ 261.33(e)...................................................................... 29
§ 261.33(f) ...................................................................... 29
§ 266.80(a)...................................................................... 29
§ 270.13 .......................................................................... 26
§ 270.13(i) ...................................................................... 18
§ 270.14 .......................................................................... 26
§ 270.14(b)(2) ................................................................. 18
§ 270.14(b)(8) ................................................................. 19
§ 270.51(a)...................................................................... 12
§ 273.2 ............................................................................ 29
44 Fed. Reg. 34,244 (June 14, 1979) ........................... 21, 26
45 Fed. Reg. 33,290 (May 19, 1980) .................................. 21
vii
85 Fed. Reg. 43,304 (July 16, 2020) .................................. 21
OTHER AUTHORITIES
Aidan Mackenzie,
How NEPA Will Tax Clean Energy, Inst. for
Progress (July 25, 2024) ............................................. 28
Congressional Research Service,
The National Environmental Policy Act (NEPA):
Background and Implementation
(Jan. 10, 2011) ............................................................... 28
Council on Environmental Quality,
Fact Sheet: CEQ Report on Environmental Impact
Statement Timelines (2010-2018)
(June 12, 2020) .............................................................. 26
Council on Environmental Quality,
Fact Sheet: CEQ Report on Environmental
Impact Statement Timelines (2010-2024)
(Jan. 13, 2025) ............................................................... 27
Environmental Protection Agency,
Resource Conservation and Recovery
Act (RCRA) Overview ................................................... 7
Government Accountability Office,
GAO-14-370, National Environmental
Policy Act: Little Information Exists
on NEPA Analyses (Apr. 15, 2014) ........................... 27
Mark C. Rutzick,
A Long and Winding Road: How the National
Environmental Policy Act Has Become the Most
Expensive and Least Effective Environmental
Law in the History of the United States, and How
to Fix It, Regulatory Transparency Project
(Oct. 16, 2018) ............................................................... 27
viii
Martin Durbin,
It’s Time to Permit America to Build,
U.S. Chamber of Commerce (Apr. 5, 2023) ............... 16
Rayan Sud et al.,
How to Reform Federal Permitting to Accelerate
Clean Energy Infrastructure: A Nonpartisan
Way Forward, Brookings Inst. (Feb. 2023) .............. 28
U.S. Chamber of Commerce,
Permit America to Build ............................................ 16
1
INTEREST OF AMICI CURIAE 1
The Chamber of Commerce of the United States of
America (Chamber) is the world’s largest business federation. The Chamber represents approximately 300,000
direct members and indirectly represents the interests
of more than three million companies and professional
organizations of every size, in every industry sector, and
from every region of the country. An important function
of the Chamber is to represent the interests of its members in matters before Congress, the Executive Branch,
and the courts. To that end, the Chamber regularly files
amicus curiae briefs in cases, like this one, that raise
issues of concern to the nation’s business community.
The American Cement Association (ACA), founded
in 1916, is the premier policy, research, education, and
market intelligence organization serving America’s
cement manufacturers. ACA represents a majority of
U.S. cement manufacturers, and advocates on their
behalf before Congress, the Administration, federal
agencies, the courts, and the media. The Association
promotes safety, sustainability, and innovation in all
aspects of cement manufacturing and construction, fosters continuous improvement in manufacturing and distribution practices, and supports economic growth and
sound infrastructure investment throughout the United
States. As part of its core mission and purpose, ACA
engages in regulatory advocacy and litigation to protect
its members’ interests, including filing briefs in cases
No counsel for any party authored this brief in whole or in part. No
entity or person, aside from amici curiae, their members, or their
counsel, made any monetary contribution intended to fund the preparation or submission of this brief.
1
2
involving federal environmental and safety regulations
affecting the cement industry.
The American Forest & Paper Association (AF&PA)
serves to advance public policies that foster economic
growth, job creation, and global competitiveness for a
vital sector that makes the essential paper and packaging products Americans use every day. The U.S. forest
products industry employs more than 925,000 people,
largely in rural America, and isௗamong the top 10 manufacturing sector employersௗin 44 states. The AF&PA’s
industry accounts for approximately 4.7% of the total
U.S. manufacturing GDP, manufacturing more than
$435 billion in products annually. AF&PA member companies are significant producers and users of renewable
biomass energy and are committed to making sustainable products for a sustainable future through the industry’s decades-long initiative—Better Practices, Better
Planet 2030.
The American Road & Transportation Builders
Association (ARTBA) includes private and public sector
members that plan, design, build, and maintain the nation’s roadways, waterways, bridges, ports, airports, rail,
and transit systems. ARTBA’s nearly 8,000 members generate more than $650 billion annually in U.S. economic
activity, sustaining more than 4.4 million American jobs.
Many ARTBA members are directly involved in projects
subject to several environmental review and permitting
requirements. ARTBA members are committed to balancing the goals of improving our nation’s transportation
infrastructure with the need to protect the environment.
Consequently, ARTBA has an interest in this case
because the Court’s resolution of the issues presented
may have broader implications for the administration of
3
federal review and permitting frameworks applicable to
transportation construction projects.
The Associated General Contractors of America, Inc.
(AGC of America) is the nation’s largest and most diverse
trade association in the commercial construction industry,
now representing more than 28,000 member companies
that include general contractors, specialty contractors,
and service providers and suppliers to the industry
through a nationwide network of chapters in all 50 states,
as well as over 150 student chapters located at universities
nationwide. AGC of America represents both union- and
open-shop employers engaged in building, heavy, civil, industrial, utility, and other construction for both public and
private property owners and developers. AGC of America
works to ensure the continued success of the commercial
construction industry by advocating for federal, state, and
local measures that support the industry; providing education and training for member firms; and connecting
member firms with resources needed to be successful businesses and responsible corporate citizens. The National
Environmental Policy Act (NEPA) comes into play on a
significant number of critical construction projects that
serve the public and the environment.
The Center for LNG (CLNG) is a trade association
that promotes public policies advancing the use of natural
gas in the United States and its export internationally. As
a committee of the Natural Gas Supply Association,
CLNG represents the full value chain, including largescale LNG export facilities in the United States, shippers,
and multinational developers, providing it with unique
insight into the ways in which the vast potential of this
abundant and versatile fuel can be fully realized.
