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

Supreme Court briefJul 20, 2026

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No. 25-579

IN THE

Supreme Court of the United States

DEPARTMENT OF THE AIR FORCE, ET AL.,

Petitioners,

PRUTEHI GUÅHAN,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR RESPONDENT

DAVID L. HENKIN

EARTHJUSTICE

850 Richards Street

Suite 400

Honolulu, HI 96813

LINNET DAVIS-STERMITZ

EARTHJUSTICE

810 Third Avenue

Suite 610

Seattle, WA 98104

CAROLINE A. FLYNN

Counsel of Record

KIRTI DATLA

THIEN T. CHAU

EARTHJUSTICE

1250 Eye Street NW

Floor 4

Washington, DC 20001

(202) 797-4316

cflynn@earthjustice.org

Counsel for Respondent

QUESTIONS PRESENTED

The National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. §§ 4321 et seq., requires federal

agencies to prepare a statement evaluating

environmental effects and potential alternatives

before proposing any major federal action. The

Resource Conservation and Recovery Act of 1976

(RCRA), 42 U.S.C. §§ 6901 et seq., requires facilities,

including those operated by federal agencies, to secure

a permit to treat hazardous waste. Pursuant to a

regulation of the RCRA permitting authority in this

case (the Guam Environmental Protection Agency), a

facility’s submission of a permit-renewal application

automatically extends the prior permit term until the

permitting authority acts on the application.

The questions presented are:

1. Whether the court of appeals correctly

concluded that the Air Force’s decision to treat

hazardous-waste munitions using a particular

method at a particular site constitutes final agency

action.

2. Whether the court of appeals correctly

concluded that NEPA applies to the Air Force’s

decision to dispose of hazardous-waste munitions

using a particular method at a particular site, even

though that activity also requires a RCRA permit

from the Guam Environmental Protection Agency.

(i)

PARTIES TO THE PROCEEDING

Petitioners (defendants-appellees below) are the

United States Department of the Air Force; Troy E.

Meink, Secretary of the Air Force; the United States

Department of Defense; and Pete Hegseth, Secretary

of Defense. Individual petitioners sued in their

official capacities have been automatically substituted

for their predecessors in office. See Sup. Ct. R. 35.3.

Respondent (plaintiff-appellant below) is Prutehi

Guåhan, formerly known as Prutehi Litekyan: Save

Ritidian.

iii

CORPORATE DISCLOSURE STATEMENT

Under Supreme Court Rule 29.6, respondent

Prutehi Guåhan states that it is a nonprofit

organization that has no parent corporation and no

publicly held company has any ownership interest in

it.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT .......... iii

TABLE OF AUTHORITIES.......................................vi

STATUTORY AND REGULATORY PROVISIONS

INVOLVED..................................................................1

INTRODUCTION ........................................................1

STATEMENT ..............................................................3

A. Factual Background ........................................3

B. Legal Background ............................................7

C. Procedural Background ................................. 10

SUMMARY OF ARGUMENT ................................... 14

ARGUMENT ............................................................. 18

RCRA Does Not Displace NEPA’s Mandate To

Examine Environmental Impacts Before

Deciding To Conduct Open-Detonation

Operations ........................................................... 18

A. Congress Directed That NEPA’s

Requirements Give Way To Another Statute

In Specific Circumstances Absent Here ....... 18

B. Petitioners’ “Functional Equivalence” Test

Flouts Basic Rules Of Statutory

Interpretation ................................................ 22

C. RCRA’s Permitting Requirements Are Not

The Functional Equivalent Of NEPA

Obligations ..................................................... 32

D. NEPA Compliance Strengthens Agency

Planning ......................................................... 36

II. The Air Force’s Decision To Conduct OpenDetonation Operations On Tarague Beach Is

Final Agency Action ............................................ 38

A. The Air Force’s Permit Application

Consummated Its Decisionmaking ............... 39

B. Legal Consequences Flowed From The Permit

Application ..................................................... 44

C. Hearing The NEPA Claim Now Furthers

Sound Principles Of Judicial Review ............ 51

CONCLUSION .......................................................... 54

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) .................................. 40, 46, 50

Andrus v. Sierra Club,

442 U.S. 347 (1979) .............................................. 33

Axon Enterprise, Inc. v. FTC,

598 U.S. 175 (2023) .............................................. 32

Baltimore Gas & Elec. Co. v. Natural Res. Def.

Council, Inc.,

462 U.S. 87 (1983) ..................................................7

Bennett v. Spear,

520 U.S. 154 (1997) ...... 13-14, 16-17, 39-40, 47, 49

Biden v. Texas,

597 U.S. 785 (2022) .................................. 16, 42, 50

Bowen v. Michigan Acad. of Family Physicians,

476 U.S. 667 (1986) .............................................. 38

City of Chicago v. Environmental Def. Fund,

511 U.S. 328 (1994) ................................................9

City of Phoenix v. Arizona Dep’t of Env’t Quality,

74 P.3d 250 (Ariz. Ct. App. 2003) ........................ 53

Dalton v. Specter,

511 U.S. 462 (1994) .............................................. 50

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) .............................15, 23-25, 27

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

426 U.S. 776 (1976) .......................12, 14, 18, 21-22

Franklin v. Massachusetts,

505 U.S. 788 (1992) .............................................. 50

FTC v. Standard Oil Co.,

449 U.S. 232 (1980) ........................................ 48, 51

National Ass’n of Home Builders v. Defenders of

Wildlife,

551 U.S. 644 (2007) .............................................. 23

Pan-Atlantic S.S. Corp. v. Atlantic Coast Line

R.R. Co.,

353 U.S. 436 (1957) .............................................. 48

Pennhurst State Sch. & Hosp. v. Hardiman,

465 U.S. 89 (1984) ................................................ 53

Port of Boston Marine Terminal Ass’n v.

Rederiaktiebolaget Transatlantic,

400 U.S. 62 (1970) ................................................ 46

Portland Cement Ass’n v. Ruckelshaus,

486 F.2d 375 (D.C. Cir. 1973) ........................ 26-27

RadLax Gateway Hotel, LLC v. Amalgamated Bank,

566 U.S. 639 (2012) .............................................. 24

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Rico v. United States,

607 U.S. 609 (2026) .............................................. 49

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) ...................................... 1, 8, 19

Sackett v. EPA,

566 U.S. 120 (2012) .................................. 16, 41, 43

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

605 U.S. 168 (2025) .............................. 7, 19, 31, 38

Southwest Airlines Co. v. Saxon,

596 U.S. 450 (2022) .............................................. 27

State of Alabama ex rel. Siegelman v. U.S. EPA,

911 F.2d 499 (11th Cir. 1990) .............................. 27

Thompson v. United States,

604 U.S. 408 (2025) .............................................. 21

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

578 U.S. 590 (2016) .............................41-42, 46, 51

United States v. Johnson,

529 U.S. 53 (2000) ................................................ 26

Whitman v. American Trucking Ass’ns,

531 U.S. 457 (2001) .............................................. 40

Statutes

5 U.S.C. § 551(4) ........................................................ 39

TABLE OF AUTHORITIES—Continued

Page(s)

5 U.S.C. § 551(13) ................................................ 39, 48

5 U.S.C. § 558(c) ........................................................ 48

5 U.S.C. § 704 ................................................ 12, 39, 52

5 U.S.C. § 706(2) ........................................................ 52

10 U.S.C. § 2667(g)(4)................................................ 20

15 U.S.C. § 793(c)(1) .................................................. 19

15 U.S.C. § 793(c)(2) .................................................. 20

15 U.S.C. § 4652(h).................................................... 20

15 U.S.C. § 4659(d) .................................................... 20

16 U.S.C. § 544o(f) ..................................................... 20

16 U.S.C. § 1536(k) .................................................... 20

30 U.S.C. § 1251(a) .................................................... 20

30 U.S.C. § 1292(d) .................................................... 20

30 U.S.C. § 1419(d) .................................................... 20

33 U.S.C. § 1371(c)(1) ................................................ 20

42 U.S.C. § 4331(b) ......................................................8

42 U.S.C. § 4331(b)(4) ............................................... 36

TABLE OF AUTHORITIES—Continued

Page(s)

42 U.S.C. § 4332 .............................................. 8, 21, 25

42 U.S.C. § 4332(1) .................................................... 18

42 U.S.C. § 4332(2) .................................................... 18

42 U.S.C. § 4332(2)(C) ...................... 7-8, 18-19, 36, 44

42 U.S.C. § 4332(2)(C)(i) .............................................7

42 U.S.C. § 4332(2)(C)(iii) ..................................... 7, 34

42 U.S.C. § 4332(2)(F) ............................................... 34

42 U.S.C. § 4336 ........................................................ 25

42 U.S.C. § 4336(a)(1) ............................................... 52

42 U.S.C. § 4336(a)(2) .................. 2, 8-9, 14, 19, 32, 38

42 U.S.C. § 4336(a)(3) ..................... 2, 9, 14, 19, 21, 32

42 U.S.C. § 4336(b)(2) .................................................8

42 U.S.C. § 4336a ...................................................... 25

42 U.S.C. § 4336a(2) ....................................................8

42 U.S.C. § 4336a(3) ....................................................8

42 U.S.C. § 4336a(b) ....................................................8

42 U.S.C. § 4336a(c) ....................................................7

TABLE OF AUTHORITIES—Continued

Page(s)

42 U.S.C. § 4336b ................................................ 25, 37

42 U.S.C. § 4336c............................................. 8, 25, 38

42 U.S.C. § 4336e(1) .................................................. 38

42 U.S.C. § 5159 ........................................................ 20

42 U.S.C. § 6905(b)(1) ............................................... 21

42 U.S.C. § 6924(a) ......................................................9

42 U.S.C. § 6925 ..........................................................9

42 U.S.C. § 6925(b) .......................................... 9, 33-34

42 U.S.C. § 6925(c)(1) ................................................ 33

42 U.S.C. § 6925(c)(3) ...................................... 9, 10, 35

42 U.S.C. § 6926 ..........................................................9

42 U.S.C. § 6926(b) .................................................... 32

42 U.S.C. § 6929 .................................................... 9, 32

42 U.S.C. § 8473 ........................................................ 20

42 U.S.C. § 10141(c) .................................................. 20

42 U.S.C. §§ 4321 et seq. .............................................1

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

xii

TABLE OF AUTHORITIES—Continued

Page(s)

45 U.S.C. § 791(c) ...................................................... 20

An Act to provide for starling and blackbird control

in Kentucky and Tennessee, Pub. L. No. 94-207,

90 Stat. 28 (1976) ................................................. 20

Bill Williams River Water Rights Settlement Act of

2014, Pub. L. No. 113-223, 128 Stat. 2096 .......... 20

Building Chips in America Act of 2023, Pub. L.

No. 118-105, 138 Stat. 1587................................. 20

Federal Facility Compliance Act of 1992, Pub. L.

No. 102-386, 106 Stat. 1505 ................................ 21

Federal Water Pollution Control Act of 1972, Pub. L.

No. 92-500, 86 Stat. 816....................................... 21

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

137 Stat. 10 ..................................................... 7, 25

National Defense Authorization Act for Fiscal Year

2014, Pub. L. No. 113-66, 127 Stat. 672 (2014) .. 20

Navajo and Hopi Indian Relocation Amendments Act

of 1980, Pub. L. No. 96-305, 94 Stat. 929 ............ 20

Resource Conservation and Recovery Act of 1976,

Pub. L. No. 94-580, 90 Stat. 2795..........................9

Regulations

22 Guam Admin. R. & Regs. § 30107(a) ................... 31

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

22 Guam Admin. R. & Regs. § 30109(a) ................... 10

22 Guam Admin. R. & Regs. § 30109(m) .................. 10

22 Guam Admin. R. & Regs. § 30109(o) ................... 10

32 C.F.R. § 651.14(e)(9) (2021).................................. 28

40 C.F.R. § 124.6 ....................................................... 30

40 C.F.R. § 124.9 ....................................................... 30

40 C.F.R. § 124.9(a) ................................................... 30

40 C.F.R. § 124.9(b)(6) ............................................... 30

40 C.F.R. § 124.19(l)(2) ............................................. 47

40 C.F.R. § 265.382 ................................................... 31

40 C.F.R. § 266.204 ................................................... 35

40 C.F.R. § 270.1(c)(3)(i)(D)....................................... 35

40 C.F.R. § 270.51(a) ..................................... 10, 44-45

40 C.F.R. § 1501.4 (2021) ............................................8

40 C.F.R. § 1501.9(f)(4) (2021) .................................. 37

40 C.F.R. § 1502.24(a) (2021) .................................... 37

40 C.F.R. § 1502.24(b) (2021) .................................... 28

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

40 C.F.R. § 1502.5 (2021) .......................................... 37

40 C.F.R.§ 1503.3(d) (2021) ...................................... 28

40 C.F.R. § 1503.3(e) (2021) ..................................... 28

40 C.F.R. § 1508.1(g)(4) (2021) ................................. 36

40 C.F.R. § 1508.1(m) (2021)..................................... 36

Dep’t of War, Department of War National

Environmental Policy Act Implementing

Procedures (last updated Apr. 30, 2026),

perma.cc/NSP2-KY3V ..................... 7, 28-29, 35-38

Other Authorities

H.R. 1577, 118th Cong., § 2(b) (Mar. 14, 2023) ........ 26

169 Cong. Rec. S1877 (daily ed. June 1, 2023)......... 25

43 Fed. Reg. 55978 (Nov. 29, 1978) .......................... 36

44 Fed. Reg. 34244 (June 14, 1979) .......................... 30

45 Fed. Reg. 33290 (May 19, 1980) ........................... 30

65 Fed. Reg. 20140 (Apr. 14, 2000) ........................... 35

72 Fed. Reg. 53652 (Sept. 19, 2007) ......................... 30

85 Fed. Reg. 43304 (July 16, 2020) ........................... 22

TABLE OF AUTHORITIES—Continued

Page(s)

Andrew Tilghman, Cong. Rsch. Serv., Guam: Defense

Infrastructure and Readiness (2023) .....................4

Antonin Scalia & Bryan A. Garner, Reading Law

(2012) .............................................................. 24-25

Ashley Stava et al., Quantifying the Substantive

Influence of Comment on United States Federal

Environmental Decisions under NEPA, 20 Env’t

Rsch. Letters, 2025 .............................................. 34

Cal. Env’t Prot. Agency, Draft Environmental Impact

Report/Environmental Assessment: Edwards Air

Force Base Open Burn/Open Detonation Units

(Aug. 2013), perma.cc/QT4G-7B4T ..................... 29

Cong. Rsch. Serv., The National Environmental

Policy Act (NEPA) (Jan. 10, 2011) .........................8

Dep’t of Army, National Environmental Policy Act:

