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

Supreme Court briefJul 24, 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 OF AMICUS CURIAE

BLUE OCEAN LAW

IN SUPPORT OF RESPONDENT

JULIAN AGUON

Counsel of Record

AUTUMN BORDNER

BLUE OCEAN LAW, P.C.

446 Marine Corps Drive

Suite 201

Hagåtña, Guam 96910

(671) 472-2583

julian@blueoceanlaw.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF ARGUMENT .....................................4

ARGUMENT ...............................................................6

I. NEPA Has Heightened Importance In

Guam ..................................................................8

II. RCRA Does Not Clearly Conflict With

NEPA ................................................................19

III. RCRA Is Not The Functional Equivalent

Of NEPA ...........................................................25

A. RCRA Review Begins Too Late .....................26

B. RCRA Public Comment Is Not NEPA

Public Participation ......................................27

C. RCRA Review Is Different In Scope .............30

CONCLUSION ..........................................................36

(i)

TABLE OF AUTHORITIES

Cases

Aberdeen & Rockfish R.R. Co. v. Students

Challenging Regul. Agency Proc.,

422 U.S. 289 (1975) ....................................... 23, 27

Andrus v. Sierra Club,

442 U.S. 347 (1979) ................................. 26, 27, 34

Att’y Gen. of Guam v. United States,

738 F.2d 1017 (9th Cir. 1984) ...............................9

Balt. Gas & Elec. Co. v. Nat. Res. Def.

Council,

462 U.S. 87 (1983) ................................... 15, 18, 30

California v. Block,

690 F.2d 753, 770-71 (9th Cir. 1982) ..................27

City of Chicago v. Env’t Def. Fund,

511 U.S. 328 (1994) .............................................26

Crain v. Gov’t of Guam,

195 F.2d 414 (9th Cir. 1952) .................................8

Ctr. for Biological Diversity v. Bernhardt,

982 F.3d 723 (9th Cir. 2020) ...............................28

Ctr. for Biological Diversity v. U.S. Bureau

of Land Mgmt.,

141 F.4th 976 (9th Cir. 2025) .............................31

Ctr. for Biological Diversity v. U.S. Dep’t of

Interior,

72 F.4th 1166 (10th Cir. 2023) ...........................31

Dep’t of Transp. v. Pub. Citizen,

541 U.S. 752 (2004) ....................................... 15, 27

iii

Downes v. Bidwell,

182 U.S. 244 (1901) ...........................................7, 8

Earth Env’t Def. Ctr. v. Bureau of Ocean

Energy Mgmt.,

36 F.4th 850 (9th Cir. 2022) ...............................31

Earth Island Inst. v. U.S. Forest Serv.,

87 F.4th 1054 (9th Cir. 2023) .............................31

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) ....................................... 21, 22

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

of Okla.,

426 U.S. 776 (1976) ........................... 19, 21, 22, 23

Guam v. Guerrero,

290 F.3d 1210 (9th Cir. 2002) ...............................8

Klamath-Siskiyou Wildlands Ctr. v.

Bureau of Land Mgmt.,

387 F.3d 989 (9th Cir. 2004) ...............................16

Kleppe v. Sierra Club,

427 U.S. 390 (1976) ....................................... 16, 24

Lowman v. Fed. Aviation Admin.,

83 F.4th 1345 (11th Cir. 2023) ...........................31

N. Alaska Env’t Ctr. v. Kempthorne,

457 F.3d 969 (9th Cir. 2006) ......................... 31, 32

N. Alaska Env’t Ctr. v. U.S. Dep’t of

Interior,

983 F.3d 1077 (9th Cir. 2020) .............................28

Nat’l Audubon Soc’y v. U.S. Dep’t. of Navy,

422 F.3d 174 (4th Cir. 2005) ...............................16

Nevada v. Dep’t. of Energy,

457 F.3d 78 (D.C. Cir. 2006) ...............................31

Puerto Rico v. Sanchez Valle,

579 U.S. 59 (2016) .................................................9

Robertson v. Methow Valley Citizens

Council,

490 U.S. 332 (1989) ......... 12, 18, 25, 26, 27, 30, 35

Sakamoto v. Duty Free Shoppers, Ltd.,

764 F.2d 1285 (9th Cir. 1985) ...............................9

Seven Cnty. Infrastructure Coal. v.

Eagle Cnty.,

605 U.S. 168 (2025) ........................... 23, 24, 25, 31

State of Alabama ex rel. Siegelman v.

U.S. Env’t Prot. Agency,

911 F.2d 499 (11th Cir. 1990) .............................35

United States v. Cotto-Flores,

970 F.3d 17 (1st Cir. 2020) ...................................8

W. Watersheds Project v. U.S. Bureau of

Land Mgmt.,

76 F.4th 1286 (10th Cir. 2023) ...........................31

Wyoming v. U.S. Dep’t of Agric.,

661 F.3d 1209 (10th Cir. 2011) ...........................30

Federal Statutes

137 Stat. 39 (2023)

(codified at 42 U.S.C. § 4336(a)(3)) .....................21

42 U.S.C. § 4331 ...................................... 18, 20, 22, 30

42 U.S.C. § 4332 ................................ 18, 20, 23, 24, 31

42 U.S.C. § 6902 ........................................................22

42 U.S.C. § 6925 ............................................ 19, 26, 33

48 U.S.C. § 1423i .........................................................9

48 U.S.C. § 1711 ..........................................................9

National Defense Authorization Act for

Fiscal Year 2026, 39 Stat. 1551 § 4601 ...............10

Federal Regulations

33 C.F.R. § 334.1425 .................................................17

40 C.F.R. § 124.11 .....................................................28

40 C.F.R. § 124.9 .......................................................24

40 C.F.R. § 1501.3 .....................................................20

40 C.F.R. § 1501.7 .....................................................23

40 C.F.R. § 1502.5 .....................................................26

40 C.F.R. § 1508.1 .....................................................23

40 C.F.R. § 1508.7 .....................................................15

40 C.F.R. § 265.382 ...................................................33

40 C.F.R. § 270.14 .....................................................26

Guam Regulations

22 Guam Admin. R. & Regs. § 30110 .......................24

Other Authorities

72 Fed. Reg. 10186-7 (Mar. 7, 2007) .........................13

AGENCY FOR TOXIC SUBSTANCES & DISEASE

REGISTRY, PUBLIC HEALTH ASSESSMENT:

ANDERSEN AIR FORCE BASE, YIGO, GUAM

(Jan. 4, 2002) ........................................................11

ANDREW TILGHMAN, CONG. RSCH. SERV.,

R47643, GUAM: DEFENSE

INFRASTRUCTURE AND

READINESS (2023) ................................... 8, 9, 10, 11

Ashley Stava et al., Quantifying the

Substantive Influence of Public

Comment on United States Federal

Environmental Decisions Under NEPA,

20 ENV’T RES. LETTERS 1 (2025)............... 14, 28, 29

BLUE OCEAN LAW & UNREPRESENTED

NATIONS & PEOPLES ORG., SUBMISSION

TO MR. FRANCISCO CALI TZAY, SPECIAL

RAPPORTEUR ON THE RIGHTS OF

INDIGENOUS PEOPLES, REGARDING

ONGOING HUMAN RIGHTS VIOLATIONS OF

THE INDIGENOUS CHAMORRO PEOPLE OF

GUAM UNDER U.S. COLONIZATION AND

MILITARIZATION (2020),

https://perma.cc/4CHL-LGZ5 .............. 1, 10, 13, 14

vii

BLUE OCEAN LAW, CTR. FOR CONST. RIGHTS

& AM. C.L. UNION - PUERTO RICO,

TOWARDS DECOLONIZATION & REPAIR:

U.S. TERRITORIES, SELF-DETERMINATION,

AND THE INCOMPATIBILITY OF

COLONIALISM AND HUMAN RIGHTS,

REPORT TO THE U.N. HUM. RTS. COMM.