4
The National Association of Manufacturers (NAM)
is the largest manufacturing association in the United
States, representing small and large manufacturers in all
fifty states and in every industrial sector. Manufacturing
employs nearly 13 million people, contributes $2.9 trillion
to the economy annually, has the largest economic impact
of any major sector, and accounts for over half of all private-sector research and development in the nation, fostering the innovation that is vital for this economic
ecosystem to thrive. The NAM is the voice of the manufacturing community and leading advocate for a policy
agenda that helps manufacturers compete in the global
economy and create jobs across the United States.
The Natural Gas Supply Association (NGSA) represents integrated and independent companies that supply
natural gas. Founded in 1965, NGSA is the only national
trade association that solely focuses on producer-marketer issues related to the downstream natural gas industry. NGSA advocates for regulatory certainty and wellfunctioning markets for natural gas. Through its support
for innovative technologies and partnerships with all energy sources, NGSA is dedicated to sustainably meeting
our nation’s growing energy demand.
Many of amici’s members operate in industries that
require federal permits subject to the substantive and
procedural requirements of the Resource Conservation
and Recovery Act (RCRA). And amici’s members also
regularly interact with, and benefit from, Executive
Branch action governed by the environmental-review procedures in NEPA. Amici’s members have an interest in
agencies’ using available means to organize and expedite
their permitting review processes to ensure timely, effective decisions. Amici’s members depend on the predictability, efficiency, and finality of those permitting pro-
5
cesses to plan long-term investments, maintain ongoing
operations, secure project financing, and bring new projects to fruition.
The Ninth Circuit in this case threatened those important interests in two respects. First, the court of appeals adopted an unjustified, expansive definition of “final
agency action” under the Administrative Procedure Act
(APA) that cannot fit the statutory text. The Ninth Circuit’s conception would subject the mere act of requesting
a permit to immediate judicial review—even though an
application for a permit is a preliminary step that does
not produce legal consequences, rights, or obligations
until the permitting authority acts. Left uncorrected, the
decision below will unsettle established APA doctrine and
invite a wave of front-loaded litigation against applications that have not yet been resolved. Second, notwithstanding Congress’s deliberate selection in RCRA of the
comprehensive environmental-review procedures that
should apply to permit applications in this context, the
Ninth Circuit held that the permit application is subject
also to NEPA. That holding finds no support in either
statute, this Court’s precedents, or the Executive
Branch’s longstanding practice.
If uncorrected, the Ninth Circuit’s two holdings will
invite premature and duplicative litigation, risking cascading harm to the nation’s businesses, critical development projects, and the permitting system on which they
depend.
This Court should reverse.
6
INTRODUCTION AND SUMMARY OF ARGUMENT
This Court recently reaffirmed that NEPA is “a
purely procedural statute” with a “modest” purpose: it
is meant “to inform agency decisionmaking, not to paralyze it.” Seven County Infrastructure Coal. v. Eagle
County, 605 U.S. 168, 173, 183 (2025). The decision below
resists that holding. The Ninth Circuit treated the mere
submission of a permit-renewal application as immediately reviewable “final agency action,” and simultaneously
imposed a freestanding NEPA obligation on applicants
who already must adhere to RCRA’s “comprehensive,”
“cradle-to-grave” hazardous-waste-permitting regime.
City of Chicago v. Environmental Def. Fund, 511 U.S.
328, 331 (1994). That decision converts the federal permitting process into a litigation gauntlet and would impose
substantial and gratuitous burdens on the nation’s businesses, agencies, and courts.
First, the Ninth Circuit held that the Air Force’s 2021
submission of a RCRA permit-renewal application to the
Guam Environmental Protection Agency (Guam EPA) is
“final agency action” immediately reviewable under the
APA, 5 U.S.C. § 704—even though Guam EPA has not yet
decided whether to grant or deny the application, Pet.
App. 19a. That holding cannot be reconciled with any sensible reading of the statutory word “final.” It also flouts
this Court’s settled two-prong test for APA finality and
the line of decisions holding that preliminary steps in a
multi-stage administrative process are not independently
reviewable. See, e.g., Bennett v. Spear, 520 U.S. 154, 177178 (1997). The Air Force’s pending application satisfies
neither prong of Bennett: it is the opening step of an iterative process in which Guam EPA may require the applicant to modify, supplement, or correct the application.
7
And it produces no binding legal consequences unless and
until that process yields a permit decision.
Second, the Ninth Circuit held that NEPA required
the Air Force to prepare an environmental impact statement, or an environmental assessment, before submitting
its permit-renewal application—even though Congress in
RCRA established its own detailed, comprehensive regime for evaluating the environmental consequences of
hazardous-waste-management facilities. Pet. App. 33a46a. That holding disregards the traditional rule of “statutory construction that the specific governs the general.”
RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
566 U.S. 639, 645 (2012); see Thunder Basin Coal Co. v.
Reich, 510 U.S. 200, 207-216 (1994). It also conflicts with
EPA’s longstanding regulation—created contemporaneously with RCRA and in force for nearly half a century—
providing that “all RCRA … permits are not subject
to the environmental impact statement provisions of
[NEPA].” 40 C.F.R. § 124.9(b)(6). Congress’s 2023 amendments to NEPA codified the same displacement principles, and the Ninth Circuit’s ruling cannot be reconciled
with that statute, either. See 42 U.S.C. § 4336(a)(2), (3).
Without reversal, the practical consequences of the
Ninth Circuit’s holdings would be severe. RCRA’s “permitting universe” comprises 6,600 facilities that handle
the nation’s “2.96 billion tons of solid, industrial[,] and hazardous waste.” Environmental Protection Agency,
Resource Conservation and Recovery Act (RCRA) Overview. 2 Affected industries include chemical manufacturing, semiconductor fabrication, pharmaceutical production, petroleum refining, and battery manufacturing and
recycling—to name just a few. And as the federal govern-
2
https://perma.cc/B95G-6JES.