NEPA Overview (Jan. 2019),

perma.cc/4W4H-V83Z ...................................... 3, 22

Dep’t of Energy, Argonne Nat’l Lab., Technology

Resource Document for the Assembled Chemical

Weapons Assessment Environmental Impact

Statement (May 2001), perma.cc/SXJ6-2HQ2..... 37

Dep’t of Energy, Environmental Assessment for the

Explosive Waste Treatment Facility at Site 300

(Nov. 1995), perma.cc/YNZ3-Q3QB ............... 29, 36

xvi

TABLE OF AUTHORITIES—Continued

Page(s)

Dep’t of Navy, Tarague Beach, perma.cc/5QR7NSHJ?type=image .................................................5

EPA, Alternative Treatment Technologies to Open

Burning and Open Detonation of Energetic

Hazardous Wastes (2019),

perma.cc/3UY4-JQ7C.............................................6

EPA, Current Open Burning/Open Detonation

Facilities (last updated July 29, 2025),

perma.cc/6U4Q-QD6A............................................7

EPA, National Priorities List (NPL) Sites - by State

(last updated May 12, 2026),

perma.cc/39Z7-8AFG .............................................4

Guam Comm’n on Decolonization, Guam: A Territory

Like No Other (last visited July 16, 2026),

perma.cc/FT2F-U8NF ............................................3

Memorandum from Beverly Cook, Ass’t Sec’y, Dep’t

of Energy, to Secretarial Officers and Heads of

Field Organizations, DOE Policies on Application

of NEPA to CERCLA and RCRA Cleanup Actions

(July 11, 2002), perma.cc/Z4JG-8X4N ................ 28

Nat’l Acads. of Scis., Eng’g, & Med., Alternatives for

the Demilitarization of Conventional Munitions

(2019), perma.cc/9Z2R-ALSQ ............................ 5-6

xvii

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Army Corps of Eng’rs, Final Environmental

Assessment for Installing and Operating a

Thermal Treatment Facility (Mar. 2020),

perma.cc/9BGX-SEQZ .......................................... 29

U.S. Army Corps of Eng’rs, Scoping Report (Aug.

2008), perma.cc/K7FW-68EW ............................. 34

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Relevant statutory and regulatory provisions are

reproduced in the appendix to this brief.

INTRODUCTION

In 2021, the Department of the Air Force decided

to destroy expired munitions by detonating those

hazardous explosives in the open air on a beach in

northern Guam. The detonation range is adjacent to

the Pacific Ocean. The beach is an important cultural

and historical site. And the range sits atop Guam’s

main source of drinking water. There is no question

that these operations significantly affect the human

environment. The National Environmental Policy Act

of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq., therefore

required the Air Force to first examine those effects,

evaluate alternative options, and seek public input

before deciding to proceed. The Air Force did not.

For the people of Guam, those procedural failures

fit a familiar pattern. Respondent—who represents

CHamoru families, landowners, and other local

stakeholders—accordingly turned to the federal

courts to hold the Air Force accountable to NEPA’s

most basic requirements. All respondent asks is that

the Air Force meaningfully consider the impacts of

and alternatives to these open-detonation operations,

including less sensitive locations. And as NEPA

envisions, respondent asks for that hard look before

the agency decides to move forward—that is, before

“resources have been committed or the die otherwise

cast.” Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 349 (1989).

(1)

The Air Force claims that a different law, the

Resource Conservation and Recovery Act of 1976

(RCRA), 42 U.S.C. §§ 6901 et seq., implicitly relieved

it of those obligations. That argument ignores that

when Congress has exempted agency actions under

other environmental laws from NEPA review,

Congress has said so expressly. It ignores this Court’s

precedent, which interpreted NEPA to give way only

where there is an irreconcilable and fundamental

conflict with another law’s requirements. It ignores

that Congress recently codified those two principles,

instructing that another law displaces NEPA only if

that law says so (RCRA does not) or there is a clear

conflict between the two (none exists here). 42 U.S.C.

§ 4336(a)(2)-(3). And it ignores that the Department

of Defense’s own procedures take as a given that

NEPA applies even if a component must also seek a

permit under a statute like RCRA.

Perhaps recognizing that their argument for the

statute’s displacement is unsustainable, petitioners

also contend that any NEPA violation in this case is

unreviewable. Specifically, they argue that the Air

Force’s decision to continue open-detonation

operations at this site—memorialized in its 2021

RCRA permit-renewal application—was not final

agency action under the Administrative Procedure

Act (APA). But petitioners do not represent that the

Air Force is still internally debating whether to

continue open-detonation past 2021. Nor could they,

as the Air Force’s submission of its renewal

application extended the prior permit’s term, and the

Air Force has in fact continued operations under that

extended authorization for nearly five years. That

legal consequence, among others, more than suffices

to enable respondent to turn to the courts now. There

is nothing to be gained by forcing respondent to wait

to challenge the Air Force’s decisionmaking under

NEPA until a different entity makes a decision under

a different law.

Petitioners’ determination to bypass NEPA in this

instance is at odds with other agency practice,

including in the hazardous-waste-munitions context.

It is also misguided as a policy matter. Far from being

an unusual application of NEPA, this situation caters

to one of the statute’s strengths: streamlining analysis

under different environmental laws in one place at an

early juncture. Or as one DOD component has put it,

“NEPA saves time and money” by “reduc[ing]

uncertainties and facilitat[ing] compliance with other

environmental laws.”

Dep’t of Army, National

Environmental Policy Act: NEPA Overview 1 (Jan.

2019) (Army NEPA Overview), perma.cc/4W4H-V83Z.

If that is truly too burdensome for petitioners, they

can ask Congress to create an exemption to NEPA for

RCRA permitting. But this Court should not pencil

one in. Nor should it undermine NEPA enforcement

in the permitting context by endorsing the

government’s cramped understanding of finality. The

judgment below should be affirmed.

STATEMENT

A. Factual Background

As an unincorporated U.S. Territory, important

decisions about Guam are made “with little to no

input from the people of this island.” Guam Comm’n

on Decolonization, Guam: A Territory Like No Other 5

(last visited July 16, 2026), perma.cc/FT2F-U8NF.

One consequence is that the “natural resources of

Guam continue to be exploited.” Id.

The U.S. military’s presence in Guam shapes the

island’s environment. See Andrew Tilghman, Cong.

Rsch. Serv., Guam: Defense Infrastructure and

Readiness 1, 6 (2023) (the military owns about 25% of

Guam’s land). Decisions the military made nearly a

century ago caused damage that still requires

extensive and expensive cleanup. See, e.g., EPA,

National Priorities List (NPL) Sites - by State (last

updated May 12, 2026), perma.cc/39Z7-8AFG (listing

two Superfund cleanup sites in Guam: a base and a

former military landfill). And military decisions made

more recently compound the damage Guam already

bears.

One such decision concerns the Air Force’s use of

open burning and open detonation (OB/OD) to destroy

hazardous-waste munitions like bombs, landmines,

and missiles. Starting in 1982, the Air Force has

conducted OB/OD on Andersen Air Force Base

(Andersen AFB) in northern Guam. Pet. App. 12a.

The Air Force suspended its OB operations in the

2000s, but OD continues. Id.; J.A. 19.

Andersen’s detonation range is located on Tarague

Beach, about 50 yards from the Pacific Ocean. J.A. 3;

see also J.A. 85, 90-94 (photos). The range is located

on ancestral land that the military seized from local

families after World War II. J.A. 3. Tarague Beach is

also adjacent to culturally significant fishing

locations—upon which local families depend for

sustenance—and contains sites for collecting

traditional medicines. J.A. 3, 6-7. And Tarague is

“one of the oldest occupied sites documented in the

Marianas” and “one of Guam’s most significant

archeological sites,” with “deposits dating back to the

2nd millennium BC.” Dep’t of Navy, Tarague Beach,

perma.cc/5QR7-NSHJ?type=image.

Finally, the

detonation range sits above an aquifer that provides

drinking water to over 80% of the island’s population.

J.A. 20.

OD operation at Tarague Beach, J.A. 3.

Open detonation typically involves placing

munitions in a pit and triggering detonation. Nat’l

Acads. of Scis., Eng’g, & Med., Alternatives for the

Demilitarization of Conventional Munitions 7 (2019)

(National Academies), perma.cc/9Z2R-ALSQ. As the

name suggests, this method is inherently

uncontrolled,

and

operations

“release

contaminants . . . directly into the environment.” Id.

at 1.

OD operations on Tarague Beach are no different.

Explosions eject unexploded ordnance and ordnance

fragments into the surrounding area, including the

ocean and reef. J.A. 20, 102-06. The explosions also

release toxic chemicals—like smoke, explosive

material, and heavy metals—directly into the air and

soil.

C.A. S.E.R. 133; National Academies 7.

Hazardous constituents threaten to reach the aquifer

and contaminate Guam’s water supply. J.A. 20; C.A.

S.E.R. 394. And it may be impossible to fully

decontaminate the range and remove unexploded

material once operations cease, rendering the area offlimits even once closed. J.A. 20-21, 73.

The military has nonetheless relied on OD as a

cheap and uncomplicated way to destroy expired

munitions.

National Academies 1.

But as a

congressionally mandated study concluded in 2019,

safe and feasible alternative methods now exist. Id.

at 1-6.

These include contained detonation or

contained treatment. Id. at 1. “[T]here are no

significant technical, safety, or regulatory barriers to

the full-scale deployment of [those] alternative

technologies.” Id. at 93; see also EPA, Alternative

Treatment Technologies to Open Burning and Open

Detonation of Energetic Hazardous Wastes 12 (2019),

perma.cc/3UY4-JQ7C

(EPA

report

likewise

concluding that “safe alternatives exist and are being

used”). And the study found that these alternatives

have upsides: They can be carried out at all hours, in

most weather conditions, and avoid the long-term

remediation costs associated with OB/OD. National

Academies 1-2.

Nor is Tarague Beach, or Andersen AFB more

generally, the only potential location for OD

operations. There are several military and private

facilities in the continental United States that have

OB/OD authorization.

See EPA, Current Open

Burning/Open Detonation Facilities (last updated

July 29, 2025), perma.cc/6U4Q-QD6A.

B. Legal Background

1. NEPA is a “procedural statute” enacted to

“help[] federal] agencies to make better decisions and

to ensure good project management” when those

agencies take action affecting the environment. Seven

Cnty. Infrastructure Coal. v. Eagle Cnty., 605 U.S.

168, 177 (2025). It mandates that agencies “take a

‘hard look’ at the environmental consequences before

taking a major action.” Baltimore Gas & Elec. Co. v.

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

NEPA does this by requiring “all” federal agencies

to include a “detailed statement” “in every

recommendation or report on proposals for . . . major

Federal actions significantly affecting the quality of

the human environment.” 42 U.S.C. § 4332(2)(C). 1

This environmental impact statement (EIS) must

cover, among other things, the “reasonably

foreseeable environmental effects of the proposed

agency action” and “a reasonable range of

alternatives.” Id. § 4332(2)(C)(i), (iii). To prepare this

study, agencies must obtain public comment. See id.

§ 4336a(c); Dep’t of War, Department of War National

Congress amended NEPA in 2023.

See Fiscal

Responsibility Act of 2023, Pub. L. No. 118-5, § 321, 137 Stat. 10,

38-46. This brief cites the current version, unless differences in

the pre-2023 law applicable to the Air Force’s decision are

relevant.

Environmental Policy Act Implementing Procedures

Pts. 1.8(b), 2.1(b)-(e) (last updated Apr. 30, 2026)

(DoW NEPA Proc.), perma.cc/NSP2-KY3V.

NEPA does not require a full EIS in every instance.

An agency may adopt “categorical exclusions” for

actions that normally do not have a significant

environmental effect, and then comply with NEPA by

invoking an exclusion for a particular project. 40

C.F.R. § 1501.4 (2021); see also 42 U.S.C. §§ 4336(a)(2)

& (b)(2), 4336c. For proposed actions where the

environmental effects are not fully known, NEPA

requires agencies to prepare an environmental

assessment (EA). See 42 U.S.C. § 4336(b)(2). The

agency can then take one of two steps: prepare a

“finding of no significant impact” and end its analysis

there, or proceed to an EIS. Id.

NEPA’s procedural requirements ensure that

important environmental effects of governmental

action are not “overlooked or underestimated,” only to

be realized “after resources have been committed or

the die otherwise cast.” Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 349 (1989). In

addition, per NEPA’s various provisions directing

coordination, “[m]ost agencies use NEPA as an

‘umbrella’ statute—that is, a framework to coordinate

or demonstrate compliance with any study, review, or

consultation required by other environmental laws.”

Cong. Rsch. Serv., The National Environmental Policy

Act (NEPA) 1 (Jan. 10, 2011); see 42 U.S.C. §§ 4331(b),

4332(2)(C), 4336a(a)(2)-(3) & (b).

All “public laws of the United States” must be

interpreted consistently with NEPA “to the fullest

extent possible.” 42 U.S.C. § 4332. As amended in

2023, NEPA identifies limited circumstances when

agency action is fully exempt from the law’s

procedural requirements. An agency need not prepare

a NEPA analysis if “the proposed agency action is

excluded pursuant to . . . another provision of law,” id.

§ 4336(a)(2), or if such preparation “would clearly and

fundamentally conflict with the requirements of

another provision of law,” id. § 4336(a)(3).

2. A separate federal law, RCRA, governs public

and private management of hazardous waste. See

Pub. L. No. 94-580, 90 Stat. 2795 (1976). RCRA is

described as a “cradle to grave” statute because it

covers different phases of waste management, such as

generation, disposal, and remedial cleanup. City of

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

331 (1994). This case concerns RCRA subtitle C,

which requires facilities that treat, store, or dispose of

hazardous waste to obtain a permit from the U.S.

Environmental Protection Agency (EPA) or from a

state or territorial program administrator. 42 U.S.C.

§§ 6925-6926. Permits can last up to ten years. Id.

§ 6925(c)(3).