(Sept. 12, 2023),

https://perma.cc/QCS3-TD7Y ................................2

BLUE OCEAN LAW, FURTHER SUBMISSION TO

MR. FRANCISCO CALÍ TZAY, SPECIAL

RAPPORTEUR ON THE RIGHTS OF

INDIGENOUS PEOPLES, REGARDING

ONGOING HUMAN RIGHTS VIOLATIONS OF

THE INDIGENOUS CHAMORRO PEOPLE OF

GUAM UNDER U.S. COLONIZATION AND

MILITARIZATION (2024),

https://perma.cc/MPY7-XMFS ........... 2, 6, 9, 11, 17

Catherine Lutz, Bureaucratic Weaponry

and the Production of Ignorance in

Military Operations on Guam, 60

CURRENT ANTHROPOLOGY 108 (2019) ............ 11, 12

DEP’T OF NAVY, DRAFT ENVIRONMENTAL

IMPACT STATEMENT: GUAM AND CNMI

MILITARY RELOCATION (2009) ..............................13

DEP’T OF NAVY, FINAL ENVIRONMENTAL

IMPACT STATEMENT: GUAM AND CNMI

MILITARY RELOCATION (2010) ..............................34

viii

DEP’T OF NAVY, FINAL SUPPLEMENTAL

ENVIRONMENTAL IMPACT STATEMENT:

GUAM AND THE COMMONWEALTH OF THE

NORTHERN MARIANA ISLANDS

(2012 ROADMAP ADJUSTMENTS) (2015) .... 14, 16, 18

Dep’t of Navy, Tarague Beach

(accessed July 17, 2026),

https://perma.cc/ADT42ZW5?type=image ..................................................6

Emma Moore & Brent Peabody,

Veteran Benefits in U.S. Territories,

CTR. NEW AM. SEC. (Feb. 25, 2020),

https://perma.cc/SG5P-Y75G ...............................12

G.A. Res. 80/96, The Question of Guam

(Dec. 8, 2025) ..........................................................2

GOV’T OF GUAM COMM’N ON

DECOLONIZATION, GIHA MO'NA:

A SELF-DETERMINATION STUDY FOR

GUÅHAN (2019) .....................................................10

GUAM HOUS. & URB. RENEWAL AUTH.,

GUAM HOUSING STUDY AND NEEDS

ASSESSMENT (2020) ..............................................11

GUAM NAT’L WILDLIFE REFUGE & U.S. FISH

& WILDLIFE SERV., GUAM NATIONAL

WILDLIFE REFUGE COMPREHENSIVE

CONSERVATION PLAN (2009) .................................17

Guam National Wildlife Refuge,

U.S. FISH & WILDLIFE SERV.

(accessed July 21, 2026),

https://perma.cc/9VES-JMEY ..............................17

H.R. 8800, 119th Cong. § 4601 (2026) ......................10

IAN S. HARTWELL ET AL., NAT’L OCEANIC &

ATMOSPHERIC ADMIN, TECH. MEM. NOS

NCCOS 235, AN ANALYSIS OF CHEMICAL

CONTAMINANTS IN SEDIMENTS AND FISH

FROM COCOS LAGOON, GUAM (2017) ..................... 10

John W. Jenson et al., Karst Features of

Guam in Terms of a General Model of

Carbonate Island Karst, 63 J. CAVE &

KARST STUD. 9 (2001) ...........................................17

JOLIE LISTON ET AL., THE LEGACY OF

TARAGUE EMBAYMENT AND ITS

INHABITANTS, ANDERSEN AFB

(Int’l Archaeology Rsch. Inst., 1996) .....................6

Julian Aguon, Blessed is the Spot,

PLACES J. (Oct. 2025),

https://perma.cc/2SN2-AN38 ...............................10

LANNY THOMPSON, IMPERIAL ARCHIPELAGO:

REPRESENTATION AND RULE IN THE

INSULAR TERRITORIES UNDER U.S.

DOMINION AFTER 1898

(Univ. Haw. Press, 2010) .......................................9

Military Construction Command Lists 58

Active Defense Projects on Guam,

PACIFIC IS. TIMES (Nov. 5, 2024),

https://perma.cc/3UDE-ACXW ............................15

NAT’L ACADS. OF SCI., ENG’G, & MED.,

ALTERNATIVES FOR THE

DEMILITARIZATION OF CONVENTIONAL

MUNITIONS (2019) ...................................... 6, 32, 33

NAT’L RENEWABLE ENERGY LAB’Y, GUAM:

ENERGY BASELINE REPORT (May 2024) ...............11

Nejumal Kannankeril Khadid & Sébastien

Sauvé, PFAS Behavior in the

Environment: Transport Pathways,

Physicochemical Properties, and

Emerging Precursors, 2 NATURE

EMERGING CONTAMINANTS 1 (2026) ............... 17, 18

Nico Goldscheider, A Holistic Approach to

Groundwater Protection and Ecosystem

Services in Karst Terrains, 34

CARBONATES & EVAPORATES 1241 (2019) ............17

Pågat, NAT’L TR. HIS. PRES.

(accessed July 21, 2026),

https://perma.cc/GX8E-LGXL ..............................13

R. Kelebemang et al., Speciation and

Mobility of Lead in Shooting Range

Soils, 29 CHEMICAL SPECIATION &

BIOAVAILABILITY 143 (2017) ..................... 16, 17, 18

RICHARD OLMO & WENDY GOODMAN,

ARCHAEOLOGICAL MONITORING AND

EXCAVATION REPORT, TARAGUE BEACH

MWR CAMPGROUND ENHANCEMENT

PROJECT AND THE INSTALLATIONS

RESTORATION PROGRAM DRILLING

PROJECT, ANDERSEN AIR FORCE BASE,

GUAM (Int’l Archaeology Rsch. Inst.,

1993) ............................................................... 29, 30

S. 4784, 119th Cong. § 4601 (2026) ..........................10

Sarah A. Topol, The America That

Americans Forget, N.Y. TIMES MAG.

(Jul. 7, 2023),

https://perma.cc/H82A-9G3M ........................ 13, 14

Superfund Site Search Results for Guam,

U.S. ENV’T PROT. AGENCY

(accessed July 23, 2026),

https://perma.cc/LQ3C-DB92..............................10

Superfund Site: Anderson Airforce Base,

U.S. ENV’T PROT. AGENCY

(accessed July 17, 2026),

https://perma.cc/9S83-S6BK ................................11

U.S. ENV’T PROT. AGENCY, ALTERNATIVE

TREATMENT TECHNOLOGIES TO OPEN

BURNING AND OPEN DETONATION OF

ENERGETIC HAZARDOUS WASTES (2019) ...............33

U.S. GOV’T ACCOUNTABILITY OFF.,

GAO/NSIAD-87-87, HAZARDOUS WASTE:

DOD FACILITIES IN GUAM HAVING

DIFFICULTY COMPLYING WITH

REGULATIONS (1987) .............................................10

U.S. GOV’T ACCOUNTABILITY OFF., GAO-24106364, VETERANS AFFAIRS: ACTIONS

NEEDED TO IMPROVE ACCESS TO CARE IN

THE U.S. TERRITORIES AND FREELY

ASSOCIATED STATES (2024)............................. 11, 12

INTEREST OF AMICUS CURIAE1

Blue Ocean Law (“BOL”) is a Guam-based law firm

focused on human rights and environmental

protection in the U.S.-affiliated Pacific Islands and

the wider Pacific.

BOL has engaged in international work

concerning the rights of the Chamorro people amid

harms from U.S. military activities in Guam.

Specifically, BOL has submitted materials to United

Nations human rights mechanisms on behalf of the

Chamorro people documenting the cumulative effects

of U.S. military expansion in Guam, including

destruction of cultural and ecological resources,

impacts to sacred sites, public-health harms, and the

structural exclusion of Chamorro voices from

decisions affecting their homeland. See BLUE OCEAN

LAW & UNREPRESENTED NATIONS & PEOPLES ORG.,

SUBMISSION TO MR. FRANCISCO CALÍ TZAY, SPECIAL

RAPPORTEUR ON THE RIGHTS OF INDIGENOUS PEOPLES,

REGARDING ONGOING HUMAN RIGHTS VIOLATIONS OF

THE INDIGENOUS CHAMORRO PEOPLE OF GUAM UNDER

U.S. COLONIZATION AND MILITARIZATION (2020),

https://perma.cc/4CHL-LGZ5 [hereinafter “BOL 2020

FILING”]; BLUE OCEAN LAW, FURTHER SUBMISSION TO

MR. FRANCISCO CALÍ TZAY, SPECIAL RAPPORTEUR ON

THE RIGHTS OF INDIGENOUS PEOPLES, REGARDING

1 Pursuant to this Court’s Rule 37.6, Amicus states that no

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

entity or person, aside from Amicus Curiae, its members, or its

counsel, made any monetary contribution intended to fund the

preparation or submission of this brief.

