Amicus Curiae Brief — Department of the Air Force, et al., Petitioners v. Prutehi Guahan, fka Prutehi Litekyan

No. 25-579

In the

Supreme Court of the United States

DEPARTMENT OF THE AIR FORCE, et al.,

Petitioners,

v.

PRUTEHI GUAHAN,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF OF THE FOUNDATION FOR

AMERICAN INNOVATION AND

CHRISTOPHER KOOPMAN AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

Tim Hwang

Counsel of Record

Foundation for

A merican Innovation

2443 Fillmore Street,

#380-3386

San Francisco, CA 94115

(973) 960-4955

tim.hwang@thefai.org

Counsel for Amici Curiae

132185

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

The specific-over-general canon is only the

starting point . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. The applicant-regulator line confirms the

doctrine, because it marks who controls

the decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. RCRA gives Guam EPA the permit

decision; the Air Force only asks

for it . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. NEPA duties run to the actor with

decisional control, not to the applicant

seeking permission . . . . . . . . . . . . . . . . . . . . .6

III. NEPA case law has long tied the document

duty to control and causation . . . . . . . . . . . . . . . . 8

A. Causation requires a close link among

the action, the agency’s authority, and

the effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ii

Table of Contents

Page

B. A NEPA document must benefit a

decision the acting agency can lawfully

make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

C. Functional equivalence applies the

same control principle to specific

environmental statutes . . . . . . . . . . . . . . . . 10

IV. NEPA’s current text confirms the same

control-based structure . . . . . . . . . . . . . . . . . . . . 13

A. The document duty is a threshold

determination based on control . . . . . . . . . 13

B. The statute delineates responsibilities

between responsible officials and

applicants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

C. The amendments confirm the rule; they

need not apply retroactively . . . . . . . . . . . . 16

V.

The rule is narrow and leaves ordinary

NEPA review intact . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iii

TABLE OF CITED AUTHORITIES

Cases

Page

Alabama ex rel. Siegelman v. EPA,

911 F.2d 499 (11th Cir. 1990) . . . . . . . . . . 3, 4, 5, 11, 17

Amoco Oil Co. v. EPA,

501 F.2d 722 (D.C. Cir. 1974) . . . . . . . . . . . . . . . . . . . 11

Basel Action Network v. Mar. Admin.,

285 F. Supp. 2d 58 (D.D.C. 2003) . . . . . . . . . . . . . . . . . 7

Bear Valley Mut. Water Co. v. Jewell,

790 F.3d 977 (9th Cir. 2015) . . . . . . . . . . . . . . . . . . . . . 7

Bldg. Indus. Ass’n of the Bay Area v.

U.S. Dep’t of Commerce,

792 F.3d 1027 (9th Cir. 2015) . . . . . . . . . . . . . . . . . 7, 11

Catron Cnty. Bd. of Comm’rs v.

U.S. Fish & Wildlife Serv.,

75 F.3d 1429 (10th Cir. 1996) . . . . . . . . . . . . . . . . . . . 12

Dep’t of Energy v. Ohio,

503 U.S. 607 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Dep’t of Transp. v. Public Citizen,

541 U.S. 752 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Douglas Cnty. v. Babbitt,

48 F.3d 1495 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 7

iv

Cited Authorities

Page

Env’t Def. Fund, Inc. v. EPA,

489 F.2d 1247 (D.C. Cir. 1973) . . . . . . . . . . . . . . . . . . 11

Essex Chem. Corp. v. Ruckelshaus,

486 F.2d 427 (D.C. Cir. 1973) . . . . . . . . . . . . . . . . . . . 11

Flint Ridge Dev. Co. v.

Scenic Rivers Ass’n of Oklahoma,

426 U.S. 776 (1976) . . . . . . . . . . . . . . . . . . . . . 10, 15, 17

Getty Oil Co. v. Ruckelshaus,

467 F.2d 349 (3d Cir. 1972) . . . . . . . . . . . . . . . . . . . . . 11

Jones v. Gordon,

792 F.2d 821 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . 8, 12

Maryland v. Train,

415 F. Supp. 116 (D. Md. 1976) . . . . . . . . . . . . . . . . . . 11

Merrell v. Thomas,

807 F.2d 776 (9th Cir. 1986) . . . . . . . . . . . . . . . 4, 11, 17

Metro. Edison Co. v.