RCRA obligates EPA to regulate hazardous-waste

facilities “to protect human health and the

environment.” 42 U.S.C. § 6924(a). To obtain a

subtitle C permit, RCRA requires the facility to

provide information regarding the composition and

quantities of waste; the frequency or rate of storage,

treatment, or disposal; the site; and other information

EPA or the relevant permitting authority may

require. Id. §§ 6925(b), 6929. RCRA also requires

permitting authorities to include “terms and

conditions” in issued permits that are “necessary to

protect human health and the environment.”

§ 6925(c)(3).

Id.

EPA has authorized almost all States and

Territories, including Guam, to operate their own

RCRA hazardous-waste permitting programs. Under

Guam EPA’s program, a RCRA permit has a threeyear term. 22 Guam Admin. R. & Regs. § 30109(m).

If a facility submits a renewal application before a

permit term expires, the previous permit “continue[s]

in force” by operation of law “until the effective date of

a new permit.” 40 C.F.R. § 270.51(a); see 22 Guam

Admin. R. & Regs. § 30109(a), (o).

C. Procedural Background

1. For nearly forty years, the Air Force has

received RCRA permits to conduct OD at Tarague

Beach. Pet. App. 12a. Its most recent permit, issued

in 2018, had a September 3, 2021 expiration date. Id.

In early 2021, the Air Force decided to continue

those OD operations, rather than cease upon the

permitted term’s expiration. Pet. App. 12a. It

accordingly submitted a RCRA permit-renewal

application in May. Id. The 2021 application is

identical to the 2018 permit in all material respects.

Among other things, the Air Force named Tarague

Beach as the site and identified the same detonation

range. J.A. 68-69, 79-85, 90-94; C.A. S.E.R. 390, 57577, 579-81. The Air Force also specified the same

munitions for OD, including bombs, mortars,

antipersonnel and antitank mines, grenades, and

“military ordnance material (such as black powder,

white/red phosphorus, tear gas, ammunitions,

propellants, and explosive materials).” J.A. 41, 70; see

J.A. 46-49, 75-79. And the Air Force explained that it

would open-detonate the same quantity of munitions

each year, approximately 30,000 pounds. J.A. 37, 62.

Notwithstanding the environmental, cultural, and

public-health risks of conducting OD on Tarague

Beach, the Air Force made its 2021 decision to

continue to treat hazardous-waste munitions on that

site without preparing a NEPA analysis. Pet. App.

12a-13a. Nor did the Air Force invoke a NEPA

categorical exclusion.

Id. at 12a.

The 2021

application did copy and paste a cursory discussion of

technological alternatives to OB/OD from the 2018

application, stating that “the effectiveness of other

forms of treatment” is “for the most part, unknown,”

and that “most” alternative methodologies “are still

years away from being a viable alternative.” J.A. 96;

see also J.A. 54-56, 95-97, 102. The 2021 application

did not address the contrary findings in the National

Academies and EPA reports, which came out after the

2018 permitting cycle. Nor did the application

address alternative locations.

To date, Guam EPA has not approved or denied the

2021 permit-renewal application. The Air Force

accordingly has been conducting OD under its 2018

permit for nearly five additional years—longer than

the three-year term the 2021 application sought. Pet.

App. 13a; see also J.A. 116.

2. Respondent Prutehi Guåhan is a Guam-based

organization dedicated to protecting the island’s

natural and cultural resources and the well-being of

its people. J.A. 4-5. Respondent’s members include

residents who own land near Tarague Beach, who

recreate on the beach, and who regularly use the

traditional fishing sites offshore. J.A. 6-7; see also D.

Ct. Doc. 56-1, at ¶¶ 5, 13 (Oct. 25, 2025) (Flores Decl.).

Respondent’s members also include families of the

indigenous CHamoru owners of seized land alongside

the OD detonation range and elsewhere on Guam’s

northern coast. J.A. 6; Flores Decl. ¶¶ 5-6. These

members fear that OD operations will permanently

contaminate their ancestral lands and prevent the

lands’ return to indigenous families. J.A. 6; Flores

Decl. ¶ 6.

Respondent sued under the APA, 5 U.S.C. § 704, to

challenge the Air Force’s failure to comply with NEPA

before deciding to conduct OD on Tarague Beach for

an additional period. The district court granted

petitioners’ motion to dismiss, finding that there was

no final agency action. Pet. App. 81a. The court also

held that respondent failed to state a claim because

RCRA implicitly displaces the Air Force’s obligation to

prepare any NEPA analysis. Id. at 89a.

3. The court of appeals reversed and remanded.

Pet. App. 1a-46a.

a. The court of appeals held that RCRA does not

eliminate the Air Force’s NEPA obligations. Pet. App.

33a-46a. Relying on this Court’s holding in Flint

Ridge Development Co. v. Scenic Rivers Association of

Oklahoma, 426 U.S. 776 (1976), the court of appeals

first reasoned that another statute may displace

NEPA if there is “an irreconcilable and fundamental

statutory conflict” between the two. Pet. App. 34a.

But the court found no conflict at all between NEPA’s

and RCRA’s provisions. Id.

Applying circuit precedent, the court also reasoned

that a law may supplant NEPA if the two statutes’

environmental-review requirements are “ ‘sufficiently

similar’ ” such that “the overlap renders NEPA

superfluous,” or “ ‘sufficiently different’ ” such that

“the divergence reflects Congress’s intent to replace

NEPA[].” Pet. App. 35a-36a (citation omitted). 2 But

the court determined that RCRA permitting is not the

functional equivalent of NEPA because “the timing of

each statute’s prescribed environmental review is

entirely distinct.” Id. at 37a. And “nothing in RCRA’s

language or structure suggests that applying the

statute alongside NEPA would sabotage” the

permitting process. Id. at 43a (internal quotation

marks and citation omitted). As the court explained,

“[i]f anything, applying NEPA to an agency’s

antecedent decision to dispose of hazardous waste

furthers, rather than detracts from, RCRA’s statutory

purpose.” Id. at 46a.

b. The court of appeals also determined that the

Air Force’s decision to continue OD on Tarague Beach,

“as evidenced by the content of its RCRA permit

renewal application,” is reviewable final agency

action. Pet. App. 20a; see id. at 20a-32a. With respect

to the first prong of this Court’s test in Bennett v.

Spear, 520 U.S. 154 (1997)—whether the agency had

completed its decisionmaking—the court of appeals

explained that the Air Force’s application reflected its

Pet. App. 22a (citation

“ ‘definitive position.’ ”

omitted). The court observed that the Air Force “has

not suggested it is still in the middle of trying to figure

out its position on OB/OD operations at Tarague

Beach, or that the plan memorialized in its

At petitioners’ urging, the court of appeals declined to

consider NEPA’s 2023 amendments. Pet. App. 5a n.3.

application was tentative from the agency’s

perspective.” Id. at 23a (internal quotation marks,

brackets, and citation omitted).

With respect to Bennett’s second prong—whether

the agency’s decision is one from which “legal

consequences will flow,” 520 U.S. at 178 (citation

omitted)—the court of appeals concluded that the Air

Force’s decision to conduct OD operations on Tarague

for another period “commit[ted] the Air Force to a

particular course of action.” Pet. App. 31a (citation

omitted). The court also found that the Air Force’s

renewal application had the “legal consequence of

prolonging the life of its 2018 permit” by virtue of the

extension regulation. Id. at 31a n.9.

c. Judge VanDyke dissented from the finalagency-action holding, while expressing no view on

NEPA displacement. Pet. App. 47a & n.1.

SUMMARY OF ARGUMENT

I. The Air Force has a clear statutory duty to

prepare a NEPA analysis before deciding whether to

conduct OD operations on Tarague Beach. RCRA does

not displace that duty. In NEPA’s text, Congress

directed that the law’s environmental-study mandate

gives way to another statute in only two

circumstances: when that other statute says so, or

when that statute’s requirements “clearly and

fundamentally conflict” with NEPA’s. 42 U.S.C.

§ 4336(a)(2)-(3).

The first circumstance tracks

Congress’s drafting practices in this area, and the

second codifies this Court’s holding in Flint Ridge

Development Co. v. Scenic Rivers Association of

Oklahoma, 426 U.S. 776 (1976).

Neither circumstance exists here. Over the past

fifty years, Congress has expressly excluded from

NEPA some agency actions taken under other

environmental laws. But Congress has never enacted

such an exclusion for RCRA. And consolidating early

NEPA review with the analysis necessary for the

RCRA-permitting process does not pose a conflict of

any kind, let alone a clear and fundamental one. To

the contrary, the two processes are complementary,

consistent with NEPA’s design.

Petitioners instead ask this Court to create a third

route for NEPA displacement.

According to

petitioners, NEPA should also give way when a court

decides that another environmental statute requires

the “functional equivalent” of NEPA’s impactstatement process. But in addition to contravening

NEPA’s text, petitioners’ addendum flouts the “strong

presumption” against the implied repeal of statutes,

which requires Congress to speak clearly when it

wishes to overtake existing law. Epic Sys. Corp. v.

Lewis, 584 U.S. 497, 510 (2018) (brackets and citation

omitted). Petitioners cannot carry their burden to

show such a clear statement merely by intoning that

the “specific governs the general”—an interpretive

principle that likewise requires an actual conflict

between statutes. Nor can they seek refuge in lowercourt cases applying functional-equivalence tests, as

those decisions have no better answer to NEPA’s text

and never applied such an exception to an agency, like

the Air Force here, that is not itself a regulator.

Even if the Court were to employ some kind of

functional-equivalence standard, NEPA remains

binding on the Air Force. The RCRA permitting

process does not fulfill NEPA’s hard-look

requirement, which imposes procedures at a different

time and mandates evaluation of different

considerations—including, here, alternative locations

for OD.

II. The Air Force thus had an obligation to comply

with NEPA before deciding to continue OD operations

at Tarague Beach in 2021. And that obligation is

enforceable under the APA. The Air Force’s decision,

memorialized in its permit-renewal application, more

than satisfies this Court’s requirements for finality.

See Bennett v. Spear, 520 U.S. 154, 177-78 (1997).

First, the Air Force has made up its mind to

continue OD at Tarague Beach beyond 2021. There is

nothing suggesting that the Air Force’s decision was

tentative or still under review within the agency.

Indeed, the Air Force has implemented its decision on

the ground by actually engaging in OD operations on

Tarague to this day.

The prospect that Guam EPA may deny a new

RCRA permit does not mean that the Air Force’s

decision to proceed is provisional. This Court has

been clear that the “mere possibility” an agency might

change its mind in response to external process or

further engagement “does not suffice to make an

otherwise final agency action nonfinal.” Sackett v.

EPA, 566 U.S. 120, 127 (2012).

Petitioners

nonetheless argue that, as a matter of law, an agency

cannot conclude its own decisionmaking when

external authorization is required. But this Court’s

decision in Biden v. Texas, 597 U.S. 785, 809 n.7

(2022)—which deemed an agency decision final even

though its implementation required judicial

authorization—proves them wrong. And petitioners’

theory would mean that there can never be final

agency action whenever one aspect of an overall

federal project requires external approval or some

lingering contingency remains. That is not the law.

Second, the Air Force’s decision to continue OD

operations at Tarague beyond 2021 carried concrete

legal consequences. Most obviously, the Air Force’s

submission of its permit-renewal application had the

real-world effect of extending the prior permit’s

term—authorizing the Air Force to carry out OD

operations for an additional five years and counting.

Petitioners concede that this extension was an

immediate legal effect. And per the plain text of the

relevant regulation, the renewal application was a

necessary trigger. Petitioners assert that there is a

mismatch between this legal consequence and

respondent’s NEPA challenge.

But respondent’s

claim is that petitioners failed to comply with NEPA

before deciding to conduct OD operations past

September 2021. And petitioners acknowledge that

the 2018 permit and the 2021 application are identical

in all material respects, so the Air Force’s operations

during the extension period are no different from the

operations for which it seeks a new permit.

Alternatively, this Court can find that legal

consequences “will flow” from the application,

Bennett, 520 U.S. at 178 (citation omitted), because

the Air Force’s commitments in that application will

bind the Air Force when approved. Once again, the

fact that a condition must fall into place before those

plans will be operative does not preclude a finality

finding under this Court’s precedent.

ARGUMENT

RCRA Does Not Displace NEPA’s Mandate To

Examine Environmental Impacts Before

Deciding To Conduct Open-Detonation

Operations

Under every standard tool of statutory

interpretation—text, context, canons of construction,

and precedent—the answer is the same: NEPA

applies to the Air Force’s action here.

A. Congress

Directed

That

NEPA’s

Requirements Give Way To Another

Statute In Specific Circumstances

Absent Here

NEPA’s environmental-study requirement applies

to “every recommendation or report” on all proposed

“major Federal actions.” 42 U.S.C. § 4332(2)(C). That

mandate applies to “all agencies of the Federal

Government.” Id. § 4332(2). And Congress further

“authorize[d] and direct[ed]” that, “to the fullest extent

possible,” agencies and courts “interpret[]” and

“administer[]” the “policies, regulations, and public

laws of the United States” in accordance with NEPA.

Id. § 4332(1) (emphasis added).

That fullest-extent-possible command is “neither

accidental nor hyperbolic.” Flint Ridge Dev. Co. v.

Scenic Rivers Ass’n of Okla., 426 U.S. 776, 787 (1976).

It is meant to force a hard look at environmental

factors—including those relevant to other applicable

laws—at the earliest possible stage. It also requires

early public input. All to ensure that concerns are

aired when they might make a difference—that is,

before “resources have been committed or the die

otherwise cast.” Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 349 (1989).

Congress has specified that another law can

displace NEPA’s broad command in only two

situations.

An agency need not “prepare an

environmental document with respect to a proposed

agency action” if the action is (1) “excluded” from

NEPA under “another provision of law”; or if

(2) preparing the NEPA document “would clearly and

fundamentally conflict with the requirements of

another provision of law.” 42 U.S.C. § 4336(a)(2)-(3)

(emphasis added); see also id. § 4332(2)(C) (requiring

compliance except where it “would be inconsistent

with other statutory requirements”). 3 Neither of those

textual exemptions covers a proposed action for which

the federal agency will need to seek a RCRA permit.

1. Congress has expressly excluded many other

agency actions from NEPA’s environmental-study

requirement. For instance, Congress has completely

excluded actions taken under the Clean Air Act. 15

Although

Congress

codified

this

displacement

framework in 2023, it reflects longstanding congressional

practice and this Court’s precedent. See infra at 19-21.