(1)

ONGOING HUMAN RIGHTS VIOLATIONS OF THE

INDIGENOUS CHAMORRO PEOPLE OF GUAM UNDER U.S.

COLONIZATION

AND

MILITARIZATION

(2024),

https://perma.cc/MPY7-XMFS [hereinafter “BOL 2024

FILING”].

BOL has also made submissions to UN human

rights mechanisms documenting civil and political

rights violations and democratic-accountability

deficits that lie at the heart of the federal-territorial

relationship. See BLUE OCEAN LAW, CTR. FOR CONST.

RIGHTS & AM. C.L. UNION - PUERTO RICO, TOWARDS

DECOLONIZATION & REPAIR: U.S. TERRITORIES, SELFDETERMINATION, AND THE INCOMPATIBILITY OF

COLONIALISM AND HUMAN RIGHTS, REPORT TO THE

U.N. HUM. RTS. COMM. (Sept. 12, 2023),

https://perma.cc/QCS3-TD7Y.

Amicus offers a distinct perspective on the context

of this dispute: Guam is not merely the site of a federal

permit application. It is an unincorporated U.S.

territory where federal decisions carry profound

consequences, but where ordinary checks on federal

power are missing and opportunities for democratic

participation are severely limited.

Amicus does not ask the Court to decide questions

concerning Guam’s status as an unincorporated

territory or, under UN terminology, a non-selfgoverning territory, see G.A. Res. 80/96, The Question

of Guam (Dec. 8, 2025), or to enforce international law

applicable to such territories. Guam’s territorial

status also does not alter the text of the

Administrative Procedure Act, the National

Environmental Policy Act (“NEPA”), or the Resource

Conservation and Recovery Act (“RCRA”). But it does

mean that NEPA’s federal self-scrutiny and

participatory functions matter acutely there: offering

what is often the only structured opportunity for

Guam’s people to play a role in federal decisions that

profoundly affect them.

BOL submits this brief in support of Respondent

Prutehi Guåhan (“Prutehi”) to ensure that federal

agencies cannot evade their statutory accountability

obligations where they matter most.

SUMMARY OF ARGUMENT

Amicus’ argument proceeds in three parts.

First, NEPA is a lifeline in Guam—where military

decisions have profound consequences, but where the

ordinary structures of federal accountability are

absent. NEPA is often the only structured opportunity

for Guam’s communities to participate in federal

decisions that directly affect them. RCRA review does

not serve the same function. To hold that the Air

Force’s

antecedent

self-scrutiny

and

public

engagement obligations under NEPA are displaced by

the Guam Environmental Protection Agency’s (“EPA”)

subsequent permitting process would absolve federal

actors of public accountability where it matters most.

Second, RCRA cannot displace NEPA because

there is no clear and irreconcilable conflict between

the two statutes. Under NEPA’s plain language and

this Court’s precedents, an agency’s NEPA obligations

may be displaced where compliance is irreconcilable

with its duties under another statute. That is not the

case here. The Air Force was required to conduct

NEPA review before committing to the course of

action memorialized in the renewal application it

submitted to Guam EPA. Guam EPA’s RCRA review

began after that application was submitted. The two

processes do not conflict. If anything, NEPA’s broader

review would inform Guam EPA’s subsequent, more

targeted RCRA review.

Third, assuming arguendo that the functional

equivalent test applies, RCRA cannot displace the Air

Force’s NEPA obligations on this basis. NEPA review

is procedural, requiring agencies to integrate

environmental assessment and public perspectives

into their decision-making before committing to a

course of action. RCRA review is substantive,

requiring the permitting agency to determine whether

a proposed facility complies with hazardous-waste

standards; it does not provide the ex-ante self-scrutiny

or public participation required by NEPA. As the

Ninth Circuit correctly determined, the two serve

distinct but complementary functions.

ARGUMENT

Guam EPA’s review of the Air Force’s RCRA

renewal application cannot displace the Air Force’s

separate NEPA obligations.

In 2021, the Air Force sought to renew a RCRA

permit for open burn/open detonation (“OB/OD”) of

waste munitions on Tarague Beach. OB/OD involves

exploding waste munitions on the open ground or

burning them in the open air. NAT’L ACADS. OF SCIS.,

ENG’G,

MED.,

ALTERNATIVES

FOR

THE

DEMILITARIZATION OF CONVENTIONAL MUNITIONS 7

(2019). These practices release uncontrolled

contaminants directly into the environment,

endangering human and ecological health. Id.

The Air Force’s chosen site sits above the Northern

Guam Lens Aquifer, which provides drinking water to

over 80% of Guam’s population, and within a

landscape of deep ecological and cultural significance.

See BOL 2024 FILING, supra, at 17-18. Tarague is

among the earliest known locations of human

civilization in the Mariana Islands and “one of Guam’s

most significant archaeological sites” with artifacts

dating back to 2000 BC. Dep’t of Navy, Tarague Beach

(accessed July 17, 2026), https://perma.cc/ADT42ZW5?type=image; see also JOLIE LISTON ET AL., THE

LEGACY OF TARAGUE EMBAYMENT AND ITS

INHABITANTS, ANDERSEN AFB 2 (Int’l Archaeology

Rsch. Inst., 1996). Today, local communities fish,

gather medicine, and maintain ancestral burial

grounds there; endangered species also depend on the

surrounding habitat. BOL 2024 FILING, supra, at 18;

Resp’t’s Br. 4.

Despite the extreme risks OB/OD poses to the

human environment, the Air Force did not comply

with its NEPA obligations to conduct environmental

review before deciding to continue OB/OD on Tarague.

Petitioners now argue that the Air Force’s NEPA

obligations are displaced by the RCRA permitting

process. They claim the two conflict, or else that

RCRA renders NEPA superfluous.

Petitioners are wrong. The statutes do not conflict:

both advance the nation’s environmental policy and

do so in complementary ways.

Nor does RCRA render NEPA superfluous. NEPA

would have required the Air Force to integrate

environmental analysis into its decision-making from

the outset and it would have allowed Guam’s people

to play a role in that process. RCRA review, while also

important, does not provide these essential functions.

Carried out here by Guam EPA after the Air Force

filed its application, RCRA review checks the Air

Force’s chosen course against substantive hazardouswaste standards. It did not require the Air Force to

comprehensively assess the impacts of its proposed

action on the human environment or hear public

perspectives before committing to that course.

NEPA’s ex-ante review mechanisms matter

everywhere. But they especially matter in Guam. As

an unincorporated territory, Guam is subject to the

absolute power of the U.S. government. See Downes v.

Bidwell, 182 U.S. 244, 268 (1901). Yet because Guam

is a territory, its people, though U.S. citizens, lack

federal representation. And because the territorial

government does not possess the retained sovereignty

of a state, it cannot regulate military conduct as a

state can. In light of these deficits, NEPA is often the

only structured process by which Guam’s people can

participate in federal decisions that directly impact

their island, their communities, and their futures.

To hold that Guam EPA’s review of the Air Force’s

renewal application can absolve the Air Force of its

NEPA obligations would compound Guam’s territorial

disenfranchisement, eliminating one of the only

channels through which its people may play a role in

federal decision-making that profoundly affects them.

I. NEPA Has Heightened Importance In Guam

NEPA’s federal accountability functions take on

heightened importance in Guam.

Guam is an unincorporated U.S. territory. Guam

v. Guerrero, 290 F.3d 1210, 1214 (9th Cir. 2002). That

“subordinate” political status means that the ordinary

checks on federal power embedded in constitutional

federalism and representative democracy are largely

absent in Guam. See Crain v. Gov’t of Guam, 195 F.2d

414, 417 (9th Cir. 1952); see also United States v.

Cotto-Flores, 970 F.3d 17, 30-31, 50 (1st Cir. 2020).

As an unincorporated territory, Guam is subject to

the “general and plenary” power of the federal

government. Downes, 182 U.S. at 268. The island has

been an “indispensable” military asset since the

United States first took possession of it in 1898.