People Against Nuclear Energy,

460 U.S. 766 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Pac. Legal Found. v. Andrus,

657 F.2d 829 (6th Cir. 1981) . . . . . . . . . . . . . . . . . . . . 12

Portland Cement Ass’n v. Ruckelshaus,

486 F.2d 375 (D.C. Cir. 1973) . . . . . . . . . . . . . . . . . 10-11

v

Cited Authorities

Page

RadLAX Gateway Hotel, LLC v.

Amalgamated Bank,

566 U.S. 639 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Ramsey v. Kantor,

96 F.3d 434 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . 7

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

San Luis & Delta-Mendota Water Auth. v. Jewell,

747 F.3d 581 (9th Cir. 2014) . . . . . . . . . . . . . . . . . . . 6, 7

Save Our Ecosystems v. Clark,

747 F.2d 1240 (9th Cir. 1984) . . . . . . . . . . . . . . . . . 8, 12

Seven County Infrastructure Coalition v.

Eagle County,

605 U.S. 168 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Sierra Club v. Costle,

657 F.2d 298 (D.C. Cir. 1981) . . . . . . . . . . . . . . . . . . . 11

Sierra Club v. FERC,

754 F.2d 1506 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . 7

Warren Cnty. v. North Carolina,

528 F. Supp. 276 (E.D.N.C. 1981) . . . . . . . . . . . . . . . .11

Western Nebraska Resources Council v. EPA,

943 F.2d 867 (8th Cir. 1991) . . . . . . . . . . . . . . . . . 11, 17

vi

Cited Authorities

Page

Statutes and Other Authorities

16 U.S.C. § 797(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

16 U.S.C. § 1536 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

33 U.S.C. § 1344 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

33 U.S.C. § 1371(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

42 U.S.C. § 4332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

42 U.S.C. § 4332(2)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

42 U.S.C. § 4333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

42 U.S.C. § 4334 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

42 U.S.C. § 4335 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

42 U.S.C. § 4336(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

42 U.S.C. § 4336(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16

42 U.S.C. § 4336(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

42 U.S.C. § 4336(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

42 U.S.C. § 4336(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

42 U.S.C. § 4336a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

vii

Cited Authorities

Page

42 U.S.C. § 4336a(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

42 U.S.C. § 4336e(10)(A) . . . . . . . . . . . . . . . . . . . . . . 13, 14

42 U.S.C. § 4336e(10)(B)(i)(II) . . . . . . . . . . . . . . . . . . . . 14

42 U.S.C. § 4336e(10)(B)(v) . . . . . . . . . . . . . . . . . . . . . . . 14

42 U.S.C. § 4336e(10)(B)(vii) . . . . . . . . . . . . . . . . . . . . . . 14

42 U.S.C. § 4336e(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

42 U.S.C. § 6925(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

42 U.S.C. § 6925(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

42 U.S.C. § 6925(c)(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

42 U.S.C. § 6925(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

42 U.S.C. § 6961 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

42 U.S.C. § 6961(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 17

43 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

54 U.S.C. § 306108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Federal Facility Compliance Act of 1992, Pub. L.

No. 102-386, § 102(a), 106 Stat. 1505, 1505–06 . . . . . 6

1

INTEREST OF AMICI CURIAE1

Amici are a public-policy organization and a scholar of

regulatory policy whose work concerns the architecture of

federal regulation—in particular, how the government’s

general procedural obligations interact with the specific

substantive regimes Congress designs to govern discrete

activities. They share an interest in the institutional

question this case presents: when a federal entity applies

for a permit under a regime Congress has assigned to

a separate permitting authority, which actor holds the

operative environmental decision, and whether NEPA

review nonetheless attaches to the federal applicant.

Amici’s concern is not the merits of any particular project

but the structural rule the decision below would impose

across every such program.