Petitioners told the court of appeals that the 2023 NEPA

amendments could not be considered in this pre-2023 case. C.A.

Doc. No. 35, at 1-2 (Sept. 19, 2023). Petitioners appear to have

reconsidered, stating that the amendments “reinforce[] the basic

principles that NEPA, correctly interpreted, already embodied.”

Pet. Br. 9 (quoting Seven Cnty. Infrastructure Coal. v. Eagle

Cnty., 605 U.S. 168, 181 n.3 (2025)); see also Cert. Reply 6 n.2. If

this Court nevertheless believes that the 2023 amendments

cannot be considered, it should dismiss the petition as

improvidently granted, as a decision could not conclusively

resolve the relationship between NEPA and other statutes going

forward. See Br. in Opp. 34-35.

U.S.C. § 793(c)(1). It has largely excluded actions

EPA takes under the Clean Water Act, with some

carve-outs. 33 U.S.C. § 1371(c)(1). It has excluded

limited actions under the Endangered Species Act. 16

U.S.C. § 1536(k). And it has excluded specified

actions under several other statutes dealing with

environmental concerns, like the Nuclear Waste

Policy Act, the Powerplant and Industrial Fuel Use

Act, and the Surface Mining Control and Reclamation

Act. 42 U.S.C. § 10141(c); 42 U.S.C. § 8473; 30 U.S.C.

§§ 1251(a), 1292(d).

Indeed, Congress has enacted full or partial

exclusions for specific categories of actions or projects

numerous times over NEPA’s 50-year history—

including in the same 2023 legislative session where

Congress amended NEPA. 4 As these provisions

demonstrate, “when Congress intended” to displace

NEPA in other statutory contexts, “ it knew how to do

so.” Thompson v. United States, 604 U.S. 408, 416

(2025) (internal quotation marks and citation

omitted).

Yet Congress has not excluded agency actions that

require a RCRA permit. That is not for lack of

opportunity. When Congress enacted RCRA in 1976,

NEPA had been on the books for six years. During

that period, Congress articulated express NEPA

See Pub. L. No. 118-105, § 2(1)-(2), 138 Stat. 1587, 158789 (2023) (codified at 15 U.S.C. §§ 4652(h), 4659(d)); see also, e.g.,

10 U.S.C. § 2667(g)(4); 15 U.S.C. § 793(c)(2); 16 U.S.C. § 544o(f);

30 U.S.C. § 1419(d); 42 U.S.C. § 5159; 45 U.S.C. § 791(c); Pub. L.

No. 113-223, § 8(b), 128 Stat. 2096, 2109 (2014); Pub. L. No. 11366, § 2966(c), 127 Stat. 672, 1043 (2014); Pub. L. No. 96-305, § 11,

94 Stat. 929, 933 (1980); Pub. L. No. 94-207, § 2(b), 90 Stat. 28,

28 (1976).

exclusions elsewhere. See, e.g., Pub. L. No. 92-500, 86

Stat. 816, 893 (1972) (Clean Water Act exclusion).

Even in a RCRA provision instructing EPA to “avoid

duplication” with specified statutes “to the extent

[integration] can be done in a manner consistent with

the goals and policies of ” those statutes, Congress

omitted any mention of NEPA. 42 U.S.C. § 6905(b)(1).

Further, Congress amended RCRA in 1992 to

specifically clarify the law’s application to federal

facilities in various ways. See Pub. L. No. 102-386,

106 Stat. 1505. Had Congress wanted to relieve

federal RCRA permittees of NEPA obligations, that

would have been the natural time to do so.

2. Nor is there a “clear[] and fundamental[]

conflict” between NEPA’s environmental-study

requirement and RCRA’s permit requirement. 42

U.S.C. § 4336(a)(3).

This standard—requiring not just a conflict, but an

undeniable and significant one—imposes a high bar.

It comes from this Court’s decision in Flint Ridge.

There, the Court interpreted Congress’s direction that

NEPA apply “ ‘to the fullest extent possible’ ” as a

“deliberate command” to agencies to fulfill NEPA’s

requirements while carrying out other laws. 426 U.S.

at 787 (quoting 42 U.S.C. § 4332). As the Court

explained, this language was meant to ensure that

agencies’ duty to consider environmental factors at

the outset “not be shunted aside in the bureaucratic

shuffle.” Id.; see id. at 787-88.

Only if it is “inconceivable” that an agency could

fulfill both NEPA and another law does NEPA “give

way.” Flint Ridge, 426 U.S. at 788; see also id. (“clear

and unavoidable conflict”). Flint Ridge presented

such an “irreconcilable and fundamental conflict”

because the other law in question required a timeline

for action that made it impossible to complete the

NEPA process. Id. at 788-89.

There is no such conflict here, see Pet. App. 34a35a, and petitioners have never claimed otherwise.

For good reason. Requiring an agency to complete a

NEPA analysis before deciding whether to conduct

waste-treatment operations in no way conflicts—let

alone clearly or fundamentally—with the RCRApermitting process.

To the contrary, NEPA’s requirements complement

RCRA. Pet. App. 45a-46a. In the Army’s words:

“NEPA saves time and money: If done early, [it]

reduces uncertainties and facilitates compliance with

other environmental laws.” Army NEPA Overview 1.

If an agency decides to seek a RCRA permit for

operations it has evaluated under NEPA, information

developed in the NEPA analysis can support the

permit application and inform the permitting

authority’s decision. That, indeed, is one of NEPA’

strengths: to “help[] agencies identify and plan for

compliance with other environmental requirements.”

Id. at 2; see also 85 Fed. Reg. 43304, 43308 n.27 (July

16, 2020) (describing this “longstanding agency

practice” of integrating environmental review under

other laws in the “NEPA document”).

B. Petitioners’ “Functional Equivalence”

Test Flouts Basic Rules Of Statutory

Interpretation

Without contesting either of those points,

petitioners invite the Court to create a third route for

NEPA’s displacement.

According to petitioners,

NEPA also gives way when a court decides that

another environmental statute is NEPA’s “functional

equivalent.” Pet. Br. 20. That standard finds no

support in NEPA’s or RCRA’s text or other

permissible tools of statutory interpretation.

1. Petitioners’ proposal violates the canon against

implied repeals. It is a cardinal rule of statutory

interpretation that, “[w]hen confronted with two Acts

of Congress allegedly touching on the same topic,”

courts are “not at ‘liberty to pick and choose among

congressional enactments’ ” and must strive “ ‘to give

effect to both.’ ” Epic Sys. Corp. v. Lewis, 584 U.S. 497,

510 (2018) (citation omitted). Thus, courts “will not

infer a statutory repeal” unless the legislature’s

intention is “ ‘clear and manifest.’ ” National Ass’n of

Home Builders v. Defenders of Wildlife (NAHB), 551

U.S. 644, 662 (2007) (citation omitted).

That clear manifestation is present only where the

later statute (1) “expressly contradicts the original

act,” or (2) such a construction “is absolutely

necessary in order that the words of the later statute

shall have any meaning at all.” NAHB, 551 U.S. at

662 (ellipses and brackets omitted); see also Epic, 584

U.S. at 510 (under the “ ‘strong presumption’ ” against

implied repeals, Congress must make its intent “ ‘clear

and manifest’ ” through a “conflict” (brackets and

citations omitted)). In other words, a later-enacted

statute may displace another only in the two scenarios

that Congress has now written into NEPA.

Petitioners nonetheless argue that they can satisfy

the rule against implied repeals by invoking the

principle that “the specific governs the general.” Pet.

Br. 4. Because RCRA is more “specific” than NEPA

when it comes to hazardous-waste operations, the

theory goes, this Court should infer that Congress

clearly intended displacement.

But the specific-controls-the-general principle

cannot overcome the presumption against implied

repeals in the absence of an actual conflict. See supra

at 23. In Epic, for instance, this Court rejected the

argument that a National Labor Relations Act

provision “specific” to labor rights could knock out the

Federal Arbitration Act’s mandates in the context of a

labor dispute, because the two laws could be

harmonized. 584 U.S. at 523-24; see also id. at 51011, 525. A leading treatise is in accord: “If there is a

conflict between a general provision and a specific

provision,” then “the specific provision prevails.”

Antonin Scalia & Bryan A. Garner, Reading Law 183

(2012) (emphasis added) (Scalia & Garner).

Petitioners’ sole authority, RadLax Gateway Hotel,

LLC v. Amalgamated Bank, 566 U.S. 639 (2012)

(Br. 36), does not establish that the mere specificity of

a later-enacted statute can repeal an earlier related

law. In RadLax, the Court simply observed that while

the specific/general principle is “most frequently

applied” when “a general permission or prohibition is

contradicted by a specific prohibition or permission,”

it can also be invoked to avoid reading one (more

general) clause to permit what another (more specific)

clause proscribes. Id. at 645-46. That does not

describe the dispute here. 5

Nor does the RCRA permitting process “cover[] the whole

subject of” NEPA, such that it is “ ‘clearly intended as a

Even on its own terms, the specific-governs-thegeneral canon provides little illumination in this case.

Petitioners assume that RCRA is the hazardouswaste “specific” counterpart to NEPA’s more “general”

command across environmental contexts. But NEPA

is more specific than RCRA when it comes to the

environmental review the Air Force must undertake

before proposing its action—including the depth of

analysis, the consideration of alternatives, and the

process for coordinating with other agencies. See 42

U.S.C. §§ 4332, 4336, 4336a-4336c.

Here, as

elsewhere, assigning the two labels is not

straightforward. See, e.g., Epic, 584 U.S. at 523-24;

Scalia & Garner 187-88. Given the slipperiness of the

canon, and the judicial “restraint” this Court has

“counsel[ed]” in this area, the better course is to stick

to an “interpretation that gives effect to all of

Congress’s work.” Epic, 584 U.S. at 511, 524.

Finally, congressional practice in this area only

reinforces the strong presumption against implied

repeals. Not only does Congress have a long history

of codifying NEPA exemptions. And not only did

Congress amend NEPA to specifically address when

the law gives way to other statutes. In making those

amendments, Congress simultaneously rejected a

proposal to adopt a functional-equivalence standard.

The 2023 NEPA amendments adopted “elements of

the BUILDER Act.” 169 Cong. Rec. S1877 (daily ed.

June 1, 2023) (Sen. Capito); see Pub. L. No. 118-5,

substitute.’ ” NAHB, 551 U.S. at 663 (citation omitted). Among

other differences between the two regimes, RCRA does not

govern federal facilities’ antecedent decision whether to carry out

hazardous-waste operations in the first place. See infra at 32-36.

§ 321, 137 Stat. 38-46 (“BUILDER Act”).

introduced, that bill would have also exempted from

NEPA actions “for which such agency’s compliance

with another statute’s requirements serve the same or

similar function as the requirements of [NEPA].”

H.R. 1577, 118th Cong., § 2(b) (Mar. 14, 2023). But

Congress went a different route: It retained the

BUILDER Act’s language about express exclusions

and clear conflicts, while jettisoning the functionalequivalence language. Cf. United States v. Johnson,

529 U.S. 53, 58 (2000) (“When Congress provides

exceptions in a statute,” the “proper inference” is that

Congress “limited the statute to the ones set forth.”).

2. Petitioners’ other attempts to shore up their

functional-equivalence

standard

are

likewise

unconvincing.

a. Petitioners appeal (Br. 36-37, 42-43) to lowercourt decisions that have embraced a functionalequivalence test. But the standard those decisions

apply is not the rule petitioners advocate here. And

those decisions have no better answer to NEPA’s text

than petitioners do.

Petitioners’ cases—starting with the first in the

line, Portland Cement Association v. Ruckelshaus, 486

F.2d 375 (D.C. Cir. 1973)—stand for the proposition

that in some circumstances, environmental agencies

enforcing environmental statutes need not also

comply

with

NEPA’s

environmental-study

requirement. See id. at 381, 384-85 (deciding whether

NEPA “is applicable to environmentally protective

regulatory agencies”).

With respect to such

agencies—like EPA when it acts as the RCRA

permitting authority—those cases rest on the notion

that courts should strike a “balance between some of

the advantages and disadvantages of full application

of NEPA” when another statute imposes procedural

requirements on those agencies too. Portland Cement,

486 F.2d at 386; see also id. at 379-80 (explaining that

NEPA’s “language” can be “overrid[den]” by “purpose

and legislative history”); see also State of Alabama ex

rel. Siegelman v. U.S. EPA, 911 F.2d 499, 504-05 (11th

Cir. 1990).

But courts are not “free to pave over bumpy

statutory texts in the name of more expeditiously

advancing a policy goal.” Southwest Airlines Co. v.

Saxon, 596 U.S. 450, 463 (2022) (citation omitted).

This rule exists for particularly “good reason[]” in the

implied-repeal context: “Allowing judges to pick and

choose between statutes risks transforming them

from expounders of what the law is into policymakers

choosing what the law should be.” Epic, 584 U.S. at

511.

In any event, even as they ride on those decisions’

coattails, petitioners do not agree with their

reasoning. Despite invoking Portland Cement (Br. 42,

44), petitioners flatly contest (Br. 44-45) the D.C.

Circuit’s holding that “NEPA must be accorded full

vitality as to non-environmental agencies.” 486 F.2d

at 387. Petitioners cannot have it both ways.

b. Petitioners are equally mistaken in contending

(Br. 43-44) that “regulatory history and practice”

support a functional-equivalence standard.

i. Considerable regulatory history and practice

points toward the opposite conclusion: that agencies

have long understood their obligation to comply with

NEPA even when their actions require authorization

under another statute. For example, in 2002, the

Department of Energy (DOE) issued guidance

requiring an actual conflict between NEPA and

another environmental law—including RCRA—to

find NEPA’s displacement. See Memorandum from

Beverly Cook, Ass’t Sec’y, DOE, to Secretarial Officers

and Heads of Field Organizations, DOE Policies on

Application of NEPA to CERCLA and RCRA Cleanup

Actions 1-3 (July 11, 2002), perma.cc/Z4JG-8X4N.

Past and current NEPA regulations and guidance

reflect a similar understanding. The Council on

Environmental Quality regulations in effect during

this case contemplated that action agencies would

comply with NEPA notwithstanding a need to obtain

permits. See 40 C.F.R. § 1502.24(b) (2021) (requiring

draft EISs to “list all Federal permits, licenses, and

other authorizations that must be obtained”); id.