ANDREW TILGHMAN, CONG. RSCH. SERV., R47643,

GUAM: DEFENSE INFRASTRUCTURE AND READINESS 2

(2023); LANNY THOMPSON, IMPERIAL ARCHIPELAGO:

REPRESENTATION AND RULE IN THE INSULAR

TERRITORIES UNDER U.S. DOMINION AFTER 1898 22729 (Univ. Haw. Press, 2010). Beyond Guam’s strategic

location, this is due precisely to the unrestricted

power the United States enjoys over the island. See

Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285,

1286 (9th Cir. 1985) (“Since Guam is an

unincorporated territory enjoying only such powers as

may be delegated to it by Congress in the Organic Act

of Guam . . . the Government of Guam is in essence an

instrumentality of the federal government.”);

48 U.S.C. § 1423i; BOL 2024 FILING, supra, at 2.

Yet even as the federal government exercises

extraordinary power over the territory, the ordinary

mechanisms of federal accountability are lacking.

Though U.S. citizens, Guam’s people cannot vote for

President, see Att’y Gen. of Guam v. United States, 738

F.2d 1017, 1019 (9th Cir. 1984), have no Senators, and

have only a non-voting delegate to the House of

Representatives. 48 U.S.C. § 1711. And because

Guam’s territorial government—unlike the several

states and Indian tribes—is not a “sovereign[] distinct

from the United States,” Puerto Rico v. Sanchez Valle,

579 U.S. 59, 71 (2016), it cannot regulate military

actions within its territory as a state can. See

Sakamoto, 764 F.2d at 1286.

That structural reality has real consequences.

Federal military policy is not episodic or peripheral in

Guam; it is pervasive. Over 25% of the island is

occupied by the military, and that footprint is

expanding. TILGHMAN, supra, at 5; GOV’T OF GUAM

COMM’N ON DECOLONIZATION, GIHA MO'NA: A SELFDETERMINATION STUDY FOR GUÅHAN 331 (2019).

Congress authorized over $1 billion for military

construction projects on the 212-square-mile island in

fiscal year 2026, see National Defense Authorization

Act for Fiscal Year 2026, 139 Stat. 1551 § 4601, and is

considering nearly $2 billion more for 2027. See

S. 4784, 119th Cong. § 4601 (2026); H.R. 8800, 119th

Cong. § 4601 (2026).

It is not hyperbolic to say that federal decisions,

especially military decisions, shape every aspect of life

in Guam—affecting land, water, culture, health, and

livelihoods. Two sites in Guam are on the Superfund

National Priorities List, with U.S. EPA assessing

many other sites. See Superfund Site Search Results

for Guam, U.S. ENV’T PROT. AGENCY (accessed July 23,

2026), https://perma.cc/LQ3C-DB92. Many additional

contaminated

sites

are

documented—all

overwhelmingly linked to military activity. See, e.g.,

IAN S. HARTWELL ET AL., NAT’L OCEANIC &

ATMOSPHERIC ADMIN, TECH. MEM. NOS NCCOS 235,

AN ANALYSIS OF CHEMICAL CONTAMINANTS IN

SEDIMENTS AND FISH FROM COCOS LAGOON, GUAM 1

(2017);

U.S.

GOV’T

ACCOUNTABILITY

OFF.,

GAO/NSIAD-87-87,

HAZARDOUS

WASTE:

D OD

FACILITIES IN GUAM HAVING DIFFICULTY COMPLYING

WITH REGULATIONS 3-4 (1987); see also BOL 2020

FILING, supra, at 8. Military contamination is linked

to a range of adverse health consequences, including

elevated rates of cancer. See Julian Aguon, Blessed is

the

Spot,

PLACES

(Oct.

2025),

https://perma.cc/2SN2-AN38. And Guam’s principal

drinking water source, the Northern Guam Lens

Aquifer—above which the Air Force conducts

OB/OD—is already partially compromised by

contamination from a Superfund site at Andersen Air

Force Base. Superfund Site: Anderson Airforce Base,

U.S. ENV’T PROT. AGENCY (accessed July 17, 2026),

https://perma.cc/9S83-S6BK; see also AGENCY FOR

TOXIC SUBSTANCES & DISEASE REGISTRY, PUBLIC

HEALTH ASSESSMENT: ANDERSEN AIR FORCE BASE,

YIGO, GUAM 8 (Jan. 4, 2002).

The military also strains Guam’s civilian

infrastructure, including its electrical grid, roads,

water and sewage systems, housing, and labor force.

TILGHMAN, supra, at 30. The ever-expanding military

presence risks pushing these systems beyond

capacity. Id.; see also NAT’L RENEWABLE ENERGY

LAB’Y, GUAM: ENERGY BASELINE REPORT 26 (May

2024); GUAM HOUS. & URB. RENEWAL AUTH., GUAM

HOUSING STUDY AND NEEDS ASSESSMENT 43-46 (2020);

BOL 2024 FILING, supra, at 11-13.

For all this, Guam’s military enlistment rate far

exceeds that of any U.S. state. Indeed, in 2022,

“Guam’s enlistment per capita rate was more than

double the highest U.S. state’s rate.” U.S. GOV’T

ACCOUNTABILITY OFF., GAO-24-106364, VETERANS

AFFAIRS: ACTIONS NEEDED TO IMPROVE ACCESS TO

CARE IN THE U.S. TERRITORIES AND FREELY

ASSOCIATED STATES 2 (2024). More Chamorros have

died per capita in recent U.S. wars than any other

ethnic group. See Catherine Lutz, Bureaucratic

Weaponry and the Production of Ignorance in Military

Operations on Guam, 60 CURRENT ANTHROPOLOGY

108, 110 (2019). But because Guam is an

unincorporated territory, veterans must travel to the

states to access much of the veterans’ care they qualify

for and are ineligible for certain state-level programs

altogether. See U.S. GOV’T ACCOUNTABILITY OFF.,

VETERANS AFFAIRS, supra, at 11-26; Emma Moore &

Brent Peabody, Veteran Benefits in U.S. Territories,

CTR.

NEW

AM.

SEC.

(Feb.

25,

2020),

https://perma.cc/SG5P-Y75G.

All this to say Guam disproportionately bears the

burden of the United States’ national security. Yet

because of its subordinate political status, federal

actors are not accountable to Guam’s government or

its people through the ordinary political channels.

NEPA reduces that accountability gap. NEPA

requires federal agencies to look before they leap: to

consider environmental consequences, examine

reasonable alternatives, and internalize public

perspectives before committing to an action.

Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 349 (1989). NEPA may be procedural, but it

serves an essential accountability function. While it

does not dictate outcomes, NEPA ensures affected

communities can “play a role” in federal decisions that

directly affect them. Id. The NEPA process gives the

public a chance to bring place-based knowledge,

cultural concerns, and practical alternatives into

federal decision-making at a time when those

considerations can still matter. In Guam, it is often

the only structured opportunity to do so.

Guam’s lived experience shows that the NEPA

process makes a difference. For example, in 2007 the

Department of Defense (“DoD”, now Department of

War, “DoW”) published a Notice of Intent to prepare

an Environmental Impact Statement (“EIS”) for a

massive military build-up in Guam. 72 Fed. Reg.

10186-7 (Mar. 7, 2007). The proposed buildup would

expand the military footprint from 25% to 40% of the

island; bring 80,000 personnel to Guam over four

years, nearly doubling the island’s population; and

site a live-fire range complex over Pågat, a sacred

Chamorro village and burial ground dating from 700

AD. Id.; Pågat, NAT’L TR. HIS. PRES. (accessed July 21,

2026), https://perma.cc/GX8E-LGXL.

In 2009, the Navy published a Draft EIS (“DEIS”).

DEP’T OF NAVY, DRAFT ENVIRONMENTAL IMPACT

STATEMENT: GUAM AND CNMI MILITARY RELOCATION

(2009). Over the course of a 90-day public comment

period, the island, with a population of just 166,000,

submitted more than 10,000 comments and

testimonies raising substantive concerns about the

build-up’s impacts on environment, health, culture,

housing, infrastructure, and livelihoods. See Sarah A.

Topol, The America That Americans Forget, N.Y.

TIMES MAG. (Jul. 7, 2023), https://perma.cc/H82A9G3M; BOL 2020 FILING, supra, at 13. Concern was

especially strong about DOD’s proposal to site a livefire range complex at Pågat. BOL 2020 FILING, supra,

at 13. Guam’s collective engagement with the NEPA

process was unprecedented—said to be a DoD record.

Topol, supra.

Largely in response to that engagement, the

military agreed to relocate the live-fire range complex.