The Foundation for American Innovation is a publicpolicy organization that champions the technology, talent,

and ideas essential to American prosperity, security, and

flourishing. Its work spans the domains most critical to the

vitality of the American republic, including governance

and state capacity, energy and infrastructure, science and

innovation, and technology and statecraft.

Christopher Koopman joins in his personal capacity.

He serves as Chief Executive Officer of the Abundance

Institute, was previously executive director of the Center

for Growth and Opportunity at Utah State University,

and formerly directed the Technology Policy Program

1. No counsel for any party authored this brief in whole or in

part. No party, counsel, or person other than Amici and their

counsel contributed money to fund the preparation and submission

of this brief.

2

at the Mercatus Center at George Mason University. His

scholarship addresses the National Environmental Policy

Act and the procedural burdens it imposes on federal

agency action. His institutional affiliation is listed for

identification only; the views expressed are his own.

Amici file this brief because the Ninth Circuit’s

holding would invite duplicative environmental review

whenever a federal entity participates as an applicant

in a state, tribal, or territorial permitting scheme. That

result conflicts with the specific-over-general canon, with

NEPA’s own limits on legal control and causation, and with

Congress’s assignment of the operative environmental

decision to the permitting authority.

SUMMARY OF ARGUMENT

The government is right that RCRA’s specific

permitting scheme controls over NEPA’s general

procedures. That result is no RCRA-only quirk or judgemade exemption. It follows from ordinary statutory

ordering, from NEPA’s own limits on control and

causation, and from the choice Congress made to give

the operative environmental decision to the permitting

authority, not to the applicant.

Four points follow. First, functional equivalence is a

court-recognized doctrine that reflects ordinary statutory

ordering, nothing more. Courts reach it when NEPA’s

general procedures overlap a specific decision process

Congress supplied for the same activity and the same

decision.

Second, the line between applicant and regulator

confirms the doctrine, because it marks who controls the

3

decision. The Ninth Circuit thought the Air Force fell

outside Siegelman because the agency was applying for

the permit rather than issuing it. That understanding is

backwards. RCRA gives the decision to the permitting

authority; the applicant only asks to enter the process.

Control therefore rests with Guam EPA.

Third, NEPA case law has always tied the duty to

prepare an environmental document to legal control and

causation. A document can inform only a major federal

action the agency can lawfully make. As the Air Force

cannot make this one, the duty does not apply.

Fourth, NEPA’s current text confirms the same

structure. The 2023 amendments need not decide this

case, but they do serve to confirm the threshold inquiry

the cases already performed.

Construed properly, the consequences of this Court

confirming the functional equivalence doctrine are

narrow. It leaves ordinary NEPA review in place and does

not require ruling on any other permitting regime. The

judgment should be reversed.

ARGUMENT

I.

The specific-over-general canon is only the starting

point.

Amici agree with the government that functional

equivalence is ordinary statutory ordering rather than

a special environmental-law exemption. The government

shows that the “specific governs the general,” that RCRA

comprehensively regulates hazardous-waste treatment

4

from cradle to grave, and that RCRA is therefore the

“equivalent and more specific counterpart of NEPA” for

that decision. Pet. Br. 36–38 (citing RadLAX Gateway

Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645

(2012); Alabama ex rel. Siegelman v. EPA, 911 F.2d 499,

504–05 (11th Cir. 1990)). Amici do not repeat that showing.

We address only what the canon leaves open.

The canon tells us that the specific governs the general.

It does not tell us why RCRA is the specific scheme that

controls a NEPA challenge aimed at the applicant rather

than the permitting authority. The Ninth Circuit thought

RCRA flunked the comparison because it carries no

NEPA-style alternatives clause, with review occurring

only after the application is filed. See Pet. App. 37a-39a.

That reasoning confuses difference with inequivalence—

the error the Ninth Circuit rejected in Merrell v. Thomas,

807 F.2d 776, 779–80 (9th Cir. 1986)—and it measures the

wrong thing. Equivalence is an expression of Congress’s

allocation of duty, not a tally of procedures. It turns on

whether Congress assigned the relevant environmental

decision to a specific review process, and on which actor

controls that decision. That is the question the canon leaves

open, and it is the subject of the Parts that follow.