8
ment has explained (Pet. 31), the Department of Defense
alone periodically renews about 2,500 environmental permits within the Ninth Circuit. Private industry holds
many multiples of that number across RCRA, the Clean
Water Act, the Clean Air Act, the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA), the Endangered Species Act, the Atomic Energy Act, and analogous
statutory regimes. Under the Ninth Circuit’s approach
below, the federal permitting process would grow more
protracted, and U.S. businesses’ investments, financing,
and operational decisions will suffer. Layering a freestanding NEPA obligation onto every RCRA applicant
would stack redundant review on top of NEPA’s already
lengthy and inefficient regime.
ARGUMENT
I. An application to renew a RCRA permit is not final
agency action under the APA.
The APA authorizes judicial review only of “final
agency action.” 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)
(citation 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 177-178 (citation omitted). 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). Both conditions are required:
This Court takes a “pragmatic” approach to finality,
Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 599
(2016) (citation omitted), but pragmatism is not a license
to dispense with either Bennett requirement.
The Air Force’s submission of the 2021 RCRA permitrenewal application satisfied neither prong.
9
A. The Air Force’s permit-renewal application did not
consummate agency decisionmaking and carried
no legal consequences.
1. The Ninth Circuit concluded that the Air Force
“reached the ‘consummation’ of its decisionmaking process when it filed its permit application.” Pet. App. 22a.
That was error because submitting a permit-renewal
application under RCRA begins, rather than concludes,
an iterative administrative process that includes inputs
from a state agency and the public.
The Air Force’s renewal application was a preliminary
step in the agency’s decisionmaking. Guam EPA “may
request additional information from” the Air Force to
“clarify, modify, or supplement previously submitted
material,” 40 C.F.R. § 124.3(c), or to “correct deficiencies
in the application,” 40 C.F.R. § 124.3(d). The agency may
also “reopen[]” the comment period and “modif[y]” the
draft permit in response to “new” submissions, 40 C.F.R.
§ 124.14(b). Guam EPA gave the public an opportunity to
comment on its “tentative[]” decision to “prepare a draft
permit.” 40 C.F.R. § 124.6(a), (e); see 42 U.S.C. §§ 6926(f),
6974(b). And the Air Force acknowledges that in some circumstances it “must … ‘make changes to its permit application at Guam EPA’s request.’” Cert. Reply Br. 3
(citations omitted). In other words, the Air Force’s
“planned activities,” Pet. App. 3a, are subject to ongoing
back-and-forth and remain “‘tentative’”—not “final,”
Franklin v. Massachusetts, 505 U.S. 788, 797 (1992).
This Court has held that similar iterative or intermediate steps do not satisfy the APA’s finality requirement.
In FTC v. Standard Oil Co. of California, 449 U.S. 232
(1980), the Court held that an agency action is not “final”
where it is merely “a prerequisite” to the agency’s ultimate decision. Id. at 241-242. The FTC’s “issuance of [a]
10
complaint,” though “definitive” on whether the Commission had “reason to believe that” the respondent was violating the law, simply “represent[ed] a threshold determination that further inquiry [was] warranted.” Id. at 241.
So too in Franklin, an agency’s submission of a census
report to the President was not “final” because the President was “not expressly required to adhere to the policy
decisions reflected in the [agency]’s report.” 505 U.S. at
799. Rather, it was “the President’s personal transmittal
of the report to Congress that settle[d] the apportionment.” Ibid. Thus, “until [the President] act[ed] there
[was] no determinate agency action to challenge.” Ibid.
The same logic supports reversal here. As in Standard
Oil, the challenged action—applying for a permit—sets
the stage for potential future final action; it is not itself
final and does not settle anything. See 449 U.S. at 241-242.
And here, as in Franklin, the Air Force’s permit application is not a “determinate agency action” because it is the
subsequent iterative process—dependent on a state
agency’s decision—that will ultimately “settle[]” whether
the Air Force receives a permit and may dispose of hazardous waste as it proposed. 505 U.S. at 799.
The Ninth Circuit’s contrary conclusion rests on the
mistaken view that “[t]he Air Force’s decision marked an
endpoint” because it “had ‘not suggest[ed] it is still in the
middle of trying to figure out its position.’” Pet. App. 23a
(citation omitted). Respondent has similarly suggested
(Br. in Opp. 9) that the Air Force’s “decision to engage
in OB/OD operations”—if permitted—was the relevant
final agency action. But that “decision” implicates ongoing
dialogue with Guam EPA and public stakeholders. Final
agency action does not turn on some moment of internal
subjective commitment untethered from the agency’s regulatory obligations. “To the extent that the Court of
11
Appeals understood itself to be reviewing an abstract
decision apart from specific agency action, as defined in
the APA, that was error.” Biden v. Texas, 597 U.S. 785,
809 (2022). The Air Force’s decisionmaking on its 2021
application remains ongoing in every meaningful sense.
2. The Air Force’s still-pending renewal application
also fails Bennett࣠’s second prong because it does not “determine[]” any “rights or obligations” or produce “direct
and appreciable legal consequences.” 520 U.S. at 178.
Instead, it “serves more like a tentative recommendation
than a final and binding determination.” Franklin, 505
U.S. at 798.
This Court has consistently held that agency submissions that only inform a later decision are not themselves
final agency action. In Franklin, this Court recognized
that an agency’s census report to the President did not
reflect final agency action because “its effect … is felt only
after the President makes the necessary calculations and
reports the result to Congress.” 505 U.S. at 796. In Dalton
v. Specter, 511 U.S. 462 (1994), the Court recognized that
the Secretary of Defense’s “tentative recommendation”
on base closures was not final agency action because it
became binding only on the President’s approval. Id. at
469-470. And in Standard Oil, as noted above, the Court
held that an FTC complaint merely “initiate[d] the proceedings” and set the stage for potential future action. 449
U.S. at 241-242. The Air Force’s precursor submission to
Guam EPA falls squarely on the same side of the line.
The Ninth Circuit attempted to extract legal consequences from the Air Force’s application by reasoning
that, “[s]hould Guam EPA issue … a renewal permit, the
permit’s terms and conditions will be predicated on” the
application. Pet. App. 29a (emphasis added). But the
court’s use of conditional language underscores that any
12
legal consequences of the application are “contingent [on
a] future event” that has not yet occurred. Id. at 65a (VanDyke, J., dissenting).
The court of appeals (Pet. App. 31a n.9) and respondent (Br. in Opp. 19) have suggested that the permit application carries legal consequences because it “extended”
the Air Force’s prior permit under 40 C.F.R. § 270.51(a).