§ 1503.3(d)-(e)

(2021)

(referencing

permitting

agencies’ comments on action agencies’ draft EISs).

The Army’s 2020 NEPA regulations likewise directed

that the NEPA analysis “integrat[e]” environmental

review under other laws—including, notably, RCRA.

32 C.F.R. § 651.14(e)(9) (2021).

Moreover, just last year, DOD components adopted

categorical exclusions to NEPA built on the premise

that components have NEPA obligations when they

need permits or when RCRA otherwise applies. For

instance, DOD adopted a categorical exclusion for

“[c]onstruction, in accordance with applicable

permits,” of certain water crossings. DoW NEPA

Proc., App. A, § I(b)(8) (emphasis added); see also id.

§ III(37) (maintenance dredging and debris disposal

where “applicable permits are secured” (emphasis

added)). And the Air Force adopted a categorical

exclusion applicable to “[r]outine transporting of

hazardous materials and wastes in accordance with

applicable Federal . . . laws.” Id. App. A, at 45. If

petitioners’ position in this case were correct, then

their own NEPA infrastructure would be superfluous.

What their procedures suggest, agency practice

confirms. Most pertinent here, agencies—including

DOD

components—proposing

hazardous-wastemanagement activities have routinely completed

NEPA analyses for activity also covered by RCRA.

For example, before expanding OB/OD operations at

Edwards Air Force Base (and obtaining a modification

to its RCRA permit), the Air Force evaluated that

decision under NEPA. 6 Before operating a thermaltreatment facility to replace OB at the Holston Army

Ammunition Plant, the Army completed a NEPA

analysis. 7 And DOE completed a NEPA analysis

before carrying out OB/OD operations at Lawrence

Livermore National Laboratory, while also applying

for a RCRA permit. 8

ii. For their part, petitioners invoke (Br. 43) a

1980 EPA regulation stating that “RCRA . . . permits

See Cal. Env’t Prot. Agency, Draft Environmental Impact

Report/Environmental Assessment: Edwards Air Force Base

Open Burn/Open Detonation Units ES-1 to ES-2, 1-1 (Aug.

2013), perma.cc/QT4G-7B4T.

See U.S. Army Corps of Eng’rs, Final Environmental

Assessment for Installing and Operating a Thermal Treatment

Facility 1-1, 1-3 (Mar. 2020), perma.cc/9BGX-SEQZ.

See DOE, Environmental Assessment for the Explosive

Waste Treatment Facility at Site 300, at 1-2 (Nov. 1995)

(Lawrence Livermore EA), perma.cc/YNZ3-Q3QB.

are not subject to the environmental impact

statement provisions of [NEPA].”

40 C.F.R.

§ 124.9(b)(6). But this EPA regulation—which applies

only “when EPA is the permitting authority,” id.

§ 124.9 (title)—does not address the NEPA obligations

of RCRA permit applicants. It speaks only to the

procedures for “draft permit[s] prepared by EPA.” Id.

§ 124.9(a); see also id. § 124.6.

The regulation’s preamble—which states EPA’s

“position that [NEPA] does not require preparation of

an [EIS] when permits are issued under [RCRA]”—

confirms that the regulation is speaking only to EPA’s

duties as the permit-approving entity. 45 Fed. Reg.

33290, 33406 (May 19, 1980); see also 72 Fed. Reg.

53652, 53653-54 (Sept. 19, 2007) (describing the

regulation as applicable to EPA). That narrower

reading is also reflected in the regulation’s notice of

proposed rulemaking, which grounds the relevant

language in court decisions holding that “action taken

by an agency with recognized environmental

expertise . . . constitutes the functional equivalence of

NEPA’s requirements.” 44 Fed. Reg. 34244, 34247

(June 14, 1979) (emphasis added) (citing Portland

Cement).

Finally, petitioners overshoot with their

congressional-acquiescence argument (Br. 44). Even

putting aside the many indications that Congress did

not acquiesce in any non-conflict standard for

displacement, see supra at 18-22, at most, Congress

would have understood the EPA regulation to have

taken a position about whether EPA must comply

with NEPA in approving RCRA permits. There is no

basis to believe that Congress endorsed the much

broader understanding of functional equivalence that

petitioners advance now.

iii. Petitioners’ invitation to write in a RCRA

exception to NEPA would result in an indeterminate

and unworkable rule.

This is an area where “courts should strive . . . for

clarity and predictability,” and petitioners’ reading

provides none.

Seven Cnty., 605 U.S. at 192.

Petitioners themselves are not clear on would make

another statute’s requirements the functional

equivalent of NEPA’s. Is it enough that the statutes

“cover similar ground”? Pet. Br. 45. Or would RCRA

displace NEPA if it required consideration of all the

same environmental effects NEPA does? See Pet. Br.

37-38; but see infra at 36. Or is the triggering

condition instead that the two statutes impose

“somewhat different requirements”? Pet. Br. 41

(emphasis added). Or is the answer something in

between? See Pet. App. 35a-36a (evaluating whether

NEPA and RCRA are “sufficiently similar” or

“sufficiently different” (citation omitted)).

Nor do petitioners explain which RCRA regime

should be compared with NEPA. For instance, they

observe (Br. 38) that a RCRA regulation specific to

OB/OD requires consideration of safer modes of waste

treatment. See 40 C.F.R. § 265.382; 22 Guam Admin.

R. & Regs. § 30107(a). Even putting aside that

NEPA’s required alternatives analysis is broader, see

infra at 34-35, at most this might mean the two

analyses more closely converge in the specific factual

context of OB/OD. Should the functional-equivalence

inquiry take place on such a context-specific basis,

rather than a statutory one?

In addition, RCRA reserves considerable power to

States (and Territories) to adopt their own regulations

and impose requirements “more stringent” than those

in EPA regulations. 42 U.S.C. §§ 6926(b), 6929. If a

state or territorial hazardous-waste program requires

consideration of a broader set of environmental effects

or alternatives, could an action agency’s NEPA

obligation be displaced in some places but not others?

Unlike the clear carveouts in 42 U.S.C.

§ 4336(a)(2)-(3), neither NEPA’s nor RCRA’s text

would answer these questions. And such problems

abound when a test for redlining two statutory

schemes turns on the editor’s subjective—and

potentially policy-laden—views of “what Congress

really wanted.” Axon Enterprise, Inc. v. FTC, 598 U.S.

175, 205 (2023) (Gorsuch, J., concurring in the

judgment).

C. RCRA’s Permitting Requirements Are

Not The Functional Equivalent Of NEPA

Obligations

Even if this Court were to adopt a version of

petitioners’

standard,

RCRA’s

permitting

requirements are not the functional equivalent of

NEPA’s command that the Air Force take a hard look

before it leaps.

1. To begin with, the timing of the environmental

analyses prescribed by each statute is “entirely

distinct.” Pet. App. 37a. NEPA requires action

agencies like the Air Force to prepare an

environmental study—and to engage with the

public—before those agencies decide to undertake an

activity that may have significant environmental

impact and (as here) apply for a permit. Id. That is

to assure “that environmental concerns be integrated

into the very process of agency decision-making” and

considered “during the planning stage.” Andrus v.

Sierra Club, 442 U.S. 347, 350 (1979).

RCRA, by contrast, does not mandate a

“determination” of environmental impacts until the

point of the permitting agency’s decision on an

application. 42 U.S.C. § 6925(c)(1); see Pet. App. 38a.

RCRA says nothing about what facilities must

evaluate before deciding to treat hazardous waste

using a particular method at a particular site. See 42

U.S.C. § 6925(b). As a practical matter, a facility

needs to undertake the environmental analysis

necessary to support a permit application and

facilitate the permitting authority’s determination.

But RCRA does not require facilities to do so before

deciding whether to submit the application in the first

place. In other words, RCRA only compels the facility

to provide the environmental analysis necessary to

justify the decision it already made and to aid

someone else’s decision.

Petitioners note (Br. 7, 14) that Guam EPA offers

the opportunity for public comment on its permitapproval decisions. But that is no substitute for the

Air Force obtaining public input before it makes up its

mind about how (OD) and where (Tarague Beach) to

treat hazardous-waste explosives. The Air Force has

no obligation to consider or respond to comments

Guam EPA receives. And had there been public

engagement before the Air Force submitted its

application, Guam residents and other stakeholders

could have tried to convince the Air Force to change

course—including by selecting an off-island site that

would have obviated the need for Guam EPA’s

involvement. As a DOD component has explained,

“[s]ome of the most constructive and beneficial

interaction between the public and an agency occurs

when citizens identify or develop reasonable

alternatives that the agency can evaluate.” U.S. Army

Corps of Eng’rs, Scoping Report 1 (Aug. 2008),

perma.cc/K7FW-68EW.

Indeed, a recent study found that public comments

during NEPA review substantively altered agency

decisions 62% of the time. Ashley Stava et al.,

Quantifying the Substantive Influence of Comment on

United States Federal Environmental Decisions under

NEPA, 20 Env’t Rsch. Letters, 2025, at 1. And even if

it does not change the outcome, public engagement at

the outset “can increase citizen’s trust in decisionmaking, leading to strengthened support for policy

and decision-making outcomes.” Id.

2. NEPA also requires evaluation of a broader set

of alternatives than RCRA. Pet. App. 39a. One of

NEPA’s touchstones is agencies’ obligation to weigh

proposed actions against a feasible “range of

alternatives” as they choose their course. 42 U.S.C.

§ 4332(2)(C)(iii) & (2)(F). The RCRA permitting

process for hazardous-waste treatment, meanwhile,

does not typically require facilities seeking authority

for one course of action to develop and present

information on alternative plans. See id. § 6925(b).

So when applying for a permit for one OD site—say, a

beach on Guam—the facility faces no obligation to

consider whether other OD sites—say, an off-island

military base not sitting atop Guam’s main aquifer

and an archeological site—might pose less risk.

Indeed, to respondent’s knowledge, petitioners have

never evaluated non-Tarague sites for OB/OD in their

prior RCRA applications.

Petitioners mistakenly suggest (Br. 38) that RCRA

folds in the equivalent of NEPA’s alternatives

analysis by requiring the permitting agency’s

“[r]eview” of renewal applications to “consider

improvements in the state of control and

measurement technology.” 42 U.S.C. § 6925(c)(3).

That provision requires consideration of certain

technologies. It would not require (for instance)

evaluation of alternative sites for OD. The same goes

for EPA’s RCRA regulation governing OB/OD in

particular, which requires evaluation of alternative

modes of treatment, not alternative OB/OD sites. See

supra at 31.

Petitioners also hypothesize (Br. 42) that Congress

“might well” have thought that a NEPA alternatives

analysis is inappropriate in the hazardous-waste

context because munitions are “potentially deadly.”

To be clear, no NEPA review or RCRA permit is

needed to treat unexploded munitions that pose an

immediate risk to safety or property. See 40 C.F.R.

§§ 266.204, 270.1(c)(3)(i)(D); DoW NEPA Proc. Pt.

3.12(b). And there are viable alternative actions in

the hazardous-waste context generally. As noted,

here, the Air Force could have evaluated whether to

conduct OD somewhere in the continental United

States. Or it could have evaluated whether to store

munitions for longer periods of time, including until

better treatment methods are available. See, e.g., 65

Fed. Reg. 20140, 20140 (Apr. 14, 2000) (Army NEPA

document evaluating continued storage of munitions

and chemical agents as an alternative); Lawrence

Livermore EA 3 (considering offsite shipment of waste

as an alternative).

3. In addition, NEPA requires evaluation of a

broader range of harms. Consistent with Congress’s

mandate to “preserve important historic, cultural, and

natural aspects of our national heritage,” 42 U.S.C.

§ 4331(b)(4), NEPA obligates agencies to evaluate

effects on the quality of the “human environment,” id.

§ 4332(2)(C). That term has long been understood to

encompass “cultural,” “aesthetic,” “economic,” and

“social” effects, among others.

40 C.F.R.

§ 1508.1(g)(4), (m) (2021); see also 43 Fed. Reg. 55978,

55988, 56004 (Nov. 29, 1978); DoW NEPA Proc. Pt.

6.1(f)(1). By contrast, RCRA’s text—and EPA’s and

Guam EPA’s implementing regulations—do not

require the Air Force or Guam EPA to weigh, for

example, the fact that active OD operations on

Tarague prevent access to culturally significant

fishing sites. See J.A. 6-7; see also J.A. 68-69, 79.

D. NEPA Compliance Strengthens Agency

Planning

Petitioners are also wrong to suggest that applying

NEPA according to its text “paralyze[s]” agency action

requiring permits. Pet. Br. 46 (citation omitted).

NEPA’s procedures are specifically designed to

streamline environmental analysis required under

multiple laws in a way that guides agency planning.

See supra at 22. For instance, the NEPA regulations

applicable to this case told agencies to “prepare draft

[EISs] concurrent and integrated with environmental

impact analyses and related surveys and studies

required by all other Federal environmental review

laws.” 40 C.F.R. § 1502.24(a) (2021); see also id.

§ 1501.9(f)(4) (2021) (instructing agencies to integrate

“other environmental review” and “authorization”

requirements in the NEPA analysis).

DOD’s current procedures likewise instruct

components

prepare

NEPA

documents

“concurrently with and integrated with analyses and

related surveys and studies required by other Federal

statutes.” DoW NEPA Proc. Pt. 3.8(a); see id. at Pt.

3.8(b).

Such integration enables the agency to

complete all its required analyses at once, in a way

that will inform its “go/no-go” decision while

supporting the record for permit applications. 40

C.F.R. § 1502.5 (2021); see also, e.g., DOE, Argonne

Nat’l Lab., Technology Resource Document for the

Assembled

Chemical

Weapons

Assessment

Environmental Impact Statement 26, 49, 73, 95 (May

2001), perma.cc/SXJ6-2HQ2 (studies relevant to

alternative weapons-destruction technologies were

used to “support” both “the [NEPA] EIS and [RCRA]

permit application”).

In addition, there are multiple ways for agencies to

rest on prior NEPA analyses in subsequent

permitting cycles without reinventing the wheel.

They can rely on “programmatic” environmental

documents for actions with relevant similarities or

those occurring in a particular location. See 42 U.S.C.

§ 4336b; DoW NEPA Proc. Pt. 3.1; see also id. Pt.

1.8(e). Or if the agency prepared a NEPA analysis for

the last permit cycle and nothing material has

changed since, it can incorporate the prior analysis by

reference. E.g., DoW NEPA Proc. Pt. 3.2.