II. The applicant-regulator line confirms the doctrine,

because it marks who controls the decision.

A.

RCRA gives Guam EPA the permit decision;

the Air Force only asks for it.

The Ninth Circuit placed this case outside the

functional-equivalence line because the Air Force is

a non-environmental agency applying for the permit

5

instead of the environmental agency issuing it. Pet. App.

40a–41a. That reverses the meaning of the line. Applicant

versus regulator matters precisely because it marks who

holds legal control. RCRA gives the operative decision

to the permitting authority, with the federal applicant’s

submission being only a step inside that process—a step

identical to that of any other private applicant. That

operative decision-making power is why the application is

not final agency action, and it is also why the application

is not the point at which NEPA attaches.

Functional equivalence instead attaches to the

permitting structure Congress assigned. Sometimes the

federal actor is the permitting authority, as EPA was in

Siegelman. Sometimes, as here, the federal actor is a

regulated applicant before another authority. Both are

governed by the same question: which actor controls the

environmental decision a NEPA document would inform?

RCRA answers that question for hazardous-waste

treatment. The permit is the operative authorization for

such activities. 42 U.S.C. § 6925(a). The applicant supplies

technical information and asks to enter the process; but

the permitting authority has the power to issue, deny,

modify, renew, or condition the permit. Id. § 6925(b),

(c)(1)–(3), (d). Congress built no separate federal track. It

placed the United States in the regulated-party role “to

the same extent as any person” under the same code. Id.

§ 6961(a). This Court confirmed as much in Dep’t of Energy

v. Ohio, 503 U.S. 607, 627–28 (1992), explaining that

§ 6961 subjects the United States to RCRA’s substantive

permitting requirements. Congress later amended § 6961

to supersede the separate sovereign-immunity holding as

to penalties, but not the Court’s recognition that federal

6

facilities are subject to RCRA’s substantive permitting

requirements. See Federal Facility Compliance Act of

1992, Pub. L. No. 102-386, § 102(a), 106 Stat. 1505, 1505–

06. And where EPA has authorized a State or territorial

program, that authority’s action carries the same force as

EPA’s. 42 U.S.C. § 6926(d). Guam EPA, not the Air Force,

holds the permitting power here.

B. NEPA duties run to the actor with decisional

control, not to the applicant seeking permission.

The Ninth Circuit ran two questions together: who

conducts the environmental review, and which statute

governs it. The answers are simple: the permitting

authority conducts the review; RCRA governs it. NEPA

attaches only to an action the agency can approve, deny,

or shape through the information NEPA review provides.

The Air Force may want to keep operating, and it may

submit what RCRA requires, but it cannot issue, deny,

or set the binding terms of the permit. RCRA gives that

power to the Administrator or the authorized State.

Therefore, those parties are the only ones potentially

subject to NEPA. There would be no question that NEPA

does not apply to the Air Force’s application decision if the

Guam EPA’s RCRA procedures were not exempt from it.

The Ninth Circuit’s own decisions fix the review duty

on the actor who controls the decision, not the one who asks

for it. In San Luis & Delta-Mendota Water Auth. v. Jewell,

747 F.3d 581, 651–52 (9th Cir. 2014), the court excused a

consulting agency from preparing a NEPA statement

on its biological opinion, because the duty fell instead on

“the action agency” that would adopt and carry out the

choice. An agency need not prepare its own statement, the

court reaffirmed, where another agency will authorize or

7

implement the action that triggers NEPA. Sierra Club

v. FERC, 754 F.2d 1506, 1509 (9th Cir. 1985). The limit

is a proxy for control, not a test of agency identity: the

consulting agency in San Luis was an environmental

agency, yet the duty turned on who held the decision. The

Air Force stands where the consulting agency stood. It

supplies information and asks Guam EPA to act; Guam

EPA holds the decision and will carry it out.

Nor does the doctrine exclusively apply to the EPA.

The Ninth Circuit has applied it to the Fish and Wildlife

Service for Endangered Species Act critical-habitat

designations, Douglas Cnty. v. Babbitt, 48 F.3d 1495,

1501–08 (9th Cir. 1995), and again in Bear Valley Mut.