That is incorrect. The same regulations make clear that
“final agency action on a permit occurs when” EPA “issues a final permit decision.” 40 C.F.R. § 124.19(l࣠)(2). That
regulation tracks the APA’s generally applicable tolling
rule, 5 U.S.C. § 558(c)(2), which provides that when a
licensee “has made timely and sufficient application for a
renewal,” its license “do[es] not expire … until the application has been finally determined.” As that provision
makes clear, the tolling provision simply freezes the status quo until final agency action—that is, the “final[]
determin[ation]” of the renewal application—can occur.
Ibid. In the interim, the agency’s pre-existing obligations
continue to be “governed by the terms of” the pre-existing
permit. Pet. App. 65a (VanDyke, J., dissenting). Thus, the
legal “obligations” the decision below identified will flow
from the prior permit, not the applicant’s request for a
renewed one.
The APA’s tolling mechanism is the linchpin of operational continuity for thousands of industrial facilities
nationwide—including chemical plants, refineries, electric generating units, manufacturing operations, and
waste-management facilities—for which permit renewal
is routine. See 5 U.S.C. § 558(c); 40 C.F.R. § 270.51(a).
If each application to renew a pre-existing permit (or
for that matter, a federal agency’s receipt of such an
application) constituted “final agency action” susceptible
to immediate challenge, then the very mechanism Con-
13
gress designed to prevent operational disruption during
the renewal process would become a vehicle for litigationinduced shutdowns and supply-chain interruptions. That
is not the law.
B. The Ninth Circuit’s expansive view of final agency
action would destabilize settled APA doctrine and
saddle the federal permitting process with premature litigation.
The Ninth Circuit’s decision unsettles the established
understanding of which agency actions are reviewable
under the APA and when—thereby upending both basic
administrative-law principles and industry expectations.
If the decision below is not reversed, interested parties
would be left to guess which steps start the APA’s six-year
clock. And the decision exposes an already overburdened
permitting process—a principal bottleneck to needed
development—to interlocutory challenges that produce
no corresponding environmental benefit.
1. The Ninth Circuit’s own reasoning underscores
the problem. To square its result with this Court’s precedents, the decision below invented a novel “mandated trigger points” theory under which any statutorily required
agency step may qualify as final agency action. Pet. App.
27a n.7. But as the dissent explained, that test has “no logical stopping point”: even “a forest ranger’s decision to fill
up his truck with gas so he can continue patrolling the forest” would count. Id. at 62a, 65a.
That new “trigger points” theory of finality, if not
reversed, is bound to sow confusion. A “final” agency
action triggers not only the right to bring an APA
action, but also (once the plaintiff has suffered an injury
from that action) a deadline to file within a six-year limitations period. Corner Post, Inc. v. Board of Governors
of Fed. Rsrv. Sys., 603 U.S. 799, 809 (2024); see 5 U.S.C.
14
§ 704; 28 U.S.C. § 2401(a). Under the Ninth Circuit’s
rule, prospective challengers must instigate seriatim
litigation at every stage that arguably qualifies under
the “trigger points” test, lest discrete agency decisions
slip past the limitations period. See Pet. App. 27a. That
dynamic flouts the APA’s design, which channels review
to the agency’s decision—not every document or plan
preceding it. Cf. Seven County Infrastructure Coal. v.
Eagle County, 605 U.S. 168, 184-185 (2025) (“The ultimate question is not whether an [environmental impact
statement] in and of itself is inadequate, but whether the
agency’s final decision was reasonable and reasonably
explained.”).
The Ninth Circuit’s murky reading of finality has
already begun to spread, prompting litigants to relabel
ordinary interlocutory steps as “final” actions subject to
immediate judicial review. In the Eleventh Circuit, environmental groups and a tribe challenged a detention facility built entirely by the State of Florida. Friends of the
Everglades, Inc. v. Secretary of U.S. Dep’t of Homeland
Sec., No. 25-12873, 2026 WL 1077624, at *1 (Apr. 21, 2026).
They argued that the federal government’s mere assertion of some later “authority” over that facility in housing
noncitizens constituted final agency action for APA purposes—citing the Ninth Circuit’s decision here. See No.
25-12873 C.A. Doc. 103, at 37 (11th Cir. Jan. 20, 2026). In
the D.C. Circuit, challengers to an administration “plan”
to close a federal agency likewise cited the decision below
in arguing that a government plan to act in the future can
satisfy the APA’s “finality” requirement. Plaintiffs-Appellees’ Corrected Br. at 30, NTEU v. Vought, No. 25-5091
C.A. Doc. 2115274 (D.C. Cir. May 9, 2025). That case has
caused substantial confusion within the D.C. Circuit about
the extent to which the agency action under review is “final.” NTEU v. Vought, 149 F.4th 762, 770 (2025), reh’g en
15
banc granted, opinion vacated, No. 25-5091, 2025 WL
3659406 (Dec. 17, 2025).
Courts within the Ninth Circuit have likewise read the
decision below to mean that an agency’s mere expression
of intent to take further action can constitute final agency
action. For example, the Ninth Circuit recently perceived
final agency action in a “memorandum” to executive agencies merely requesting that those agencies submit plans
to implement an executive order. AFGE v. Trump, 139
F.4th 1020, 1039 (9th Cir.), stay granted, 145 S. Ct. 2635
(2025). And a district court in California invoked the decision below in concluding that an “assessment” or “plan”
can constitute final agency action even if it is entirely contingent on “some other occurrence” by “another administrative agency.” AFSCME v. OMB, No. 25-cv-8302, 2025
WL 3018250, at *16 (N.D. Cal. Oct. 28, 2025) (cleaned up).
Treating preliminary steps like “plans” or “assessments” as final agency action is not merely doctrinally
mistaken; it invites a flood of premature challenges. As
this Court observed, procedural challenges under NEPA
allow “project opponents” to wield a “blunt and haphazard
tool” against development, even where those opponents
are motivated by something other than the legal interests
that the statute was designed to vindicate. Seven County,
605 U.S. at 183. Left undisturbed, the Ninth Circuit’s rule
will draw a steady stream of suits targeting preliminary
agency action—interfering with agencies’ ongoing decisionmaking, prolonging environmental reviews and other
interlocutory assessments, and over time, deterring agencies from undertaking those preliminary steps at all.