See id.; BOL 2020 FILING, supra, at 13. Concerns

about the speed and scale of the build-up raised

during the comment period by both the local public

and other federal actors also led DoD to substantially

revise its plan, reducing the total number of personnel

coming to Guam from 80,000 to under 10,000 and

limiting development to land already under federal

control. DEP’T OF NAVY, FINAL SUPPLEMENTAL

ENVIRONMENTAL IMPACT STATEMENT: GUAM AND THE

COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS

(2012 ROADMAP ADJUSTMENTS) ES-4 fig. ES-1 (2015).

These revisions mattered. The initial proposal was

expected to cause food, water, and housing shortages,

overwhelm civilian infrastructure, release unsafe

levels of carcinogenic air pollutants, compromise

integral cultural heritage, and destroy 71 acres of

coral reef, among other impacts. BOL 2020 FILING,

supra, at 11-12; DEP’T OF NAVY, DRAFT

ENVIRONMENTAL IMPACT STATEMENT, supra, at ES-35

to ES-36. NEPA’s public process enabled Guam’s

people to preserve the liveability of their island and

save a site of immense cultural significance even as

the military advanced its defense priorities.

Guam’s lived experience anecdotally confirms

what the data show: that NEPA’s public process can

and does “substantively affect agency decisions.”

Ashley Stava et al., Quantifying the Substantive

Influence of Public Comment on United States Federal

Environmental Decisions Under NEPA, 20 ENV’T RES.

LETTERS 1, 6 (2025). And the island’s level of

engagement—10,000 comments from a population of

166,000—shows that NEPA is nothing short of a

lifeline for Guam’s people.

Here, too, NEPA is a lifeline. The Air Force’s

decision to continue OB/OD, and its choice of where

and how to do so, will have huge impacts—on health

and well-being, on land and resources, and on culture

and heritage.

NEPA also has heightened importance in Guam

because of the multitude of overlapping military

projects there. In addition to active installations,

there were 58 active military construction projects in

Guam as of November 2024. Military Construction

Command Lists 58 Active Defense Projects on Guam,

PACIFIC

IS.

TIMES

(Nov.

2024),

https://perma.cc/3UDE-ACXW.

NEPA requires agencies to consider the

cumulative impacts of their proposed actions. Balt.

Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87,

106-07 (1983). These are impacts “‘which result[] from

the incremental impact of the action when added to

other past, present, and reasonably foreseeable future

actions regardless of what agency (Federal or nonFederal) or person undertakes such actions.’” Dep’t of

Transp. v. Pub. Citizen, 541 U.S. 752, 769 (quoting 40

C.F.R. § 1508.7).2

Unless otherwise stated, citations to NEPA and its

implementing regulations are to those in effect at the time of the

Air Force’s 2021 decision.

NEPA’s cumulative impact analysis ensures that

agencies and the public comprehend the real-world

consequences of proposed federal actions, which do

not impact the environment in isolation. Rather, “the

total impact from a set of actions may be greater than

the sum of the parts.” Klamath-Siskiyou Wildlands

Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 994 (9th

Cir. 2004). For example, in preparing an EIS for a new

military air-space designation in North Carolina,

NEPA required the Navy to consider the cumulative

impacts of that action together with pre-existing

projects, including “special use areas for military

training and operations, training routes for lowaltitude flight practice, and target ranges for

weaponry training.” Nat’l Audubon Soc’y v. U.S. Dep’t.

of Navy, 422 F.3d 174, 196 (4th Cir. 2005) (internal

citations omitted). That the “region” of impact was

“part of a National Wildlife Refuge heighten[ed] the

Navy’s statutory duty.” Id. at 197 (citing Kleppe v.

Sierra Club, 427 U.S. 390, 410 (1976)).

Similar cumulative impacts are at play here.

Tarague sits adjacent to the Mason Live-Fire Range

Complex, an 1,800-acre installation consisting of four

live-fire ranges. According to DoW’s planned use, over

6.7 million lead bullets will be fired from the complex

over the Northern Guam Lens Aquifer each year for

the foreseeable future. See DEP’T OF NAVY, FINAL

SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT,

supra, at 2-10 tbl. 2.2-4. Lead is an exceptionally

mobile contaminant with high potential to enter

groundwater systems, see R. Kelebemang et al.,

Speciation and Mobility of Lead in Shooting Range

Soils, 29 CHEMICAL SPECIATION & BIOAVAILABILITY

143, 149 (2017), a risk exacerbated by Guam’s highly

permeable karst limestone geology. See Nico

Goldscheider, A Holistic Approach to Groundwater

Protection and Ecosystem Services in Karst Terrains,

34 CARBONATES & EVAPORATES 1241, 1242, 1246-47

(2019); John W. Jenson et al., Karst Features of Guam

in Terms of a General Model of Carbonate Island

Karst, 63 J. CAVE & KARST STUD. 9, 12, 20-21 (2001).

OB/OD on Tarague thus likely compounds impacts of

the range complex (and contamination from the

Anderson Air Force Base Superfund site) on Guam’s

main drinking water source.

Tarague also abuts the Guam National Wildlife

Refuge, Ritidian Unit, which itself is overlaid by

Navy, Air Force, and Marine Corps installations. See

Guam National Wildlife Refuge, U.S. FISH & WILDLIFE

SERV.

(accessed

July

21,

2026),

https://perma.cc/9VES-JMEY; 33 C.F.R. § 334.1425.

Ritidian holds some of Guam’s last remaining pristine

limestone forest. BOL 2024 FILING, supra, at 14. This

unique ecosystem, largely lost elsewhere due to

military expansion, is essential habitat for many of

Guam’s endemic and critically endangered species,

including the åga (Mariana Crow), the sihek (Guam

Kingfisher), the ko’ko’ (Guam Rail), the fanihi

(Mariana fruit bat), and the ababang (Mariana eightspot butterfly). See GUAM NAT’L WILDLIFE REFUGE &

U.S. FISH & WILDLIFE SERV., GUAM NATIONAL

WILDLIFE REFUGE COMPREHENSIVE CONSERVATION

PLAN, 5-12 tbl. 3 (2009).

Because Tarague is nearby and some OB/OD

contaminants (e.g., PFAS, lead) are highly mobile, see

Nejumal Kannankeril Khadid & Sébastien Sauvé,

PFAS Behavior in the Environment: Transport

Pathways, Physicochemical Properties, and Emerging

Precursors, 2 NATURE EMERGING CONTAMINANTS 1, 2

(2026); Kelebemang et al., supra, at 29, the Air Force’s

OB/OD operations likely compound impacts to

Ritidian from other military activities, such as land

clearing and live-fire training. See DEP’T OF NAVY,

FINAL SUPPLEMENTAL ENVIRONMENTAL IMPACT

STATEMENT, supra, at 8-15.

In short, NEPA ensures that decision-makers and

the public fully comprehend both the direct and

additive effects of military projects on Guam’s unique

environment, communities, and culture. Here, NEPA

would have required the Air Force to take a “hard

look” at not only environmental but social, cultural,

historic, and economic impacts of continuing OB/OD

on Tarague before committing to that course, 42

U.S.C. § 4331(b); to consider them against the broader

slate of military projects in Guam, Balt. Gas & Elec.,

462 U.S. at 106-07; to evaluate reasonable

alternatives, including less sensitive locations, 42

U.S.C. § 4332(C)(iii); and to integrate public

perspectives. Robertson, 490 U.S. at 349. But because

the Air Force did not comply with NEPA, it did not

undertake any of these considerations before acting.

Id. at 350. Above all, the Air Force’s non-compliance

denied Guam’s public the opportunity to raise the

issues that matter most to them and excluded these

perspectives from its decision-making.

RCRA, while also important, does not provide the

same essential functions. Performed by the

permitting authority, RCRA review ensures that

proposed facilities comply with substantive standards

for the treatment, storage, and disposal of hazardous

waste. 42 U.S.C. § 6925(c).

RCRA thus requires Guam EPA to determine

whether the Air Force’s choice to continue OB/OD on

Tarague complies with hazardous waste disposal

requirements. It did not require the Air Force to

integrate environmental considerations into its own

decision-making or undertake a fulsome consideration

of less harmful alternatives. Nor did it allow Guam’s

people to have a say in the Air Force’s decision to

continue OB/OD on Tarague in the first place.