Moreover, agencies can adopt categorical

exclusions for actions that “normally do[] not

significantly affect the quality of the human

environment.” 42 U.S.C. § 4336e(1); see also id.

§§ 4336(a)(2), 4336c. Indeed, agencies may be able to

exclude categorically some actions that are done in

compliance with other environmental laws, as DOD

has done with respect to routine hazardous-waste

transport. See DoW NEPA Proc., App. A, at 45.

As evidenced by the fact that agencies have been

doing this for decades, see supra at 27-29, 36-37, there

is no sound basis to believe that continued NEPA

compliance will gum up the permit-renewal process.

Instead, the law will serve the basic purpose Congress

intended: to “help[] agencies to make better decisions

and to ensure good project management.” Seven

Cnty., 605 U.S. at 177.

II. The Air Force’s Decision To Conduct OpenDetonation Operations On Tarague Beach Is

Final Agency Action

Because “Congress intends [the Air Force] to obey

[NEPA’s] commands,” it likewise “expects the courts

to grant relief ” when those commands are violated.

Bowen v. Michigan Acad. of Family Physicians, 476

U.S. 667, 681 (1986). The court of appeals correctly

found that such relief is available to respondent in an

APA suit.

The APA provides for judicial review of “final

agency action for which there is no other adequate

remedy in a court.” 5 U.S.C. § 704. Petitioners do not

dispute that the Air Force’s decision to continue OD

operations at Tarague Beach constitutes agency

action. See 5 U.S.C. § 551(4) & (13); Pet. App. 20a21a. Petitioners contest only whether that decision is

“final” within the meaning of the APA. The answer is

yes.

The Court has distilled its finality precedents into

a two-prong test. “[F]irst, the action must mark the

‘consummation’ of the agency’s decisionmaking

process.” Bennett v. Spear, 520 U.S. 154, 177-78

(1997) (citation omitted). “[S]econd, the action must

be one by which ‘rights or obligations have been

determined,’ or from which ‘legal consequences will

flow.’ ” Id. at 178 (citation omitted). Both prongs are

satisfied here. And petitioners’ argument to the

contrary is yet another attempt to insulate important

agency decisions from timely judicial review. This

Court has turned away such arguments in the past,

and it should do so again here.

A. The Air Force’s Permit Application

Consummated Its Decisionmaking

1. When the expiration date of the Air Force’s

most recent RCRA permit drew near, it had to make

a decision: continue OD operations at the Tarague

Beach range past September 2021, or cease. The Air

Force decided to continue. As it had done many times

before, it submitted a permit-renewal application

essentially replicating its previous permit. Pet. App.

22a. And while it awaited Guam EPA’s decision on

the new permit, the Air Force proceeded to conduct

those same operations, under those same terms, for

years. There is no question that the Air Force reached

the culmination of its internal decisionmaking on

whether to conduct OD on Tarague Beach.

The Air Force’s 2021 application includes

numerous indicia that the agency had reached a final

decision about whether to continue these operations.

It specified a particular site for OD on an existing

detonation range. J.A. 58, 68-69, 79-85, 102-03. It

provided detailed procedures. E.g., J.A. 102-04, 10508. It stated what it would detonate and in what

permissible amounts. J.A. 62, 75-79, 108; C.A. S.E.R.

108. And the application is signed by an Air Force

official who “certif[ied]” that the document contained

true, accurate, and complete information. C.A. S.E.R.

8. The document is thus “definitive,” not “informal.”

Abbott Labs. v. Gardner, 387 U.S. 136, 151 (1967).

Moreover, there is nothing suggesting that the Air

Force is still debating whether to continue OD at

Tarague Beach or that “the plan memorialized in its

application was tentative from the agency’s

perspective.” Pet. App. 23a. To the contrary, the Air

Force has been acting on that decision for nearly five

years by exercising its authority under the extended

2018 permit. See supra at 11. The Air Force’s “own

behavior thus belies the claim that its [decision] is not

final.” Whitman v. American Trucking Ass’ns, 531

U.S. 457, 479 (2001).

True, Guam EPA has not yet issued a new threeyear permit. But the first Bennett prong asks whether

the action represents the culmination of “the agency’s

decisionmaking process”—meaning, the agency whose

action the plaintiff challenges. 520 U.S. at 178

(emphasis added). The possibility that Guam EPA

may deny the permit does not render provisional the

Air Force’s decision to proceed. That is like saying

that a homeowner submitting detailed architectural

plans to a historic-preservation board has not decided

whether she wants to renovate. Or like claiming that

a President’s nomination of a cabinet secretary does

not mean that he has made his final selection, simply

because the Senate still needs to confirm the nominee.

The same goes for the possibility that the Air Force

might withdraw its permit-renewal request, either on

its own initiative or at Guam EPA’s behest. This

Court has repeatedly rejected the government’s

contentions that the “mere possibility” an agency

might reconsider in response to further engagement

or external processes “suffice[s] to make an otherwise

final agency action nonfinal.” Sackett v. EPA, 566

U.S. 120, 127 (2012). Sackett, for instance, concerned

EPA’s issuance of an order stating the agency’s view

that property was subject to the Clean Water Act and

that the recipient had violated the Act. Id. at 122.

This Court deemed it immaterial that EPA’s order

explicitly “invited” the recipient to discuss the

findings with EPA and inform the agency of

inaccuracies.

Id. at 127.

Because agency

reconsideration was not guaranteed, EPA’s findings

were final for APA purposes. See id.

Similarly, in United States Army Corps of

Engineers v. Hawkes, 578 U.S. 590 (2016), this Court

found that the Corps had completed its

decisionmaking process in issuing a jurisdictional

determination under the Clean Water Act stating the

Corps’ view about whether property contained waters

of the United States. Id. at 593. That the Corps could

“revise” the determination within a five-year period

“based on ‘new information’ ” did not defeat a finding

that the agency’s decisionmaking had ended. Id. at

598 (citation omitted). The “possibility” of revision,

this Court again explained, “is a common

characteristic of agency action, and does not make an

otherwise definitive decision nonfinal.” Id.

Biden v. Texas, 597 U.S. 785 (2022), illustrates the

same principle in a context where third-party

authorization was required.

There, this Court

deemed final the Secretary of Homeland Security’s

memoranda directing the termination of certain

migrant protocols—even though, at the time the

memoranda issued, the Department of Homeland

Security (DHS) was subject to a district-court

injunction prohibiting the protocols’ termination. Id.

at 809 n.7; see also id. at 796. Even though the

Secretary’s unimplemented decision could conceivably

be altered—or completely barred—as judicial

proceedings unfolded, the Court found that the

agency’s decisionmaking had concluded. Id. at 809

n.7.

So too here. The Air Force’s deliberations about

whether to continue OD operations on Tarague have

ended. The first Bennett prong requires nothing more.

2. Petitioners’ contrary arguments lack merit.

Petitioners first assert (Br. 22) that the Air Force’s

RCRA application “marked the beginning, not the

end, of the process by which Guam EPA will decide

whether the permit should be renewed.”

But

respondent is not challenging Guam EPA’s decision on

the new permit. Respondent challenges the Air

Force’s decision to conduct OD operations on Tarague

Beach beyond September 2021.

Nothing suggests that the Air Force’s deliberations

over that decision were not “at an end” when it

submitted the renewal application. Sackett, 566 U.S.

at 129. Petitioners do not represent that the Air Force

has ever withdrawn an application for OD after its

submission. Nor do petitioners claim that the Air

Force has ever changed its mind about OD operations

at Andersen AFB once external approval was secured,

or that the Air Force might reconsider now. And a

claim of lingering ambivalence would be especially

strained in this case, given that the Air Force has been

actually implementing its decision to carry out post2021 OD operations at Tarague for nearly five years.

Petitioners nonetheless argue (Br. 23-26) that the

application context necessarily renders the Air Force’s

decision provisional as a matter of law. In Sackett and

Hawkes, petitioners argue, those wishing to reverse

the agency’s decision had no way to compel that

change. Here, Guam EPA could force the Air Force to

abandon its chosen plan.

But Guam EPA cannot retroactively change the

Air Force’s mind. And Biden v. Texas forecloses the

argument that it was legally impossible for the Air

Force to conclude its deliberations insofar as Guam

EPA’s approval is required. There was no question in

Biden that when the DHS Secretary directed the

future termination of the relevant policy, the agency

was legally barred from acting on that direction. Yet

it was sufficient that the agency had reached a

decision about how it planned to proceed once the

necessary condition fell into place.

Precedent aside, petitioners’ theory—that an

agency decision cannot be final under the APA unless

all prerequisites for its implementation have been

resolved—plainly cannot be right. Many federal

agency actions constitute just one piece of a larger

overall project requiring action from multiple other

decisionmakers (like other federal, state, and local

authorities). See, e.g., 42 U.S.C. § 4332(2)(C) (hanging

paragraph). If any uncertainty about one of those

pieces rendered every other decision contingent and

thus non-final, there could be no judicial review until

every relevant process had fully run its course. That

is not the law.

B. Legal Consequences Flowed From The

Permit Application

The Air Force’s decision to conduct OD operations

at Tarague Beach past September 2021 also satisfied

Bennett’s second prong, on either of two grounds.

1. a. The Air Force’s submission of the 2021

application had the concrete legal effect of extending

the 2018 permit’s term. Pet. App. 31a n.9.

Because the Air Force “submitted a timely

application . . . for a new permit,” the “conditions of

[the] expired permit continue[d] in force . . . until the

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

(emphasis added). The application itself thus granted

the Air Force legal authority that it would otherwise

have lost. And there is no dispute that the Air Force

has actually exercised that authority. See Pet. App.

31a; J.A. 116. Put differently, because it formed and

implemented the decision to continue operations past

their scheduled expiration date, the Air Force has

enjoyed the legal right to destroy munitions on

Tarague Beach for nearly five years and counting—

much longer that the three-year permit term it

applied for.

b. Petitioners acknowledge (Br. 19) that this

considerable extension of OD authority qualifies as an

“immediate legal effect.” Yet they elsewhere insist

(Br. 29) that it “does not constitute the sort of direct

and appreciable legal consequence that characterizes

final agency action.” That assertion is difficult to

understand. Had the Air Force not submitted the

renewal application, it could not lawfully conduct OD

operations at the Tarague Beach range past

September 3, 2021. Because the Air Force submitted

the application, it can and has kept those operations

going.

See J.A. 116.

That real-world legal

consequence is not hard to “apprecia[te].” It is

certainly not lost on respondent’s members and other

Guam residents, who have endured these operations

taking place in their surroundings since 2021. See

Flores Decl. ¶¶ 9, 15; D. Ct. Doc. 56-2, at 1-2 (Oct. 25,

2025).

Petitioners next claim (Br. 30) that this effect

“flow[ed]” from the 2018 permit, not from the 2021

application. But per the regulation’s plain language,

the Air Force’s submission of the renewal application

was a necessary trigger: “the conditions of an expired

permit continue in force . . . until the effective date of

a new permit . . . if . . . [t]he permittee has submitted

a timely application [for a new permit].” 40 C.F.R.

§ 270.51(a) (emphasis added).

It is true (Pet. Br. 27) that the renewal application

did not cause this result entirely “by itself.” But this

Court has never suggested that agency action must be

an independently sufficient cause of a legal

consequence, as opposed to a but-for one. After all,

“[a]gency orders that have no independent coercive

effect are common.” Port of Boston Marine Terminal

Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62,

71 (1970). This Court has repeatedly refused to allow

such technicalities to immunize agency action from

judicial review. See, e.g., Hawkes, 578 U.S. at 599600; Abbott Labs., 387 U.S. at 151-52.

Petitioners’ concern (Br. 30) that there is a

“mismatch” between the 2018 permit extension and

respondent’s NEPA challenge to the Air Force’s 2021

decision is similarly unavailing. Petitioners suggest

that “if a permit-renewal application proposed terms

radically different from those of the preexisting

permit,” it would be improper to base a final-agencyaction finding on the preexisting permit’s extension.

Id. They are mistaken.

To begin with, there is no mismatch here. There is

no dispute that the Air Force’s 2018 permit was

identical in all material respects to the 2021 draft

permit. See Pet. Br. 13. They both select the exact

same site for OD and authorize precisely the same

operations to treat the same hazardous-waste

explosives. See supra at 10-11. Respondent’s claim—

that the Air Force failed to comply with NEPA before

deciding to continue OD operations past the 2018

permit’s expiration—accordingly applies to the

automatic-extension period too. See J.A. 1-2; D. Ct.

Doc. 20, at 1-2, 6, 8 (May 2, 2022); D. Ct. Doc. 52-1, at

5 (Oct. 17, 2025); Flores Decl. ¶¶ 9, 17.

Even if there were some discrepancy between the

legal effect satisfying Bennett and the nature of

respondent’s claim, that would be irrelevant—as

evidenced by Bennett itself. There, the dispute was

about the Bureau of Reclamation’s operation of an

irrigation project. 520 U.S. at 157. Because the

project triggered the Endangered Species Act, the

Bureau sought a biological opinion from the Fish and

Wildlife Service; that opinion recommended

alternatives to the Bureau’s plans that the Service

believed would avoid jeopardy to the species. Id. at

159. The Bennett plaintiffs were irrigation districts

and ranch operators who used the project’s water and

who objected to the Service’s recommendations as

overly restrictive. Id. at 159-60, 167. In finding the

APA’s finality requirement met, this Court relied on

the fact that the biological opinion and an

accompanying agency statement created safe-harbor

protection for the Bureau if the Service’s

recommendations were followed. Id. at 178; see id. at

169-70. But the Court did not ask whether the

districts and ranchers objected to the Bureau

receiving safe-harbor protection per se—and there is

no reason to think they did. See id. at 178. In other

words, so long as the Service action the plaintiffs

challenged had a legal consequence, their APA suit

could proceed.

iii. Petitioners’ remaining arguments on this point

fare no better.

Once again, the EPA regulation that petitioners

invoke (Br. 31-32) is neither applicable nor helpful.

That judicial-review regulation specifies that, when

EPA is the permitting authority, EPA’s “final agency

action” on a RCRA application occurs when EPA

grants or denies the permit and the aggrieved party

exhausts its intra-EPA appeals.

40 C.F.R.

§ 124.19(l)(2). It thus purports to define the point of

finality for purposes of the permitting authority’s

decision on the application—not a federal applicant’s

antecedent decision to conduct hazardous-waste

operations.