2. The Ninth Circuit’s approach would impose realworld costs on amici’s members and the national economy.
Under the court of appeals’ approach to final agency
action, agencies would be forced to defend suits at inter-
16
stitial stages of decisionmaking, regulated parties would
bear additional expense and undergo additional delays,
and the public would lack the benefits of critical infrastructure. A “broken permitting system” is the “biggest
obstacle to building the infrastructure of the future.” U.S.
Chamber of Commerce, Permit America to Build. 3 To
complete almost any project of consequence today, developers must navigate a maze of overlapping procedures
rife with inefficiencies and redundancies. Those procedural costs cause unnecessary delay and incentivize developers to shrink, relocate, or abandon critical investments,
even where Congress has specifically appropriated funds
for critical infrastructure development. See ibid. The
Ninth Circuit’s approach thus exacerbates a pre-existing
problem: Even though Congress has appropriated more
than $1 trillion in grants and loans for transportation,
energy, water, broadband, and other infrastructure in
recent years, not nearly enough is being built. See Martin
Durbin, It’s Time to Permit America to Build, U.S.
Chamber of Commerce (Apr. 5, 2023). 4
The decision below would compound those inefficiencies by embroiling courts in disputes at every stage of a
project (and often, even stages of deliberation preceding
a project), without any offsetting benefit. Under the Ninth
Circuit’s rule, project opponents may seek judicial review
at virtually every interlocutory phase, including an
agency’s disclosure of “plan[s]” or “request[s]” to act in
the future. Pet. App. 21a-22a. As the government explains
(Br. 33), that approach “could generate a multitude of
suits” that would divert agency resources to defending
preliminary steps, sideline federal funds appropriated for
3
https://perma.cc/Q8E7-EJFL.
4
https://perma.cc/NWM5-KR3H.
17
critical infrastructure, and force project sponsors and
lenders to price in litigation risk at every juncture.
The ramifications of the decision below would extend
beyond the particular permitting regime at issue here.
Amici’s members operate under overlapping state and
federal authorization frameworks that depend on periodic
agency decisions—including Federal Energy Regulatory
Commission certificates of public convenience and necessity for interstate natural-gas pipelines, 15 U.S.C. § 717f;
Nuclear Regulatory Commission licenses and license
renewals, 10 C.F.R. pts. 52, 54; Bureau of Land Management rights-of-way across federal land, 43 U.S.C. § 1761;
Federal Communications Commission broadcast and
spectrum license renewals, 47 U.S.C. § 307; Federal Aviation Administration airport operating certificates, 49
U.S.C. § 44706; Food and Drug Administration facility
registrations, 21 U.S.C. § 360; and Clean Water Act permits, 33 U.S.C. § 1344. As the dissent below observed, “basically any statute that directs an agency to do anything
requires a long list of agency decisions that could be characterized as ‘periodic decisional junctures’ or ‘mandated
trigger points’—many of which are not even explicit” but
would constitute final agency action under the Ninth Circuit’s new rubric. Pet. App. 62a. Regulated entities would
have “no idea” when their interactions with the government are subject to litigation—or when to bring their own
challenges. Ibid.
II. Congress displaced NEPA’s default requirements by
enacting RCRA’s specialized and comprehensive system
for regulating hazardous waste.
RCRA’s end-to-end regulatory framework displaces
NEPA in the context of hazardous-waste treatment.
RCRA comprehensively governs the treatment, storage,
and disposal of hazardous waste. Its detailed substantive
18
and procedural requirements achieve the same ends that
NEPA’s general environmental-review provisions are
designed to advance. Requiring permit applicants to satisfy both regimes would impose redundant review, prolong agency decisionmaking, and add another layer of
litigation—again without any corresponding environmental benefit.
A. RCRA’s rigorous, start-to-finish regulatory framework supplies the operative environmental-review
requirements here.
1. This Court has observed that “RCRA is a comprehensive environmental statute that empowers EPA to
regulate hazardous wastes from cradle to grave.” City of
Chicago v. Environmental Def. Fund, 511 U.S. 328, 331
(1994). It imposes “rigorous safeguards,” ibid., “govern[ing] the treatment, storage, and disposal of solid and
hazardous waste,” Meghrig v. KFC W., Inc., 516 U.S. 479,
483 (1996).
RCRA sets sweeping substantive standards to ensure
that hazardous-waste permits “protect human health and
the environment.” 42 U.S.C. § 6924(a). The statute governs, among other things, “operating methods, techniques, and practices” for “treatment, storage, or disposal” of hazardous waste; “contingency plans for effective action to minimize unanticipated damage”; and “the
maintenance of operation of” waste-treatment facilities.
Ibid. It further provides that any party who owns, operates, or constructs any facility treating, storing, or disposing of hazardous waste must obtain a RCRA permit. See
42 U.S.C. § 6925(a). Each permit application must describe “the processes to be used for treating, storing, and
disposing of hazardous waste,” 40 C.F.R. § 270.13(i);
“[c]hemical and physical analyses of the hazardous waste
and hazardous debris to be handled at the facility,” 40
19
C.F.R. § 270.14(b)(2); and the “procedures, structures or
equipment used at the facility to” prevent “runoff,” “contamination of water supplies,” “releases to atmosphere,”
and other “hazards in unloading operations,” 40 C.F.R.
§ 270.14(b)(8). Permit-renewal review “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). And the permitting authority “shall
revoke” a permit upon a determination of “noncompliance” with the statute’s mandates. 42 U.S.C. § 6925(d).
RCRA also imposes numerous procedural safeguards
to ensure informed agency decisionmaking and public
participation. RCRA and its implementing regulations
require, among other things, public notice of a draft permit, 40 C.F.R. § 124.6(e), written responses to public comments, 40 C.F.R. § 124.17, 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
a public hearing upon request, 42 U.S.C. § 6974(b)(2). As
the Eleventh Circuit observed more than three decades
ago, RCRA’s “substantive and procedural standards” are
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 (1990).