Water Co. v. Jewell, 790 F.3d 977, 994 (9th Cir. 2015);

and to the National Marine Fisheries Service in Bldg.

Indus. Ass’n of the Bay Area v. U.S. Dep’t of Commerce,

792 F.3d 1027, 1035–36 (9th Cir. 2015). A district court

reached the same result for the Maritime Administration

in Basel Action Network v. Mar. Admin., 285 F. Supp.

2d 58, 63 (D.D.C. 2003), treating that agency’s reports

to Congress under a National Defense Authorization

Act pilot program as the functional equivalent of a

supplemental environmental assessment for four specified

ships. What unites these cases is Congress’s choice to vest

the environmental decision in a decisionmaker bound by

substantive environmental standards. Congress made

that choice here. RCRA assigns the operative decision

to EPA, and § 6926(d) gives Guam EPA’s action the same

force and effect.

The contrary cases prove the same rule. In Ramsey

v. Kantor, 96 F.3d 434, 444 (9th Cir. 1996), the agency

that issued an incidental-take statement had to prepare

8

a NEPA document only because no other federal actor

would; states, not a federal agency, issued the fishing rules

the statement made lawful, so review would otherwise

have escaped NEPA entirely. Review escapes nothing

here, because RCRA channels the decision to Guam

EPA, whose process supplies the equivalent. In Save Our

Ecosystems v. Clark, 747 F.2d 1240, 1247–48 (9th Cir.

1984), the Forest Service could not borrow EPA’s pesticide

registration to excuse NEPA review, because the effects to

be studied were those “of its [own] spraying program.” And

even Jones v. Gordon, 792 F.2d 821, 828–29 (9th Cir. 1986),

which required NEPA for a Marine Mammal Protection

Act permit, placed the duty on the agency that issued the

permit, not on an applicant. The Air Force issues nothing;

the permit is Guam EPA’s to grant, deny, or condition.

Prutehi Guahan counters by claiming that RCRA and

NEPA operate at different stages, so both can apply. That

claim mistakes timing as the relevant axis. The true axis

is how and to whom authority was allocated by Congress.

It is whether NEPA is being fastened to the decisionmaker

and the decision that Congress chose. The government

explains why the relevant allocation in this case means the

renewal application is not final agency action, and amici do

not repeat that showing. The point here is narrower: the

actor who lacks control over the decision is not the actor

a NEPA document would inform. Part III develops that

control principle.

III. NEPA case law has long tied the document duty to

control and causation.

NEPA’s document requirement attaches only to a

proposed action that the responsible agency has legal

power to control and decide. “Functional equivalence”

9

is just the name courts give that result when Congress

has assigned the environmental decision to a specific

process. The doctrine is carefully cabined by three lines

of authority: this Court’s causation cases, its cases on what

an environmental document is for, and the lower-court

decisions that apply both.

A.

Causation requires a close link among the

action, the agency’s authority, and the effect.

NEPA review has always carried causal limits. In

Metro. Edison Co. v. People Against Nuclear Energy, 460

U.S. 766, 774 (1983), the Court read “environmental effect”

and “environmental impact” to require “a reasonably

close causal relationship between a change in the physical

environment and the effect at issue,” a limit it compared to

“the familiar doctrine of proximate cause.” A bare but-for

link will not do; where the chain grows “too attenuated,”

the effect falls outside NEPA. Id. at 774–75.

In Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 770

(2004), this Court fixed what that limit means when the

asserted effect lies beyond the agency’s power: “[W]here

an agency has no ability to prevent a certain effect due to

its limited statutory authority over the relevant actions,

the agency cannot be considered a legally relevant ‘cause’

of the effect.” Causation tracks authority. Simple enough.

Seven County Infrastructure Coalition v. Eagle County,

605 U.S. 168, 181 (2025), re-emphasized that NEPA must

stay fixed on the project and the federal action before the

agency rather than reaching decisions or effects beyond

the agency’s regulatory reach. That is the flaw in Prutehi

Guahan’s theory. It uses the Air Force’s application as

a hook to compel review of a decision Congress gave to

Guam EPA.