That distinction is decisive. To hold that RCRA

displaces NEPA would let the Air Force avoid the

process Congress intended agencies to undertake

before acting—and would do so in a place where

military decisions carry extraordinary consequences,

where

environmental

burdens

are

already

substantial, and where ordinary checks on federal

power are effectively absent.

II. RCRA Does Not Clearly Conflict With NEPA

NEPA’s plain language and this Court’s

precedents provide that an agency’s NEPA obligations

can only be displaced if they are in “clear and

unavoidable conflict” with its obligations under

another, directly operable statute. Flint Ridge Dev.

Co. v. Scenic Rivers Ass’n of Okla., 426 U.S. 776, 788

(1976). Guam EPA’s review of the Air Force’s RCRA

renewal application cannot displace the Air Force’s

NEPA obligations because they do conflict. To the

contrary, as the Ninth Circuit properly recognized,

the two processes are distinct but complementary.

Pet. App. 45a.

NEPA codifies the nation’s environmental policy:

“to use all practicable means and measures,

including financial and technical assistance,

in a manner calculated to foster and promote

the general welfare, to create and maintain

conditions under which man and nature can

exist in productive harmony, and fulfill the

social, economic, and other requirements of

present and future generations of Americans.”

42 U.S.C. § 4331(a).

In furtherance of that goal, the statute mandates

that “to the fullest extent possible . . . 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.” 42 U.S.C. § 4332.

It likewise requires “to the fullest extent possible”

that for any major federal action significantly

affecting the quality of the human environment, “all

agencies of the Federal Government shall” prepare

and make available to the public a detailed EIS.3 Id.

3 The agency directly prepares an EIS if its proposed action

will clearly have significant impacts. 40 C.F.R. § 1501.3.

Otherwise, it prepares an Environmental Assessment (“EA”) to

determine if significant impacts are likely. Id. If so, the agency

then prepare an EIS; if not, it issues a Finding of No Significant

Impact. Id. Regardless, the agency must complete this process

before committing to a major federal action.

The “fullest extent” phrasing is “neither accidental

nor hyperbolic.” Flint Ridge, 426 U.S. at 787. Its

purpose is “to make it clear that each agency of the

Federal Government shall comply with the directives

set out in [NEPA] [u]nless the existing law applicable

to such agency’s operations expressly prohibits or

makes full compliance with one of the directives

impossible.” Id. at 787-88. NEPA itself thus expressly

sets out the test for determining if and when another

statute

displaces

its

environmental

review

requirements. That is, as this Court has long

recognized, an agency’s NEPA obligations can only be

displaced if they are in “clear and unavoidable

conflict” with its duties under another statute. Id. at

788. Congress reaffirmed this understanding in 2023,

amending NEPA to explicitly provide that, as

concerns discretionary final agency actions, unless

subject to a categorical exclusion, an agency is

exempted from its obligations only if they are

“excluded pursuant to . . . another provision of law” or

“clearly and fundamentally conflict with the

requirements of another provision of law.” 137 Stat.

39 (2023) (codified at 42 U.S.C. § 4336(a)(2)-(3)).

This NEPA-specific test sits comfortably within

more general rules of statutory construction. As the

Court has explained, “[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 instead

strive to give effect to both.” Epic Sys. Corp. v. Lewis,

584 U.S. 497, 510 (2018). When two statutes cannot

be harmonized, only then, as Petitioners stress, may

the specific prevail over the general. See Pet’rs’ Br. 36.

But what Petitioners overlook is the “heavy burden”

borne by the party claiming that one statute displaces

another, and the “strong presumption that repeals by

implication are disfavored and that Congress will

specifically address preexisting law when it wishes to

suspend its normal operations in a later statute.” Epic

Sys., 584 U.S. at 510.

Petitioners have not carried their “heavy burden.”

The District Court and the Ninth Circuit agreed that

the “conflict exemption is not applicable in the instant

case.” Pet. App. 35a. They are correct. RCRA furthers

the policy objective set out in NEPA: to protect the

health of the nation’s environment and citizens. See

42 U.S.C. § 4331(a) and 42 U.S.C. § 6902(a). Far from

in “clear and unavoidable conflict,” the two review

processes are complementary. And Petitioners point

to no provision of law that excludes the Air Force’s

NEPA obligations.

An agency’s NEPA obligations can be displaced

where they are irreconcilable with its separate

obligations under another, directly operable statute.

Flint Ridge, 426 U.S. at 791. In Flint Ridge, the Court

found the Interstate Land Sales Full Disclosure Act’s

mandate that the Secretary of Housing and Urban

Development give effect to accurate statements of

record filed by private parties within 30 days

irreconcilable with NEPA because “[i]t is

inconceivable that an environmental impact

statement could, in 30 days, be drafted, circulated,

commen[t]ed upon, and then reviewed and revised in

light of the comments.” Id. at 788-89. Relevant was

the non-discretionary nature of the 30-day deadline,

as was the fact that such delay would directly conflict

with the purpose of the Act’s time limit: to prevent the

registration requirement from causing costly delays to

developers. Id. at 790-91.

But there is no such conflict between the Air

Force’s antecedent NEPA obligations and Guam

EPA’s subsequent review of its RCRA permit

application. Under NEPA, the agency proposing an

action is responsible for preparing the EIS, see 40

C.F.R. §§ 1501.7, 1508.1,4 and must do so by the time

“it makes a recommendation or report on a proposal

for federal action.” Aberdeen & Rockfish R.R. Co. v.

Students Challenging Regul. Agency Proc., 422 U.S.

289, 320 (1975) (interpreting 42 U.S.C. § 4332(C)).

The EIS “shall accompany the proposal through the

existing agency review processes,” presumably

including permitting processes.5 42 U.S.C. § 4332(C).

Here, the Air Force was required to carry out NEPA

review at least by the time it decided to continue

OB/OD on Tarague, as memorialized in its RCRA

renewal application. Guam EPA’s review began only

after that application was submitted. The processes

do not overlap let alone conflict. To the contrary, the

Air Force’s comprehensive review under NEPA could

have informed Guam EPA’s subsequent, more

targeted review under RCRA. See Seven Cnty.

Infrastructure Coal. v. Eagle Cnty., 605 U.S. 168, 177

(2025) (“Properly applied, NEPA helps agencies to

4 For actions not proposed by a federal agency, the agency

with greatest involvement prepares the EIS. 40 C.F.R. § 1501.7.

5 As Prutehi correctly explains, NEPA is intended to inform

federal permitting processes—a purpose acknowledged by DoW.

See Resp’t’s Br. 22.

make better decisions and to ensure good project

management.”); Resp’t’s Br. 36-37.

Alternatively, Petitioners contend that the Air

Force’s NEPA obligations are displaced on the basis of

regulatory history and practice. They point to a U.S.

EPA regulation providing that, when EPA is the

permitting authority, RCRA permits “‘are not subject

to the environmental impact statement provisions’ of

NEPA.” Pet’rs’ Br. 43 (quoting 40 C.F.R. § 124.9(b)(6)).

But as Prutehi rightly argues, this contention fails

for at least two reasons. Resp’t’s Br. 30-31. First, the

cited regulation is irrelevant because Guam EPA has

not adopted it in its RCRA permitting process. See 22

Guam Admin. R. & Regs. § 30110(h)(b)(6). Second,

and more fundamentally, the regulation exempts the

EPA as the “permitting authority” from NEPA

requirements when preparing the “draft permit.” 40

C.F.R. § 124.9(a)-(b). It does not affect the Air Force’s

separate NEPA obligations, as the agency proposing

to continue OB/OD, to conduct environmental review

“during the development of [the] proposal” put forth

in its renewal application. Kleppe, 427 U.S. at 409.

Petitioners have failed to demonstrate a conflict

between NEPA and RCRA. To the contrary, RCRA

advances NEPA’s broad policy goals and should be

interpreted “to the fullest extent possible,” to give

effect to NEPA. 42 U.S.C. § 4332. Displacement is

not warranted.

III. RCRA Is Not The Functional Equivalent Of

NEPA

Under Ninth Circuit precedent, NEPA obligations

may also be displaced by another environmental

statute’s review process if it is the “functional

equivalent” of the NEPA process. Pet. App. 35a. That

is, when another applicable statutory procedure is

“sufficiently similar” to render NEPA “superfluous,”

or else “sufficiently different” to reveal Congress’

intent to replace it. Id.