RCRA’s substantive and procedural requirements
duplicate NEPA’s standards in some respects and exceed
NEPA’s in others. “NEPA is a purely procedural statute”
that, unlike RCRA, “imposes no substantive environmental obligations or restrictions.” Seven County, 605 U.S. at
173. At most, NEPA “simply requires an agency to prepare” a “report” to “weigh environmental consequences
20
as the agency reasonably sees fit.” Ibid.; see 42 U.S.C.
§ 4332(2)(C).
The statutory context makes it apparent that RCRA
displaces NEPA’s general environmental-review provisions. Where, as here, two federal statutes evaluate substantially similar environmental questions through substantially similar procedures, Congress cannot be presumed to have required applicants to run the same
gauntlet twice. That is particularly true where, as here,
“‘Congress has enacted a comprehensive scheme and has
deliberately targeted specific problems with specific solutions.’” RadLAX Gateway Hotel, LLC v. Amalgamated
Bank, 566 U.S. 639, 645 (2012) (collecting cases). This
Court has employed similar reasoning in holding that the
Interstate Land Sales Full Disclosure Act, Pub. L. No.
90-448, 82 Stat. 590 (1968), displaced NEPA’s general
requirements. Flint Ridge Dev. Co. v. Scenic Rivers Ass’n
of Okla., 426 U.S. 776, 788-791 (1976). In such a circumstance, as in others, “the specific governs the general.”
RadLAX, 566 U.S. at 645. That principle applies with full
force here, because RCRA specifically addresses environmental review of hazardous-waste-treatment facilities.
NEPA, by contrast, supplies only general procedural
directives for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C.
§ 4332(2)(C). Because “RCRA is the later and more specific statute directly governing EPA’s [or its delegate’s]
process for issuing permits to hazardous waste management facilities,” RCRA “controls.” Siegelman, 911 F.2d at
504-505.
That conclusion accords with longstanding precedent
of multiple circuits. The courts of appeals have consistently held that NEPA’s general procedural requirements
are displaced by specialized statutory provisions that
21
serve the same core function as NEPA review. Courts
have thus concluded that Congress displaced NEPA in,
for example, provisions of the Clean Air Act, see Portland
Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 384-386 (D.C.
Cir. 1973); South Terminal Corp. v. EPA, 504 F.2d 646,
676 (1st Cir. 1974); FIFRA, see Merrell v. Thomas, 807
F.2d 776, 779 (9th Cir. 1986); Wyoming v. Hathaway, 525
F.2d 66, 71-72 (10th Cir. 1975); Environmental Def.
Fund, Inc. v. EPA, 489 F.2d 1247, 1256-1257 (D.C. Cir.
1973); the Safe Drinking Water Act, see Western Neb.
Res. Council v. EPA, 943 F.2d 867, 871-872 (8th Cir.
1991); and the Endangered Species Act, see Douglas
County v. Babbitt, 48 F.3d 1495, 1503 (9th Cir. 1995). The
concept of functional compliance with NEPA, as a substitute for formal NEPA compliance, has even been applied
to certain federal regulations. See, e.g., Cellular Phone
Taskforce v. FCC, 205 F.3d 82, 94-95 (2d Cir. 2000) (concluding that FCC procedures were functionally compliant
with NEPA).
Recognizing RCRA’s displacement of NEPA in this
context would also accord with nearly a half-century of
Executive Branch practice. Since RCRA’s enactment in
1976, EPA has understood that “all RCRA … permits are
not subject to the environmental impact statement provisions of [NEPA].” 40 C.F.R. § 124.9(b)(6); see 45 Fed.
Reg. 33,290, 33,488 (May 19, 1980). EPA explained at the
time that RCRA’s “extensive procedures, including public
participation for evaluation [of] environmental issues,
constitute[] the functional equivalent of NEPA’s requirements.” 44 Fed. Reg. 34,244, 34,247 (June 14, 1979). EPA
has maintained that common-sense view. See, e.g., 85 Fed.
Reg. 43,304, 43,341 & n.102 (July 16, 2020) (“[A]gencies do
not need to conduct NEPA analyses under [RCRA].”).
That “contemporaneous[]” and “consistent” agency interpretation, while not binding, is “especially useful in deter-
22
mining” Congress’s intent here. Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 394 (2024).
Statutory history points in the same direction. Since
EPA promulgated its regulations in 1980, Congress has
declined to enact any amendment imposing a NEPA overlay on RCRA—despite revisiting both statutes over the
years. Congress reinforced RCRA’s requirements in the
Hazardous and Solid Waste Amendments of 1984, Pub. L.
No. 98-616, 98 Stat. 3221; the Federal Facility Compliance
Act of 1992 (FFCA), Pub. L. No. 102-386, 106 Stat. 1505;
and the Land Disposal Program Flexibility Act of 1996,
Pub. L. No. 104-119, 110 Stat. 830. And despite the federal
government’s longstanding view that RCRA displaced
NEPA, Congress never suggested otherwise. See, e.g.,
Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-240
(2009) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt
that interpretation when it re-enacts a statute without
change.”) (cleaned up). Congress, moreover, knows how
to impose a NEPA overlay on other environmental statutes when it wishes to do so. In the same enactment containing the FFCA’s amendments to RCRA, Congress
passed the Metropolitan Washington Waste Management
Study Act, which expressly required “an environmental
impact statement, pursuant to [NEPA].” Pub. L. No. 102386, tit. II, § 203(a), 106 Stat. 1505.
Congress underscored those displacement principles
when it amended NEPA in 2023. Congress made clear
that agencies are relieved of NEPA obligations either
when compliance “is excluded pursuant to … another provision of law,” 42 U.S.C. § 4336(a)(2), or when “the preparation of [a NEPA] document would clearly and fundamentally conflict with the requirements of another provision of law,” 42 U.S.C. § 4336(a)(3). As this Court re-
23
cently explained, the 2023 amendments “reinforce[] the
basic principles that NEPA, correctly interpreted, already embodied.” Seven County, 605 U.S. at 181 n.3. In
other words, the settled understanding that RCRA applicants need not comply with NEPA’s more general—and
redundant—requirements provided the “legal ‘backdrop
against which Congress enacted’” those amendments.
Tanzin v. Tanvir, 592 U.S. 43, 48 (2020).