10

B. A NEPA document must benefit a decision the

acting agency can lawfully make.

Public Citizen did more than trim the scope of effects

analysis. It also explained why environmental documents

exist: to inform an agency’s own choice. If the agency

cannot prevent the effect, the document cannot inform

its decision in the way NEPA contemplates. 541 U.S. at

768. A statement no decisionmaker can act on therefore

serves no NEPA purpose.

Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 352–53 (1989), and Flint Ridge Dev. Co. v. Scenic

Rivers Ass’n of Oklahoma, 426 U.S. 776, 788 (1976), both

confirm the point. Robertson held that NEPA does not

require an agency to present a complete mitigation plan

for effects that other governments will regulate. In that

case, because offsite mitigation lay with state and local

authorities, demanding that the federal agency finish

that work in advance was held to be “incongruous” with

NEPA’s purpose. 490 U.S. at 353. Flint Ridge held the

more general rule that NEPA’s statement requirement

yields where it would create an “irreconcilable and

fundamental conflict” with another scheme. 426 U.S. at

788. In both cases, the Court refused to fasten NEPA to

the legally operative agency where it was not capable of

benefiting from the review.

C.

Functional equivalence applies the same

control principle to specific environmental

statutes.

The functional equivalence doctrine is a logical

application of this more general principle. In Portland

11

Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 384–87 (D.C.

Cir. 1973), the D.C. Circuit treated Clean Air Act § 111

rulemaking as the “functional equivalent of a NEPA

impact statement” because the statute already required

environmental study in a form suited to that decision;

accord Essex Chem. Corp. v. Ruckelshaus, 486 F.2d 427,

431 (D.C. Cir. 1973); Amoco Oil Co. v. EPA, 501 F.2d 722,

749–50 (D.C. Cir. 1974). The same court set the limit in

Env’t Def. Fund, Inc. v. EPA: “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.” 489 F.2d 1247,

1257 (D.C. Cir. 1973). The court added that it was “not

formulating a broad exemption from NEPA.” Id.

The doctrine has been applied across the environmental

permitting landscape. Maryland v. Train, 415 F. Supp.

116, 121–22 (D. Md. 1976), applied it to Ocean Dumping

Act permitting. It was applied to RCRA in Siegelman,

911 F.2d at 504–05; to FIFRA in Merrell, 807 F.2d at

779–80; to the Safe Drinking Water Act’s undergroundinjection review in Western Nebraska Resources Council

v. EPA, 943 F.2d 867, 871–72 (8th Cir. 1991); to the Clean

Air Act in Getty Oil Co. v. Ruckelshaus, 467 F.2d 349, 359

(3d Cir. 1972), and Sierra Club v. Costle, 657 F.2d 298,

331–32 (D.C. Cir. 1981); to the Toxic Substances Control

Act in Warren Cnty. v. North Carolina, 528 F. Supp. 276,

286–87 (E.D.N.C. 1981); and to Endangered Species Act

designations in Douglas Cnty., 48 F.3d at 1501–08, and

Bldg. Indus., 792 F.3d at 1033–34. Merrell’s reasoning is

particularly notable. There the Ninth Circuit declined to

“superimpose NEPA’s procedures on top of the FIFRA

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registration procedure” because Congress had chosen a

different one for the same decision, stating that “Congress

has made its choice”—even though FIFRA did not copy

NEPA clause by clause. 807 F.2d at 779–80.

The decisions on the other side apply the same test

and find the predicate missing. Catron Cnty. Bd. of

Comm’rs v. U.S. Fish & Wildlife Serv., 75 F.3d 1429, 1437

(10th Cir. 1996), required review because there, unlike

in Douglas County, the court found that ESA criticalhabitat designation was “partial fulfillment” that “is

not enough,” i.e., not an integrated permitting process.

Save Our Ecosystems likewise refused to let the Forest

Service borrow EPA’s FIFRA registration because the

registration was not a replacement for the Forest Service’s

own pesticide-spraying program. 747 F.2d at 1247–48.

And Jones required NEPA review for a Marine Mammal

Protection Act permit because the permit decision itself

belonged to the federal agency and the statute did not

provide a NEPA-equivalent substitute. 792 F.2d at 828–29.