Petitioners also note (Br. 31) the similarity

between the RCRA permit-extension regulation and

an APA provision stating that, when a licensee has

applied for renewal of a license for “an activity of a

continuing nature,” the prior license “does not expire

until the application has been finally determined.”

5 U.S.C. § 558(c). Petitioners call the APA provision

a mere “tolling” rule, but it authorizes an extension.

See Rico v. United States, 607 U.S. 609, 614-15 (2026);

Pan-Atlantic S.S. Corp. v. Atlantic Coast Line R.R.

Co., 353 U.S. 436, 439 (1957). Accordingly, when the

provision applies, it effects a legal consequence. Cf.

Rico, 607 U.S. at 615-17 (treating a proposed

extension rule as carrying legal effect and requiring

legal grounding). 9

To the extent that affirmance here would suggest

as much, such a result would hardly be “untenable.”

Pet. Br. 31. A license extension by virtue of the APA

provision would give rise to litigation only if the

licensee is a federal agency (see Pet. Br. 32); if the

challenger’s claim centers on the licensee agency’s

decisionmaking (not the licensing agency’s); and if the

Petitioners note (Br. 31) that “application” is not among

the examples of agency action in 5 U.S.C. § 551(13). But the

application is relevant here because it memorialized the Air

Force’s decision, and in any case, Section 551(13) merely contains

examples. See FTC v. Standard Oil Co., 449 U.S. 232, 238 n.7

(1980) (issuance of a complaint qualifies); see also supra at 3839.

challenger can establish an Article III injury

stemming from the licensee agency’s continued

conduct. In other words, the claim would have to

closely resemble respondent’s NEPA claim here.

2. In the alternative, the court of appeals correctly

concluded that legal consequences “will flow” from the

Air Force’s application because the Air Force will be

bound by the application’s plans and representations

upon Guam EPA approval. Bennett, 520 U.S. at 178

(citation omitted); see Pet. App. 29a.

The Air Force’s application, which includes a draft

permit, is clear that its terms and conditions will

become legally binding once the permit is operative.

See, e.g., J.A. 63 (providing that “[t]he Permittee is

allowed to treat hazardous waste at the OB/OD unit

in accordance with the conditions of this permit” and

that “[a]ny treatment of hazardous waste not

authorized in this Permit is prohibited”). Submitting

the application “alters the legal regime to which [the

Air Force] is subject,” in that the Air Force has made

commitments it will not be free to unilaterally change

once accepted. Bennett, 520 U.S. at 169.

Petitioners argue that, without Guam EPA’s

approval, the Air Force’s permit application

“authorizes nothing.” Pet. Br. 27. Even putting aside

the automatic extension of the 2018 permit, this

Court’s decision in Biden v. Texas refutes petitioners’

gloss on the Bennett test. In Biden, the fact that the

agency could not carry out the DHS Secretary’s

direction “until it obtained vacatur of the District

Court’s injunction” did not make that direction “any

less the agency’s final determination of its employees’

obligation to do so once such judicial authorization

had been obtained.” 597 U.S. at 809 n.7. Here too,

the Air Force’s decision to conduct OD at Tarague

finally determined the agency’s plan of operations,

even though full implementation must await an

external decision.

Petitioners instead rely on cases where agency

officials delivered reports to the President that

functioned “like a tentative recommendation” for his

action. Franklin v. Massachusetts, 505 U.S. 788, 79899 (1992); see also Dalton v. Specter, 511 U.S. 462,

469-70 (1994).

But respondent’s suit does not

challenge a subordinate’s recommendation to an

intra-branch superior about the decision at hand. Cf.

Abbott Labs., 387 U.S. at 151 (rulings of “a

subordinate official” can be non-final). Here, the

decision respondent challenges—whether to treat

munitions through OD operations at Tarague past

2021, or cease—was the Air Force’s to make. And that

decision was not subject to further approval within

the chain of command. See Pet. App. 23a.

Petitioners dismiss (Br. 28-29) the significance of

Franklin and Dalton’s intra-branch context,

contending that the Air Force ought to be analogized

to Guam EPA’s subordinate. But the Air Force is not

Guam EPA’s subordinate, and the Air Force’s decision

represents DOD’s last word on its operational plans.

And again, Biden v. Texas has since confirmed that

Franklin and Dalton cannot be read so broadly as to

preclude a legal-consequence finding merely because

another entity’s independent action is required. See

597 U.S. at 809 n.7.

Nor is the Air Force’s permit application the

equivalent of a case-initiating notice in an

enforcement action. See Pet. Br. 29 (citing FTC v.

Standard Oil Co., 449 U.S. 232 (1980)). In Standard

Oil, the Federal Trade Commission’s complaint

merely found that there was a sufficient basis to begin

proceedings in which the Commission itself would

later determine liability. 449 U.S. at 241-42. Here,

the Air Force’s permit-renewal application represents

its “definitive statement of position” on whether it will

conduct further OD operations on Tarague, id. at 241,

and it will not revisit that question at the end of the

RCRA-permitting process.

C. Hearing The NEPA Claim Now Furthers

Sound Principles Of Judicial Review

Reviewing respondent’s NEPA claim at this

juncture also “tracks the ‘pragmatic’ approach [this

Court] ha[s] long taken to finality.” Hawkes, 578 U.S.

at 599 (citation omitted).

If the Court concludes, as it should, that NEPA

applies to the Air Force’s decision, see supra at 18-38,

then respondent’s claim that the Air Force violated

that statute must be heard eventually. Petitioners

are cagey about their view of when, exactly, the Air

Force’s decision to carry out environmentally

destructive operations on Tarague becomes final

agency action. 10 If it is not the point of memorializing

In the court below, petitioners argued that the relevant

action happened when the Air Force first decided to conduct

OB/OD at Tarague in 1982. See Pet. App. 28a; id. at 55a

(VanDyke, J., dissenting). Petitioners do not renew that

contention here. And they would be hard-pressed to explain why

the first decision to conduct OD and seek a RCRA permit (see id.

at 12a) constituted final agency action, while each permitrenewal decision does not.

the decision in a RCRA application, then when? When

the permitting agency approves the application? The

day an OD operation is scheduled? Seconds before the

explosives are detonated? Whatever the answer, it

cannot be that this federal decision about significant

federal operations escapes review simply because a

non-federal entity also has to authorize it. 11

If the Air Force takes final agency action at some

point (as it surely must), then there can be no dispute

that respondent’s NEPA challenge would need to be

resolved then too. After all, even a “preliminary,

procedural, or intermediate agency action or ruling

not directly reviewable is subject to review on the

review of the final agency action.” 5 U.S.C. § 704.

So the question is not whether a court ever hears

respondent’s NEPA claim, but when. Postponing

adjudication until the permit issues—or perhaps until

the eve or day of an OD operation—defeats NEPA’s

core objective of informing agency decisionmaking as

early as possible. And it serves no one. It would build

in delay (in this case, five years’ worth) that could

preclude addressing a NEPA failure close in time to

its occurrence. It could give rise to emergency

litigation. It could create a scenario where the natural

APA remedy for the NEPA violation—vacating the

pending application, see 5 U.S.C. § 706(2)—is

unavailable. And even assuming a court could issue

Post-2023 NEPA does not require environmental study

when “the proposed agency action is not a final agency action.”

42 U.S.C. § 4336(a)(1) (emphasis added); see Pet. Br. 35 n.*.

Here, the action the Air Force proposes is to conduct (permitted)

OD operations—which undoubtedly qualifies as final agency

action.

another equitable remedy, a compliant NEPA

analysis could render Guam EPA’s review of the prior

application a waste of time—either because the

application will materially change, or because the Air

Force will withdraw it entirely (for instance, because

it decided to treat munitions off Guam).

Nor would it be possible in many cases to

consolidate a NEPA claim against a federal-permittee

agency with any challenge to the permit’s issuance.

When the permitting authority is a State, judicial

review of the permit usually proceeds under a statelaw cause of action. See, e.g., City of Phoenix v.

Arizona Dep’t of Env’t Quality, 74 P.3d 250, 251-53

(Ariz. Ct. App. 2003). But the Eleventh Amendment

bars state-law actions against state agencies from

being heard in federal court. See Pennhurst State Sch.

& Hosp. v. Hardiman, 465 U.S. 89, 119-23 (1984).

In short, adopting petitioners’ understanding of

finality is a recipe for inefficiency and prolonged

uncertainty. The Court should reject it.

CONCLUSION

The judgment should be affirmed.

Respectfully submitted,

DAVID L. HENKIN

EARTHJUSTICE

850 Richards Street

Suite 400

Honolulu, HI 96813

LINNET DAVIS-STERMITZ

EARTHJUSTICE

810 Third Avenue

Suite 610

Seattle, WA 98104

CAROLINE A. FLYNN

Counsel of Record

KIRTI DATLA

THIEN T. CHAU

EARTHJUSTICE

1250 Eye Street NW

Floor 4

Washington, DC 20001

(202) 797-4316

cflynn@earthjustice.org

Counsel for Respondent

July 20, 2026

APPENDIX

TABLE OF CONTENTS

Page

5 U.S.C. § 558(c) ........................................................1a

5 U.S.C. § 704 ............................................................2a

42 U.S.C. § 4331(b) (2024) ........................................2a

42 U.S.C. § 4332 (2018) .............................................3a

42 U.S.C. § 4332 (2024) ............................................4a

42 U.S.C. § 4336 (2024) ............................................6a

42 U.S.C. § 6905(b) ....................................................8a

42 U.S.C. § 6924(a)-(b) ..............................................9a

42 U.S.C. § 6925 (a)-(c) ............................................10a

32 C.F.R. § 651.14(e) (2021) ....................................13a

40 C.F.R. § 124.9(a)-(b) ............................................14a

40 C.F.R. § 124.19 ...................................................15a

40 C.F.R. § 265.382 ..................................................16a

40 C.F.R. § 270.51(a)-(b) .........................................17a

40 C.F.R. § 1502.24 (2021) ......................................17a

40 C.F.R. § 1508.1 (2021) ........................................18a

(I)

APPENDIX

5 U.S.C. § 558(c) provides:

Imposition of sanctions; determination of

applications for licenses; suspension,

revocation, and expiration of licenses

***

required by law, the agency, with due regard for the

rights and privileges of all the interested parties or

adversely affected persons and within a reasonable

time, shall set and complete proceedings required to

be conducted in accordance with sections 556 and 557

of this title or other proceedings required by law and

shall make its decision. Except in cases of willfulness

or those in which public health, interest, or safety

requires otherwise, the withdrawal, suspension,

revocation, or annulment of a license is lawful only if,

before the institution of agency proceedings therefor,

the licensee has been given—

(1) notice by the agency in writing of the facts

or conduct which may warrant the action; and

(2) opportunity to demonstrate or achieve

compliance with all lawful requirements.

When the licensee has made timely and sufficient

application for a renewal or a new license in

accordance with agency rules, a license with reference

to an activity of a continuing nature does not expire

until the application has been finally determined by

the agency.

(1a)

5 U.S.C. § 704 provides:

Actions reviewable

Agency action made reviewable by statute and final

agency action for which there is no other adequate

remedy in a court are subject to judicial review. A

preliminary, procedural, or intermediate agency

action or ruling not directly reviewable is subject to

review on the review of the final agency action. Except

as otherwise expressly required by statute, agency

action otherwise final is final for the purposes of this

section whether or not there has been presented or

determined an application for a declaratory order, for

any form of reconsideration, or, unless the agency

otherwise requires by rule and provides that the

action meanwhile is inoperative, for an appeal to

superior agency authority.

42 U.S.C. § 4331(b) provides:

Congressional declaration of national

environmental policy

***

(b) In order to carry out the policy set forth in this

chapter, it is the continuing responsibility of the

Federal Government to use all practicable means,

consistent with other essential considerations of

national policy, to improve and coordinate Federal

plans, functions, programs, and resources to the end

that the Nation may—

(1) fulfill the responsibilities of each

generation as trustee of the environment for

succeeding generations;

(2) assure for all Americans safe, healthful,

productive, and esthetically and culturally pleasing

surroundings;

(3) attain the widest range of beneficial uses of

the environment without degradation, risk to

health or safety, or other undesirable and

unintended consequences;

(4) preserve important historic, cultural, and

natural aspects of our national heritage, and

maintain, wherever possible, an environment

which supports diversity and variety of individual

choice;

(5) achieve a balance between population and

resource use which will permit high standards of

living and a wide sharing of life’s amenities; and

(6) enhance the quality of renewable resources

and approach the maximum attainable recycling of

depletable resources.

42 U.S.C. § 4332 (2018) provides in

pertinent part:

Cooperation of agencies; reports; availability of

information; recommendations; international

and national coordination of efforts

The Congress authorizes and directs that, to the

fullest extent possible: (1) the policies, regulations,

and public laws of the United States shall be

interpreted and administered in accordance with the

policies set forth in this chapter, and (2) all agencies

of the Federal Government shall—

***

proposals for legislation and other major Federal

actions significantly affecting the quality of the

human environment, a detailed statement by the

responsible official on—

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be

implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the maintenance

and enhancement of long-term productivity, and

(v) any

irreversible

and

irretrievable

commitments of resources which would be involved

in the proposed action should it be implemented.

***

42 U.S.C. § 4332 (2024) provides in

pertinent part:

Cooperation of agencies; reports; availability of

information; recommendations; international

and national coordination of efforts

The Congress authorizes and directs that, to the

fullest extent possible: (1) the policies, regulations,

and public laws of the United States shall be

interpreted and administered in accordance with the

policies set forth in this chapter, and (2) all agencies

of the Federal Government shall—

***

and except where compliance would be inconsistent

with other statutory requirements, include in every

recommendation or report on proposals for legislation

and other major Federal actions significantly affecting

the quality of the human environment, a detailed

statement by the responsible official on—

(i) reasonably foreseeable environmental

effects of the proposed agency action;

(ii) any reasonably foreseeable adverse

environmental effects which cannot be avoided

should the proposal be implemented;

(iii) a reasonable range of alternatives to the

proposed agency action, including an analysis of

any negative environmental impacts of not

implementing the proposed agency action in the

case of a no action alternative, that are technically

and economically feasible, and meet the purpose

and need of the proposal;

(iv) the relationship between local short-term

uses of man’s environment and the maintenance

and enhancement of long-term productivity; and

(v) any

irreversible

and

irretrievable

commitments of Federal resources which would be

involved in the proposed agency action should it be

implemented.