Importing the Ninth Circuit’s NEPA precedent into
the RCRA context would also be a poor doctrinal fit. That
court’s NEPA decisions arose largely in settings involving
resource uses on federal lands, where comprehensive
environmental statutes such as RCRA were less likely to
apply. See, e.g., 350 Montana v. Haaland, 50 F.4th 1254,
1264-1269 (9th Cir. 2022) (coal lease); Bark v. USFS, 958
F.3d 865, 869-872 (9th Cir. 2020) (timber and vegetation
management); Western Watersheds Project v. Abbey, 719
F.3d 1035, 1046-1051 (9th Cir. 2013) (livestock grazing).
RCRA occupies a far different domain from the typical
federal-lands NEPA case: RCRA establishes an exacting,
technology-specific permitting regime that prescribes
precisely how wastes must be characterized, contained,
monitored, and closed out. See pp. 18-20, supra.
2. Respondent’s counterarguments lack merit.
Respondent has suggested (Br. in Opp. 26) that NEPA
displacement occurs “only when two statutory provisions
are irreconcilable.” But the decisions cited above—and
Congress’s 2023 amendments to NEPA itself—refute
that argument. See pp. 20-23, supra. Regardless, respondent concedes that, under the “prevailing framework
for NEPA displacement,” a federal agency “need not comply with NEPA when it administers a statute that mandates its own examination of environmental questions and
that imposes specific procedures for considering the envi-
24
ronment that are functional equivalents of the NEPA
impact statement process.” Br. in Opp. 20, 24 (brackets,
citation, and internal quotation marks omitted). That rule
compels reversal here.
Of course, Congress has many additional tools at its
disposal to exempt a proposed activity or decision from
NEPA. Congress may do so by enacting an express exemption. See, e.g., 15 U.S.C. § 793(c)(1) (exempting EPA
actions under the Clean Air Act); 33 U.S.C. § 1371(c)(1)
(exempting certain EPA actions under the Clean Water
Act); 42 U.S.C. § 5159 (exempting certain actions taken or
assistance provided within a Presidentially declared
emergency or disaster area); 16 U.S.C. § 3636(a) (exempting regulation of Pacific salmon fishing). Or Congress may
simply “limit[]” an agency’s “discretion” to take or refrain
from taking a challenged action: If “an agency has no ability to prevent” an environmental effect “due to its limited
statutory authority over the relevant actions, the agency
cannot be considered a legally relevant ‘cause’ of the
effect” and need not consider that effect in its NEPA
review. DOT v. Public Citizen, 541 U.S. 752, 769-770
(2004); see, e.g., Seven County, 605 U.S. at 198 (Sotomayor, J., concurring) (“NEPA’s central aim is to improve
agency decisionmaking” (emphasis added)). But respondent errs insofar as it contends that those methods are the
only ways to displace NEPA’s purely procedural scheme.
Respondent also repeats the Ninth Circuit’s novel
view that NEPA displacement is limited to agencies “engaged primarily in an examination of environmental questions.” Br. in Opp. 24 (quoting Pet. App. 41a). Displacement does not rise or fall with the agency’s primary mandate. What matters is whether Congress established a
specialized environmental-review process for the substantive question at hand—and Congress indisputably did so
25
for hazardous-waste permitting in RCRA. Respondent’s
distinction also makes little sense: All agree that an
agency need not “comply with NEPA” when it grants a
RCRA permit. Siegelman, 911 F.2d at 505. There is no
sound reason to demand compliance with NEPA when a
party merely requests a permit.
Respondent observes (Br. in Opp. 24) that NEPA
review must occur “‘before’” an agency “reach[es] a final
decision,” whereas RCRA “does not require an environmental evaluation until after the action agency has
reached that decision.” But that argument recycles the
Ninth Circuit’s erroneous finality holding; it does not provide an independent reason to require redundant review.
Because the Air Force’s pending application is not final
agency action, the only reviewable “decision” here will follow the grant or denial of a renewed permit—a step that
RCRA governs exhaustively.
B. Layering NEPA on top of RCRA would be
duplicative, costly, and unsupported.
There is no sound policy reason to require that a
RCRA permit application follow NEPA’s procedures. The
Ninth Circuit’s rule would produce no incremental environmental information, no additional public participation,
and no meaningful input in agency decisionmaking—just
more paper-pushing.
Imposing both RCRA and NEPA review is neither
necessary nor appropriate to ensure the safety of permitted activities or to inform the public of environmental
risks. Again, RCRA is “a comprehensive environmental
statute,” Meghrig, 516 U.S. at 483, that “regulate[s]
hazardous wastes from cradle to grave, in accordance
with … rigorous safeguards and waste management procedures,” Environmental Def. Fund, 511 U.S. at 331. And
as noted (at 18-20, supra), RCRA supplies substantive
26
standards and technical specifications, requires noticeand-comment and written responses, and allows for public
hearings. See, e.g., 42 U.S.C. §§ 6924(a), 6925(c)(3),
6974(b)(2); 40 C.F.R. §§ 124.6, 124.8(b)(5), 124.17, 270.13270.14. The Executive Branch—which is charged with
both preparing NEPA reviews and administering the
RCRA permitting process—has long recognized that
RCRA “fully allows and encourages the involvement of
the public in [RCRA] decision making.” 44 Fed. Reg.
at 34,254. NEPA’s general informational mandate
adds nothing to that framework. Unlike RCRA, NEPA
“imposes no substantive environmental obligations or
restrictions” and “simply” seeks “to inform agency decisionmaking.” Seven County, 605 U.S. at 173. But that is
precisely what RCRA accomplishes already.
If anything, applying NEPA in this context would
undermine RCRA’s comprehensive plan to ensure the
safe and efficient treatment of hazardous waste. NEPA
review here would achieve only one end: delay. In 2020,
the Council on Environmental Quality (CEQ) reported
that it took 4.5 years on average to complete an environmental impact statement to obtain a federal permit;
doing so for building a road or bridge took 7.4 years, and
doing so for the construction of public transit took 5.3
years. See Council on Environmental Quality, Fact Sheet:
CEQ Report on Environmental Impact Statement Timelines (2010-2018) 1-2, 4, 10 (June 12, 2020) (observing
average of 4.5 years and median of 3.5 years to complete
environmental reviews and issue final records of decision,
according to agency-by-agency timelines). 5 In 2025, CEQ
reported that federal agencies were taking an average of
3.8 years and median of 2.5 years to complete an environ-
5
https://perma.cc/XWW7-S56L.