Assuming arguendo that the “functional

equivalent” test applies, Petitioners’ arguments fail

for much the same reasons. As the Ninth Circuit

correctly recognized, “NEPA and RCRA achieve

fundamentally different, but complementary, goals.”

Pet. App. 45a. NEPA governs federal decisionmaking; RCRA governs hazardous-waste permitting.

Each achieves its purpose through complementary

but distinct functions.

NEPA is procedural. It “does not mandate

particular results, but simply prescribes the

necessary process for an agency’s environmental

review of a project” Seven Cnty., 605 U.S. at 177.

Congress enacted NEPA’s review procedures in order

to achieve two “action-forcing purpose[s].” Robertson,

490 U.S. at 349. First, NEPA ensures that “the

agency, in reaching its decision, will have available,

and will carefully consider, detailed information

concerning significant environmental impacts.” Id.

Second, it “guarantees that the relevant information

will be made available to the larger audience that may

also play a role in both the decisionmaking process

and the implementation of that decision.” Id.

RCRA is substantive. It ensures that permitted

facilities are compliant with “rigorous safeguards and

waste management procedures.” City of Chicago v.

Env’t Def. Fund, 511 U.S. 328, 331 (1994); 42 U.S.C. §

6925(c)(1); 40 C.F.R. § 270.14(a).

Each achieves its purpose through a distinct

process. NEPA review is broader than RCRA review,

entails more extensive public engagement, and must

be carried out by the decision-making agency at the

earliest possible stage before committing to an action.

By contrast, where, as here, the applicant is a federal

agency, RCRA review only begins after that decisionmaking process is complete.

A. RCRA Review Begins Too Late

As the Ninth Circuit rightly recognized, a

“critical” difference between RCRA and NEPA is

timing. Pet. App. 7a.

NEPA

requires

agencies

“integrate”

environmental assessment at the “earliest possible

time to ensure that planning and decisions reflect

environmental values.” Andrus v. Sierra Club, 442

U.S. 347, 351 (1979). Its regulations provide that the

responsible agency is required to “commence

preparation of an [EIS] as close as practicable to the

time the agency is developing . . . a proposal.”

40 C.F.R. § 1502.5. The statute itself requires the final

statement at least by the time the agency “makes a

recommendation or report on a proposal for federal

action.” Aberdeen, 422 U.S. at 320. NEPA’s early

integration of environmental assessment and public

voices into agency decision-making ensures “that

important effects will not be overlooked or

underestimated only to be discovered after resources

have been committed or the die otherwise cast.”

Robertson, 490 U.S. at 349.

Because RCRA review begins after the permitting

agency receives an application, it is limited to “an

applicant’s settled decision to handle hazardous waste

in a particular fashion.” Pet. App. 38a. When the

applicant is a federal actor, RCRA review necessarily

fails to “internalize[]” environmental assessment and

public opinion in the agency’s decision-making

because it begins only once that process is complete.

Id. at 38a-39a. Indeed, because “environmental

concerns are not interwoven into the fabric of agency

planning, the ‘action-forcing’ characteristics of [NEPA

are] lost.” Andrus, 442 U.S. at 351.

B. RCRA Public Comment Is Not NEPA

Public Participation

Public engagement procedures are “at the heart of

the NEPA review process.” California v. Block, 690

F.2d 753, 770-71 (9th Cir. 1982). Integral to Congress’

policy objectives, they ensure the public can “play a

role” in federal decision-making that affects them.

Robertson, 490 U.S. at 349. And they serve as an

important mechanism of federal accountability,

providing the public “assurance that the agency has

indeed considered environmental concerns in its

decisionmaking.” Pub. Citizen, 541 U.S. at 768.

NEPA requires public engagement from the

outset. The responsible agency “must use a public

scoping process to decide the scope of actions,

alternatives, and impacts to be considered in an

environmental impact statement,” N. Alaska Env’t

Ctr. v. U.S. Dep’t of Interior, 983 F.3d 1077, 1093 (9th

Cir. 2020). The agency must then prepare a draft EIS,

issue notice, provide an adequate opportunity for

public review and comment, including public

hearings, and respond to all substantive public

comments before publishing a final EIS. See Pet. App.

8a-9a; Ctr. for Biological Diversity v. Bernhardt, 982

F.3d 723, 735 (9th Cir. 2020).

But where a permit applicant is a federal agency,

the RCRA process begins only after that agency has

committed to a specific waste disposal plan. So while

the public is able to provide comments on the

permitting decision and may request a public hearing,

40 C.F.R. § 124.11, RCRA does not guarantee them an

opportunity to participate in underlying agency

decision-making as NEPA does.

Empirically, NEPA’s public process matters. In

2025, U.S. Geological Survey researchers published a

comprehensive study analyzing the effect of public

comments on 108 EIS processes over 22 years. Stava

et al., supra, at 1. The study found that “public

comments resulted in substantive decision alterations

in 62% of cases, with 64% showing modifications to

alternatives, 42% showing modifications to mitigation

plans and 11% leading to the selection of an entirely

new preferred alternative.” Id. Alterations were made

in 78 of the 108 EISs evaluated and in 88% of those

cases, agencies attributed the changes to public

comments. Id. at 3. In 21 instances, agencies selected

an entirely new preferred alternative, attributing

100% of those changes to public comments. Id. Far

from the unsubstantiated assertions of some amici

that NEPA’s public process is “just more paperpushing,” Br. of Amici Curiae U.S. Chamber of

Commerce et al. 25; Br. of Amici Curiae State of West

Virginia et al. 23, the data show that NEPA’s robust

public process “can substantively affect agency

decisions.” Stava et al., supra, at 6.

These empirical findings are borne out by Guam’s

lived experience. As described in Section I, Guam

submitted over 10,000 public comments on a DEIS for

a major military build-up and the military responded

by substantially revising its proposal. It drastically

reduced the speed and scale of the build-up, which, as

originally planned would have compromised essential

resources and infrastructure, and relocated a planned

live-fire range complex slated for construction over

Pågat, an ancient Chamorro village of cultural and

historic significance.

The Air Force’s OB/OD practices on Tarague

implicate similar issues. The disposal site sits above

Guam’s only freshwater aquifer and primary drinking

water source. Like Pågat, Tarague is a place of

enormous cultural and historic importance to the

Chamorro people. Numerous ancestral burials lie as

close as the access road to the OB/OD site. See

RICHARD OLMO & WENDY GOODMAN, ARCHAEOLOGICAL

MONITORING AND EXCAVATION REPORT, TARAGUE

BEACH MWR CAMPGROUND ENHANCEMENT PROJECT

AND THE INSTALLATIONS RESTORATION PROGRAM

DRILLING PROJECT, ANDERSEN AIR FORCE BASE, GUAM

22 (Int’l Archaeology Rsch. Inst., 1993). Tarague also

houses plants essential to Chamorro medicine and is

a site of subsistence fishing.

The Air Force’s decision to continue OB/OD on

Tarague thus profoundly affects Guam’s people.

Although RCRA allowed the public to comment on

that decision, it, unlike NEPA, did not let them “play

a role” in the Air Force’s decision to continue OB/OD

in the first instance. Robertson, 490 U.S. at 349.

RCRA simply does not provide the same democratic

mechanism for public participation in federal

decision-making at the heart of NEPA review.

C. RCRA Review Is Different In Scope

NEPA review is comprehensive. The statute

“places upon an agency the obligation to consider

every significant aspect of the environmental impact

of a proposed action,” Balt. Gas & Elec., 462 U.S. at

97, encompassing not only ecological impacts, but also

historic, cultural, economic, and social effects. 42

U.S.C. § 4331(b); Wyoming v. U.S. Dep’t of Agric., 661

F.3d 1209, 1251 (10th Cir. 2011). RCRA review is

more technical and more focused. While it entails a

careful evaluation of hazardous waste disposal

specifications, it does not comprehensively consider

cultural, historic, economic, and social impacts as

NEPA does—all of which are deeply implicated by the

Air Force’s decision to continue OB/OD on Tarague.

NEPA also requires a more fulsome alternatives

analysis than RCRA. NEPA obligates the responsible

agency to consider “a reasonable range of alternatives

to the proposed agency action,” including a “no action

alternative.” 42 U.S.C. § 4332(C)(iii); see also Seven

Cnty., 605 U.S. at 177.

Alternatives analysis sits, along with public

engagement, “at the heart” of the NEPA process.