Prior to making any detailed statement, the head

of the lead agency shall consult with and obtain the

comments of any Federal agency which has

jurisdiction by law or special expertise with respect

to any environmental impact involved. Copies of

such statement and the comments and views of the

appropriate Federal, State, and local agencies,

which are authorized to develop and enforce

environmental standards, shall be made available

to the President, the Council on Environmental

Quality and to the public as provided by section 552

of title 5, and shall accompany the proposal through

the existing agency review processes;

42 U.S.C. § 4336 (2024) provides:

Procedure for determination of level of review

(a)

Threshold determinations

An agency is not required to prepare an

environmental document with respect to a proposed

agency action if—

(1) the proposed agency action is not a final

agency action within the meaning of such term in

chapter 5 of title 5;

(2) the proposed agency action is excluded

pursuant to one of the agency’s categorical

exclusions, another agency’s categorical exclusions

consistent with section 4336c of this title, or

another provision of law;

(3) the preparation of such document would

clearly and fundamentally conflict with the

requirements of another provision of law; or

(4)

the

proposed

agency

action

nondiscretionary action with respect to which such

agency does not have authority to take

environmental factors into consideration in

determining whether to take the proposed action.

(b) Levels of review

(1)

Environmental impact statement

An agency shall issue an environmental impact

statement with respect to a proposed agency action

requiring an environmental document that has a

reasonably foreseeable significant effect on the

quality of the human environment.

(2)

Environmental assessment

An agency shall prepare an environmental

assessment with respect to a proposed agency

action that does not have a reasonably foreseeable

significant effect on the quality of the human

environment, or if the significance of such effect is

unknown, unless the agency finds that the proposed

agency action is excluded pursuant to one of the

agency’s categorical exclusions, another agency’s

categorical exclusions consistent with section 4336c

of this title, or another provision of law. Such

environmental assessment shall be a concise public

document prepared by a Federal agency to set forth

the basis of such agency’s finding of no significant

impact or determination that an environmental

impact statement is necessary.

(3)

Sources of information

In making a determination

subsection, an agency—

under

this

(A) may make use of any reliable data source;

and

(B) is not required to undertake new scientific

or technical research unless the new scientific or

technical research is essential to a reasoned

choice among alternatives, and the overall costs

and time frame of obtaining it are not

unreasonable.

42 U.S.C. § 6905(b) provides in pertinent

part:

Application of chapter and integration with

other Acts

***

(b) Integration with other Acts

(1) The Administrator shall integrate all

provisions of this chapter for purposes of

administration and enforcement and shall avoid

duplication, to the maximum extent practicable, with

the appropriate provisions of the Clean Air Act [42

U.S.C. 7401 et seq.], the Federal Water Pollution

Control Act [33 U.S.C. 1251 et seq.], the Federal

Insecticide, Fungicide, and Rodenticide Act [7 U.S.C.

136 et seq.], the Safe Drinking Water Act [42 U.S.C.

300f et seq.], the Marine Protection, Research and

Sanctuaries Act of 1972 [16 U.S.C. 1431 et seq., 1447

et seq., 33 U.S.C. 1401 et seq., 2801 et seq.], and such

other Acts of Congress as grant regulatory authority

to the Administrator. Such integration shall be

effected only to the extent that it can be done in a

manner consistent with the goals and policies

expressed in this chapter and in the other acts

referred to in this subsection.

42 U.S.C. § 6924(a) provides in pertinent

part:

Standards applicable to owners and operators

of hazardous waste treatment, storage, and

disposal facilities

(a)

In general

Not later than eighteen months after October 21,

1976, and after opportunity for public hearings and

after consultation with appropriate Federal and State

agencies, the Administrator shall promulgate

regulations establishing such performance standards,

applicable to owners and operators of facilities for the

treatment, storage, or disposal of hazardous waste

identified or listed under this subchapter, as may be

necessary to protect human health and the

environment. In establishing such standards the

Administrator shall, where appropriate, distinguish

in such standards between requirements appropriate

for new facilities and for facilities in existence on the

date of promulgation of such regulations. Such

standards shall include, but need not be limited to,

requirements respecting—

(1) maintaining records of all hazardous

wastes identified or listed under this chapter which

is treated, stored, or disposed of, as the case may be,

and the manner in which such wastes were treated,

stored, or disposed of;

(2) satisfactory reporting, monitoring, and

inspection and compliance with the manifest

10a

system referred to in section 6922(5) 1 of this title;

(3) treatment, storage, or disposal of all such

waste received by the facility pursuant to such

operating methods, techniques, and practices as

may be satisfactory to the Administrator;

(4) the location, design, and construction of

such hazardous waste treatment, disposal, or

storage facilities;

(5) contingency plans for effective action to

minimize unanticipated damage from any

treatment, storage, or disposal of any such

hazardous waste;

(6) the maintenance of operation of such

facilities

and

requiring

such

additional

qualifications as to ownership, continuity of

operation, training for personnel, and financial

responsibility (including financial responsibility for

corrective action) as may be necessary or desirable;

and

(7) compliance with the requirements of

section 6925 of this title respecting permits for

treatment, storage, or disposal.

***

42 U.S.C. § 6925 provides in pertinent part:

Permits for treatment, storage, or disposal of

hazardous waste

(a)

Permit requirements

Not later than eighteen months after October 21,

11a

1976, the Administrator shall promulgate regulations

requiring each person owning or operating an existing

facility or planning to construct a new facility for the

treatment, storage, or disposal of hazardous waste

identified or listed under this subchapter to have a

permit issued pursuant to this section. Such

regulations shall take effect on the date provided in

section 6930 of this title and upon and after such date

the treatment, storage, or disposal of any such

hazardous waste and the construction of any new

facility for the treatment, storage, or disposal of any

such hazardous waste is prohibited except in

accordance with such a permit. No permit shall be

required under this section in order to construct a

facility if such facility is constructed pursuant to an

approval issued by the Administrator under section

2605(e) of title 15 for the incineration of

polychlorinated biphenyls and any person owning or

operating such a facility may, at any time after

operation or construction of such facility has begun,

file an application for a permit pursuant to this

section authorizing such facility to incinerate

hazardous waste identified or listed under this

subchapter.

(b) Requirements of permit application

Each application for a permit under this section

shall contain such information as may be required

under regulations promulgated by the Administrator,

including information respecting—

(1) estimates with respect to the composition,

quantities, and concentrations of any hazardous

waste identified or listed under this subchapter, or

combinations of any such hazardous waste and any

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other solid waste, proposed to be disposed of,

treated, transported, or stored, and the time,

frequency, or rate of which such waste is proposed

to be disposed of, treated, transported, or stored;

and

(2) the site at which such hazardous waste or

the products of treatment of such hazardous waste

will be disposed of, treated, transported to, or

stored.

(c)

Permit issuance

(1) Upon a determination by the Administrator

(or a State, if applicable), of compliance by a facility

for which a permit is applied for under this section

with the requirements of this section and section

6924 of this title, the Administrator (or the State)

shall issue a permit for such facilities.

***

(3) Any permit under this section shall be for a

fixed term, not to exceed 10 years in the case of any

land disposal facility, storage facility, or incinerator

or other treatment facility. Each permit for a land

disposal facility shall be reviewed five years after

date of issuance or reissuance and shall be modified

as necessary to assure that the facility continues to

comply with the currently applicable requirements

of this section and section 6924 of this title. Nothing

in this subsection shall preclude the Administrator

from reviewing and modifying a permit at any time

during its term. Review of any application for a

permit renewal shall consider improvements in the

state of control and measurement technology as

well as changes in applicable regulations. Each

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permit issued under this section shall contain such

terms and conditions as the Administrator (or the

State) determines necessary to protect human

health and the environment.

***

10.

32 C.F.R. § 651.14(e) (2021) provides in

pertinent part:

Integration with Army planning.

***

(e) Analyses

and

documentation.

Several

statutes, regulations, and Executive Orders require

analyses,

consultation,

documentation,

and

coordination, which duplicate various elements and/

or analyses required by NEPA and the CEQ

regulations; often leading to confusion, duplication of

effort, omission, and, ultimately, unnecessary cost

and delay. Therefore, Army proponents are

encouraged to identify, early in the NEPA process,

opportunities for integrating those requirements into

proposed Army programs, policies, and projects.

Environmental analyses required by this part will be

integrated as much as practicable with other

environmental reviews, laws, and Executive Orders

(40 CFR 1502.25). Incorporation of these processes

must ensure that the individual requirements are

met, in addition to those required by NEPA. The

NEPA process does not replace the procedural or

substantive requirements of other environmental

statutes and regulations. Rather, it addresses them in

one place so the decision maker has a concise and

14a

comprehensive view of the major environmental

issues and understands the interrelationships and

potential conflicts among the environmental

components. NEPA is the ‘‘umbrella’’ that facilitates

such coordination by integrating processes that might

otherwise proceed independently. Prime candidates

for such integration include, but are not limited to, the

following:

***

(9)

11.

Resource Conservation and Recovery Act.

40 C.F.R. § 124.9(a)-(b) provides:

Administrative record for draft permits when

EPA is the permitting authority.

(a) The provisions of a draft permit prepared by

EPA under §124.6 shall be based on the

administrative record defined in this section.

(b) For preparing a draft permit under §124.6, the

record shall consist of:

(1) The application, if required, and any

supporting data furnished by the applicant;

(2) The draft permit or notice of intent to deny

the application or to terminate the permit;

(3) The statement of basis (§124.7) or fact sheet

(§124.8);

(4) All documents cited in the statement of

basis or fact sheet; and

(5) Other documents contained

supporting file for the draft permit.

the

15a

(6) For NPDES new source draft permits only,

any environmental assessment, environmental

impact statement (EIS), finding of no significant

impact, or environmental information document

and any supplement to an EIS that may have been

prepared. NPDES permits other than permits to

new sources as well as all RCRA, UIC and PSD

permits are not subject to the environmental

impact statement provisions of section 102(2)(C) of

the National Environmental Policy Act, 42 U.S.C.

4321.

12.

40 C.F.R. § 124.19 provides in pertinent

part:

Appeal of RCRA, UIC, NPDES and PSD

Permits.

(a) Petitioning for review of a permit decision.

(1) Initiating an appeal. Appeal from a RCRA, UIC,

NPDES, or PSD final permit decision issued under

§124.15 of this part, or a decision to deny a permit for

the active life of a RCRA hazardous waste

management facility or unit under §270.29 of this

chapter, is commenced by filing a petition for review

with the Clerk of the Environmental Appeals Board

within the time prescribed in paragraph (a)(3) of this

section.

***

(l) Final disposition and judicial review. (1) A

petition to the Environmental Appeals Board under

paragraph (a) of this section is, under 5 U.S.C. 704, a

prerequisite to seeking judicial review of the final

16a

agency action.

(2) For purposes of judicial review under the

appropriate Act, final agency action on a permit

occurs when agency review procedures under this

section are exhausted and the Regional Administrator

subsequently issues a final permit decision under this

paragraph (l). A final permit decision must be issued

by the Regional Administrator:

(i) When the Environmental Appeals Board

issues notice to the parties that the petition for

review has been denied;

(ii) When the Environmental Appeals Board

issues a decision on the merits of the appeal and the

decision does not include a remand of the

proceedings; or

(iii) Upon

the

completion

remand

proceedings if the proceedings are remanded,

unless the Environmental Appeals Board’s remand

order specifically provides that appeal of the

remand decision will be required to exhaust

administrative remedies.

***

13.

40 C.F.R. § 265.382 provides in pertinent

part:

Open burning; waste explosives.

Open burning of hazardous waste is prohibited

except for the open burning and detonation of waste

explosives. Waste explosives include waste which has

the potential to detonate and bulk military

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propellants which cannot safely be disposed of

through other modes of treatment.

***

14.

40 C.F.R. § 270.51(a)-(b) provides:

Continuation of expiring permits.

(a) EPA permits. When EPA is the permit-issuing

authority, the conditions of an expired permit

continue in force under 5 U.S.C. 558(c) until the

effective date of a new permit (see §124.15) if:

(1) The permittee has submitted a timely

application under §270.14 and the applicable

sections in §§270.15 through 270.29 which is a

complete (under §270.10(c)) application for a new

permit; and

(2) The Regional Administrator through no

fault of the permittee, does not issue a new permit

with an effective date under §124.15 on or before

the expiration date of the previous permit (for

example, when issuance is impracticable due to

time or resource constraints).

(b) Effect. Permits continued under this section

remain fully effective and enforceable.

15.

40 C.F.R. § 1502.24 (2021) provides:

Environmental review and consultation

requirements.

(a) To the fullest extent possible, agencies shall

prepare draft environmental impact statements

18a

concurrent and integrated with environmental impact

analyses and related surveys and studies required by

all other Federal environmental review laws and

Executive orders applicable to the proposed action,

including the Fish and Wildlife Coordination Act (16

U.S.C. 661 et seq.), the National Historic Preservation

Act of 1966 (54 U.S.C. 300101 et seq.), and the

Endangered Species Act of 1973 (16 U.S.C. 1531 et

seq.).

(b) The draft environmental impact statement

shall list all Federal permits, licenses, and other

authorizations

that

must

obtained

implementing the proposal. If it is uncertain whether

a Federal permit, license, or other authorization is

necessary, the draft environmental impact statement

shall so indicate.

16.

40 C.F.R. § 1508.1 (2021) provides in

pertinent part:

Definitions.

***

(g) Effects or impacts means changes to the

human environment from the proposed action or

alternatives that are reasonably foreseeable and have

a reasonably close causal relationship to the proposed

action or alternatives, including those effects that

occur at the same time and place as the proposed

action or alternatives and may include effects that are

later in time or farther removed in distance from the

proposed action or alternatives.

(1)

Effects include ecological (such as the

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effects on natural resources and on the components,

structures, and functioning of affected ecosystems),

aesthetic, historic, cultural, economic (such as the

effects on employment), social, or health effects.

Effects may also include those resulting from

actions that may have both beneficial and

detrimental effects, even if on balance the agency

believes that the effect will be beneficial.

***

(m) Human environment means comprehensively

the natural and physical environment and the

relationship of present and future generations of

Americans with that environment. (See also the

definition of ‘‘effects’’ in paragraph (g) of this section.)

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.