27
mental impact statement and record of decision in complying with NEPA. See Council on Environmental Quality, Fact Sheet: CEQ Report on Environmental Impact
Statement Timelines (2010-2024) 7 n.13. 6 Only 41 percent
of final environmental impact statements issued in 2024
were completed within two years—an improvement over
earlier figures, but still an unacceptable outcome. Id. at
2. 7
NEPA review can also cost millions of dollars: According to the Department of Energy, “the average payment
to a contractor to prepare an [environmental impact statement] from calendar year 2003 through calendar year
2012 was $6.6 million, with the range being a low of
$60,000 and a high of $85 million.” Government Accountability Office, GAO-14-370, National Environmental Policy Act: Little Information Exists on NEPA Analyses 13
(Apr. 15, 2014). 8 “‘NEPA compliance’ now consumes as
much as one billion dollars of direct federal expenditures
every year, or more (no one knows the exact amount), and
demands the full-time work effort of hundreds or thousands of federal employees and contractors (no one knows
how many) in every agency of the government.” Mark C.
Rutzick, A Long and Winding Road: How the National
Environmental Policy Act Has Become the Most Expensive and Least Effective Environmental Law in the
History of the United States, and How to Fix It ࣠3, Regulatory Transparency Project (Oct. 16, 2018). 9
6
https://perma.cc/AZE4-5KSC.
In the Fiscal Responsibility Act of 2023, Congress amended
NEPA to generally require that environmental impact statements be
completed within a two-year period. 42 U.S.C. § 4336a(g).
7
8
https://www.gao.gov/assets/gao-14-370.pdf.
9
https://perma.cc/76XQ-LMVS.
28
The mere prospect of NEPA litigation drives further
inefficiency and encourages agencies to undertake unnecessary analysis to “litigation-proof” their impact statements. Rayan Sud et al., How to Reform Federal Permitting to Accelerate Clean Energy Infrastructure: A
Nonpartisan Way Forward 18, Brookings Inst. (Feb.
2023). 10 This dynamic “lead[s] to an increase in the cost
and time needed to complete NEPA documentation, but
not necessarily an improvement in the quality of the documents ultimately produced.” Congressional Research
Service, The National Environmental Policy Act
(NEPA): Background and Implementation 26 (Jan. 10,
2011). 11 And there is little reason to believe that even a
so-called “litigation proof” statement will deter “project
opponents,” whose objective, as this Court has recognized, is often delay or obstruction rather than “concern
for the environment.” Seven County, 605 U.S. at 183. That
uncertainty, as one commentator put it, has left “an invisible graveyard of projects that were never built” across
many industries, including bridge construction, cleanenergy projects, and wildfire prevention. Aidan Mackenzie, How NEPA Will Tax Clean Energy, Inst. for Progress (July 25, 2024) (collecting examples). 12
Especially in the hazardous-waste context, added
delay often harms the environment and the general public. Every additional year when a renewal application languishes under NEPA review is a year when an aging
facility continues to operate under a stale permit, when
planned upgrades to containment and treatment systems
remain on hold, and when hazardous waste accumulates
10
https://perma.cc/K284-MWMJ.
11
https://www.congress.gov/crs-product/RL33152.
12
https://perma.cc/Z3UP-MFVY.
29
while awaiting authorized disposal capacity. NEPA’s procedural overlay, in short, may impose precisely the environmental harms that Congress enacted RCRA to
prevent. The Ninth Circuit’s reflexive extension of its
NEPA case law to a domain Congress comprehensively
addressed in RCRA cannot be squared with either statute’s design or common sense.
The harms caused by the decision below if it is not
corrected will be especially acute. RCRA applies to many
of the country’s most essential industries, including chemical manufacturing, 40 C.F.R. § 261.32; pharmaceutical
production, 40 C.F.R. § 261.33(e), (f); semiconductor fabrication, 40 C.F.R. § 261.31(a); petroleum refining, 40
C.F.R. § 261.32; and battery manufacturing and recycling,
40 C.F.R. §§ 266.80(a), 273.2.
In short, applying both NEPA and RCRA to the
same agency action would upset the balance Congress
struck in providing for appropriate environmental
review without needless bureaucracy, and without impeding the timely completion of essential projects. The
nation’s industrial base—including the healthcare,
energy, and semiconductor sectors that depend on
RCRA permits—would not absorb the resulting friction
without substantial cost, including risk to capital investment and supply chains. If left undisturbed, the decision
below will compound the inefficiencies that already burden the federal permitting process, with serious consequences for investment, financing, and operational
decisions on which our national economy depends.
30
CONCLUSION
The judgment of the court of appeals should be
reversed.
Respectfully submitted,
Andrew R. Varcoe
Stephanie A. Maloney
U.S. CHAMBER LITIGATION
CENTER
1615 H Street, NW
Washington, DC 20062
Counsel for the Chamber
of Commerce of the United
States of America
Leah Pilconis
AMERICAN CEMENT
ASSOCIATION
200 Massachusetts Ave NW,
Suite 200
Washington, DC 20001
Counsel for American
Cement Association
Prianka P. Sharma
AMERICAN ROAD &
TRANSPORTATION
BUILDERS ASSOCIATION
250 E Street SW, Suite 900
Washington, DC 20024
Counsel for American Road
& Transportation Builders
Association
Michael R. Huston
Counsel of Record
Nicholas S. Crown
Addison W. Bennett
PERKINS COIE LLP
700 Thirteenth St., N.W.
Suite 800
Washington, DC 20005-3960
(202) 434-1630
MHuston@perkinscoie.com
Counsel for Amici Curiae
Erica Klenicki
Caroline McAuliffe
NATIONAL ASSOCIATION OF
MANUFACTURERS
733 10th Street, N.W.
Suite 700
Washington, DC 20001
Counsel for National
Association of
Manufacturers
31
J. Spencer Phillips
ASSOCIATED GENERAL
CONTRACTORS OF
AMERICA, INC.
53 D St SE
Washington, DC 20003
Counsel for Associated
General Contractors of
America, Inc.
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.