W. Watersheds Project v. U.S. Bureau of Land Mgmt.,

76 F.4th 1286, 1290 (10th Cir. 2023); Nevada v. Dep’t.

of Energy, 457 F.3d 78, 87 (D.C. Cir. 2006); N. Alaska

Env’t Ctr. v. Kempthorne, 457 F.3d 969, 978 (9th Cir.

2006). It is critical to Congress’ goal of ensuring

environmentally-informed decision-making. See Ctr.

for Biological Diversity v. U.S. Bureau of Land Mgmt.,

141 F.4th 976, 993-94 (9th Cir. 2025) (“In the end, the

touchstone of our review is whether an EIS’s selection

and discussion of alternatives fosters informed

decision-making and informed public participation.”);

Lowman v. Fed. Aviation Admin., 83 F.4th 1345,

1349-50 (11th Cir. 2023). The “no-action” alternative

is particularly critical, providing a “baseline” against

which decision-makers and the public can gauge the

proposed action’s impacts. Ctr. for Biological Diversity

v. U.S. Dep’t of Interior, 72 F.4th 1166, 1185 (10th Cir.

2023). “The existence of a viable but unexamined

alternative renders the environmental review

conducted under NEPA inadequate.” Earth Env’t Def.

Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850,

877 (9th Cir. 2022).

satisfy

NEPA’s

alternatives-analysis

requirement, the responsible agency must “at least

consider a preferred alternative and a no action

alternative, and give full and meaningful

consideration to all reasonable alternatives.” Earth

Island Inst. v. U.S. Forest Serv., 87 F.4th 1054, 1065

(9th Cir. 2023). NEPA’s participatory process lets the

public raise alternatives the agency may not have

considered. The agency need only consider a range of

alternatives that are feasible and meet project needs,

but it must “explain its reasoning for eliminating an

alternative.” Kempthorne, 457 F.3d at 978.

RCRA, as the Ninth Circuit rightly held, “does not

demand the same kind of in-depth analysis of

alternatives, and so does not require the permit

applicant to give the full and meaningful

consideration

that

[NEPA]

would

require.”

Pet. App. 39a.

The importance of NEPA’s “in-depth” alternative

analysis is at its zenith here. OB/OD is a dangerous

practice posing substantial risks to human and

environmental health. See NAT’L ACADS. OF SCI.,

ENG’G, & MED., supra, at 30. Tarague Beach, where

the Air Force conducts its OB/OD operations, is a

culturally and ecologically sensitive area. The Air

Force decided to continue OB/OD on Tarague despite

known risks and without considering less harmful

alternatives.

NEPA required the Air Force to do more. For

instance, it would require the Air Force to consider

alternative sites for waste disposal—ones less critical

to Guam’s water and food security, culture, and

endangered species. At the very least, it would allow

the public to suggest such alternatives and require the

Air Force to explain why it opted to exclude them.

NEPA would also require the Air Force to consider

alternative disposal methods. Between the Air Force’s

2018 permit approval and its 2021 renewal

application, federal and scientific authorities

identified viable, safe alternatives to OB/OD for the

vast majority of conventional waste munitions, bulk

energetics, and associated wastes. NAT’L ACADS. OF

SCIS., ENG’G, & MED., supra, at 4. In 2019, the

National Academies of Sciences, Engineering, and

Medicine found no “significant technical, safety, or

regulatory barriers to full-scale deployment” of these

alternative technologies. Id. U.S. EPA found the same

for energetic hazardous wastes. U.S. ENV’T PROT.

AGENCY, ALTERNATIVE TREATMENT TECHNOLOGIES TO

OPEN BURNING AND OPEN DETONATION OF ENERGETIC

HAZARDOUS WASTES 12 (2019).

The Air Force did not address these developments

in its 2021 renewal application, instead copying a

brief discussion of technological alternatives from its

2018 application. Pet. App. 56a. So even if Guam EPA

were to deny the renewal on this basis,6 RCRA would

6 As Petitioners note, see Pet’rs’ Br. 38, RCRA regulations

prohibit OB/OD except for waste explosives that “cannot safely

be disposed of through other modes of treatment,” 40 C.F.R. §

265.382, and the statute requires the permitting agency to

consider “improvements in the state of control and measurement

technology.” 42 U.S.C. § 6925(c)(3). Petitioners assert that these

permitting considerations displace the need for the Air Force to

conduct its own ex-ante alternatives analysis under NEPA. But

the consideration of other modes of treatment is only required in

the case of OB/OD—not any other form of waste disposal. And

the permitting authority’s consideration of improved control and

measurement technology applicable to an applicant’s selected

waste disposal plan does not displace the responsible agency’s

obligations to consider less impactful alternatives before

committing to a course of action. Nor does it satisfy the scope of

alternatives analysis required by NEPA, which encompasses

siting and no action alternatives as well as alternatives raised by

still not achieve NEPA’s requirement that the Air

Force integrate environmental assessment into its

own decision-making before it committed to

continuing OB/OD. Andrus, 442 U.S at 350 (“The

thrust of [NEPA review] is [] that environmental

concerns be integrated into the very process of agency

decision-making.”). Moreover, neither RCRA nor its

regulations require analysis of a no-action alternative

or alternative project sites.

In short, the scope of RCRA is different to that of

NEPA; the two are not “functional equivalents.”

Under RCRA, Guam EPA’s review has necessarily

been limited to the “single track approach” selected by

the Air Force. Pet. App. 39a. It has not analyzed

alternative sites or a no-action alternative, nor has it

comprehensively assessed the social, cultural, or

historic impacts of the Air Force’s chosen approach.7

So while RCRA fulfills its own purpose of ensuring

compliance

with

hazardous

waste

disposal

the public and requires comparison of a broader range of impacts,

including social, cultural, and historic impacts.

7 The difference between RCRA and NEPA is apparent even

here, where the proposed federal action is a stand-alone

hazardous-waste practice. In other cases, waste disposal may be

but one component of a federal action. For example, the wastedisposal facilities of a new Marine Corps base in Guam are

“potentially subject to RCRA.” See DEP’T OF NAVY, FINAL

ENVIRONMENTAL IMPACT STATEMENT: GUAM AND CNMI

MILITARY RELOCATION ES-1 to ES-2 (2010). It would be difficult

to reconcile NEPA’s text and purpose with a rule exempting an

entire federal construction project from NEPA merely because

one component requires RCRA review, yet that is precisely what

Petitioners propose.

requirements, it does not achieve NEPA’s

complementary but distinct “action-forcing” function

integrating

comprehensive

environmental

assessment from the outset of agency decisionmaking.8 Robertson, 490 U.S. at 349.

8 Entirely relevant is that this case concerns the Air Force’s

decision to continue OB/OD on Tarague Beach, not Guam EPA’s

decision to grant or deny the Air Force’s renewal application.

While Petitioners point to a single decision finding that NEPA

could be displaced by RCRA, that case concerned whether a

permitting agency must undertake NEPA review before issuing

a permit to a private operator of a hazardous waste facility. The

court reasoned that NEPA could be displaced by applying a rule

that “an agency need not comply with NEPA where the agency is

engaged primarily in an examination of environmental questions

and where the agency’s organic legislation mandate[s] specific

procedures for considering the environment that are functional

equivalents of the impact statement process.” State of Alabama

ex rel. Siegelman v. U.S. Env’t Prot. Agency, 911 F.2d 499, 504

(11th Cir. 1990) (emphasis added). RCRA review is not the

functional equivalent of NEPA review. But even if it was,

Siegelman would not control because the Air Force is not an

agency “engaged primarily in an examination of environmental

questions” nor is RCRA the Air Force’s “organic legislation.”

CONCLUSION

Federal decisions, especially military decisions,

have profound consequences in Guam. But because

Guam is an unincorporated territory, these are not

subject to ordinary checks on federal power. NEPA is

often the sole mechanism of federal accountability

available in Guam. RCRA does not serve the same

function. To hold that Guam EPA’s RCRA permitting

process absolves the Air Force of its NEPA obligations

would eliminate one of the only channels through

which Guam’s people have a voice in federal decisionmaking that affects them.

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

JULIAN AGUON

Counsel of Record

AUTUMN BORDNER

BLUE OCEAN LAW, P.C.

446 Marine Corps Drive

Suite 201

Hagåtña, Guam 96910

(671) 472-2583

julian@blueoceanlaw.com

Counsel for Amicus Curiae

July 24, 2026

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.