These cases reject overbroad functional equivalence. They

do not reject the doctrine.

Pac. Legal Found. v. Andrus is the most instructive

of these cases, because it separates the label from the

principle. In the case, the Sixth Circuit did not treat ESA

listing as a full NEPA substitute but ruled that NEPA

still did not apply because the Endangered Species Act

confines the listing decision to statutory factors that bar

the Secretary from weighing the very consequences the

plaintiffs wanted studied. 657 F.2d 829, 835–40 (6th Cir.

1981). The lesson is that the phrase “functional equivalence”

is shorthand for operative legal control. The question is

solely whether the agency holds decisional authority over

13

the environmental choice a NEPA document could inform

and thereby modify. Here, the Air Force does not.

IV. NEPA’s current text confirms the same controlbased structure.

Current NEPA asks a threshold question before any

document is prepared: what proposed action is before

the agency, and does the agency hold the congressionally

allocated control and responsibility that make a document

useful? The 2023 amendments answer with the same

control principle the cases applied. They need not govern

the case at hand retroactively to confirm it.

A.

The document duty is a threshold determination

based on control.

Section 4336 is titled “Procedure for determination

of level of rev iew,” a nd § 4 3 3 6 (a) —“ T h reshold

determinations”—provides that an agency “is not required

to prepare an environmental document with respect to a

proposed agency action” in four situations: where the

action “is not a final agency action,” § 4336(a)(1); where

another provision of law “exclude[s]” it, § 4336(a)(2); where

preparing the document “would clearly and fundamentally

conflict with the requirements of another provision of

law,” § 4336(a)(3); or where it is “a nondiscretionary

action” for which the agency lacks “authority to take

environmental factors into consideration,” § 4336(a)(4). 42

U.S.C. § 4336(a). No document is due unless a proposed

action clears those control screens.

Such a proposed action must also be a “major federal

action.” Section 4336e(10)(A) defines “major Federal

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action” as one “the agency carrying out such action

determines is subject to substantial Federal control and

responsibility.” 42 U.S.C. § 4336e(10)(A). The definition

excludes categories where federal involvement gives

the agency no control over the outcome—a non-Federal

action “with no or minimal Federal involvement where

a Federal agency cannot control the outcome of the

project,” id. § 4336e(10)(B)(i)(II); enforcement actions,

id. § 4336e(10)(B)(v); and “activities or decisions that are

non-discretionary,” id. § 4336e(10)(B)(vii). That structure

is antithetical to the Ninth Circuit’s identity-based move.

Meeting the bar for such actions turns on the level of

control, not on whether a federal entity sits somewhere

in the picture.

Further still, a “proposal” itself exists only “at a

stage when an agency has a goal, is actively preparing

to make a decision on one or more alternative means of

accomplishing that goal, and can meaningfully evaluate its

effects.” 42 U.S.C. § 4336e(12). That is not every federal

step that could possibly have environmental consequences.

It is the point at which the agency tasked by Congress

with managing the process prepares to choose among

alternatives. A regulated party handing materials to

another permitting authority has not reached that point

nor is it responsible for the permit decision.

B. The statute delineates responsibilities between

responsible officials and applicants.

NEPA’s detailed-statement requirement directs “the

responsible official” to prepare the statement for major

federal actions, and provides that the statement and

comments “shall accompany the proposal through the

15

existing agency review processes.” 42 U.S.C. § 4332(2)(C).

The duty tracks the acting agency’s own action and its

own review. That is not the Air Force’s role in Guam

EPA’s permit decision. The Air Force may submit

information; Guam EPA carries the decision through the

RCRA process. NEPA directs compliance only “to the

fullest extent possible,” § 4332, and not where it would

fundamentally conflict with the specific scheme Congress

wrote. See Flint Ridge, 426 U.S. at 788. Here, that conflict

is a usurpation of Guam EPA’s congressionally mandated

authority over the RCRA permitting process.

Two neighboring provisions confirm this ordering.

Section 4334 provides that nothing in § 4332 or § 4333

“shall in any way affect the specific statutory obligations

of any Federal agency” to meet environmental-quality

standards, to consult with other agencies, or to act on

another agency’s recommendation or certification. 42

U.S.C. § 4334. Section 4335 further declares NEPA’s

policies “supplementary to those set forth in existing

authorizations of Federal agencies.” Id. § 4335. Thus when

an agency has been granted the authority to manage a

permitting process, NEPA may supplement that authority.

But the authorized agency cannot grant its authority to

another agency by turning that agency into an applicant.

Prutehi Guahan may answer that current NEPA

lets applicants prepare environmental documents, so

the Air Force can prepare one here. Section 4336a

forecloses that reading. It lets a project sponsor prepare

an assessment or impact statement only under the lead

agency’s supervision, and it requires the lead agency

to “independently evaluate” the document and “take

responsibility for [its] contents.” 42 U.S.C. § 4336a(f). The

16

section addresses who may prepare a document after the

lead agency has found that NEPA requires one. Here,

Guam EPA has not made that finding.

C.

The amendments confirm the rule; they need

not apply retroactively.

The Court need not give the 2023 amendments

retroactive force over a 2021 application. The point is

threefold. The earlier cases already recognized the same

control-and-allocation principle. Any prospective relief—

an order to perform NEPA review now—would run under

current NEPA. And for future applications, § 4336(a)(1)

makes a finality holding dispositive on its own: if an

application is not final agency action, no document is due.

Old law supplies the result and the current text confirms it.

V. The rule is narrow and leaves ordinary NEPA

review intact.

Functional equivalence does not erase NEPA. Formal

EA/EIS procedures drop out only when four conditions

hold: the other statute governs the same activity and

the same environmental decision; Congress supplied a

specific permitting process for that activity and decision;

the challenged act is part of that process rather than a

separate, consummated federal decision; and the plaintiff

points to no distinct final major federal action outside the

framework. Each condition is a limit from the text and

case law that must be met.

So the Court need not decide Clean Water Act § 404

permitting, 33 U.S.C. § 1344; OCSLA leasing, 43 U.S.C.

§ 1337; FPA hydropower licensing, 16 U.S.C. § 797(e);

17

ESA consultation, 16 U.S.C. § 1536; NHPA § 106 review,

54 U.S.C. § 306108; federal land transfers; or federal

funding today. Many of those programs turn on a federal

agency’s own permit, approval, consultation, funding,

land-use, or licensing decision. Whether Congress has

created a specific environmental decision process for those

decisions that causes NEPA’s generic procedure to yield

can be handled individually.

The Clean Water Act’s express carve-out, 33 U.S.C.

§ 1371(c)(1), does not change this. As Part IV explains,

§ 511(c) shows only what Congress chose for that Act;

it does not make an express carve-out the sole route

to displacement. Flint Ridge displaced NEPA through

statutory conflict without one, and Merrell, Siegelman,

and Western Nebraska reached the same result on

ordinary specific-over-general reasoning.

NEPA thus stays fully available for separate final

major federal actions—siting, construction, funding,

land transfer, operational approval, federal licensing, or

any other decision not subject to a separate statutory

environmental decision process—over which the agency

holds substantial control. But NEPA does not turn a

federal applicant’s entry into another statute’s permitting

process into an antecedent environmental review gate.

The Air Force’s choice to keep treating waste is not a

separate action. That operation is lawful only by virtue

of the permit, and § 6961(a) places the United States

in the regulated-party role “to the same extent as any

person.” A regulated applicant cannot authorize its own

hazardous-waste treatment; only Guam EPA can. The

operative decision is the permit, and the permit is not the

Air Force’s to provide.

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CONCLUSION

The Court should reverse and hold that NEPA’s

formal EA/EIS procedures are not required before a

federal facility submits a RCRA renewal application to

the permitting authority, where RCRA governs the same

hazardous-waste decision and no distinct final major

federal action lies outside that framework.

Respectfully submitted,

Tim Hwang

Counsel of Record

Foundation for

A merican Innovation

2443 Fillmore Street,

#380-3386

San Francisco, CA 94115

(973) 960-4955

tim.hwang@thefai.org

Counsel for Amici Curiae

May 2026