Amicus Curiae Brief — Department of the Air Force, et al., Petitioners v. Prutehi Guahan, fka Prutehi Litekyan
Supreme Court briefJul 27, 2026
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No. 25-579
IN THE
Supreme Court of the United States
————
DEPARTMENT OF THE AIR FORCE, ET AL.,
v.
Petitioners,
PRUTEHI GUÅHAN,
————
Respondent.
On Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
————
BRIEF OF THE HON. JARED HUFFMAN,
JULIA BROWNLEY, DEBBIE DINGELL,
AND PABLO JOSÉ HERNÁNDEZ, MEMBERS
OF CONGRESS, AS AMICI CURIAE
IN SUPPORT OF RESPONDENT
————
CALE JAFFE
Counsel of Record
DIRECTOR, ENVIRONMENTAL LAW AND
COMMUNITY ENGAGEMENT CLINIC
UNIVERSITY OF VIRGINIA SCHOOL OF LAW
580 Massie Road
Charlottesville, VA 22903
(434) 924-4776
cjaffe@law.virginia.edu
Counsel for Amici Curiae
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................
ii
INTRODUCTION AND STATEMENT OF
INTEREST OF AMICI CURIAE ........................
1
ARGUMENT ........................................................
3
I. CONGRESS ENACTED NEPA IN
1969 TO SUPPLEMENT EXISTING
ENVIRONMENTAL POLICIES AND
COORDINATE REVIEWS .......................
3
A. NEPA’s Statutory Framework ............
5
B. Litigation Affirming NEPA’s Supplementary Role .......................................
10
RECENT CASELAW AND CONGRESS’S
AMENDMENTS HAVE LEFT NEPA’S
FOCUS ON SUPPLEMENTAL, CROSSAGENCY COORDINATION INTACT ......
13
A. Congressional Activity Confirming
That NEPA Supplements RCRA..........
13
B. Seven County Infrastructure Coalition
Buttresses Enforcement of NEPA
Here......................................................
16
CONCLUSION ....................................................
18
APPENDIX A: Environmental Laws Prior to
1969.................................................................
1a
APPENDIX B: Current Statutes with NEPA
Restrictions/Exemptions ................................
5a
II.
(i)
ii
TABLE OF AUTHORITIES
CASES
Page(s)
Bittner v. United States,
598 U.S. 85 (2023) .....................................
15
Chemical Weapons Working Group
v. U.S. Department of the Army,
935 F. Supp. 1206 (D. Utah 1996) ............
10
Concerned About Trident v. Rumsfeld,
555 F.2d 817 (D.C. Cir. 1976) ...................
10
Defenders of Wildlife
v. U.S. Department of the Navy,
733 F.3d 1106 (11th Cir. 2013) .................
11
National Association of Home Builders
v. Defenders of Wildlife,
551 U.S. 644 (2007) ................................... 7, 16
Seven County Infrastructure Coalition
v. Eagle County, Colorado,
605 U.S. 168 (2025) ............................... 4, 13, 16
Sierra Club v. Gates,
499 F. Supp. 2d 1101 (S.D. Ind. 2007) .....
11
Watt v. Alaska,
451 U.S. 259 (1981) ...................................
7
STATUTES AND REGULATIONS
15 U.S.C. § 793(c)(1) .....................................
14
33 U.S.C. § 1371(c) .......................................
14
42 U.S.C. § 4331(a), NEPA § 101(a) ............
9
42 U.S.C. § 4331(b), NEPA § 101(b) ............
9
42 U.S.C. § 4332, NEPA § 102 .....................
4
iii
TABLE OF AUTHORITIES—Continued
Page(s)
42 U.S.C. § 4332(C), NEPA § 102(c) ............ 3, 17
42 U.S.C. § 4335, NEPA § 105 .....................
6
42 U.S.C. § 4336a ......................................... 13, 14
42 U.S.C. § 4336(a)(2)–(3) ............................
14
43 U.S.C. § 1652 ...........................................
14
Fiscal Responsibility Act of 2023 §§ 107(e),
107(g), Pub. L. No. 118-5, 137 Stat. 10,
41-42 ..........................................................
13
Howard Coble Coast Guard and Maritime
Transportation Act of 2014 § 608(b)(4),
Pub. L. 113-281, 128 Stat. 3022, 3063
(Dec. 18, 2014) ...........................................
15
National Defense Authorization Act for
Fiscal Year 2014 § 2966(c), Pub. L. 11366, 127 Stat. 672, 1043 (Dec. 26, 2013) ...
15
Pub. L. No. 114-328, § 1421, 130 Stat.
2000, 2570-2571 (Dec. 23, 2016) ...............
17
Resource Conservation and Recovery Act
of 1976 (RCRA), 42 U.S.C. § 6901 et seq. .
2
Sikes Act of 1960, Pub. L. 86-797, 74 Stat.
1052 (Sept. 15, 1960) ................................
7
Solid Waste Disposal Act, Pub. L. No. 89272, 79 Stat. 997 (Oct. 20, 1965) ..............
7
§ 202(a)(4), 79 Stat. 997 ............................
7
§ 203(1), 79 Stat. 998 ................................
7
§ 204(a), 79 Stat. 998-99 ...........................
7
40 C.F.R. § 124.9(b)(6) ..................................
4
iv
TABLE OF AUTHORITIES—Continued
COURT FILINGS
Page(s)
Brief for 30 Members of the U.S. House and
Senate as Amici Curiae in Support of
Respondents, Case No. 23-975, Seven
County Infrastructure Coalition v. Eagle
County, Colorado (filed Oct. 25, 2024) .....
1
LEGISLATIVE MATERIALS
115 Cong. Rec. 29053 (1969) ........................
6
115 Cong. Rec. 29084 (1969) ........................
9
115 Cong. Rec. 29085 (1969) ........................
9
115 Cong. Rec. 40419 (1969) ........................
8
115 Cong. Rec. 40423 (1969) ........................
8-9
Congressional White Paper on A National
Policy for the Environment (Comm.
Print. 1968) ...............................................
8
Joint House-Senate Colloquium to Discuss
a National Policy for the Environment:
Hearing Before the Comm. on Interior
and Insular Affs. U.S. S. and the Comm.
on Science and Astronautics U.S. H.R.,
90th Cong. 15 (1968) .................................
8
National Environmental Policy: Hearing
Before the Comm. on Interior and Insular
Affs. on S. 1075, S. 237, and S. 1752, 91st
Cong. 27 (1969) .........................................
2, 5
S. Rep. No. 91-296 (1969) ......................... 5, 6, 8, 9
v
TABLE OF AUTHORITIES—Continued
NEPA DOCUMENTS
Page(s)
Department of the Army, Final Second
Supplemental Environmental Impact
Statement for the Storage and Ultimate
Disposal of the European Chemical
Munition Stockpile (June 1990), https://
www.osti.gov/servlets/purl/6949564 ........
12
United States Army, Final Environmental
Impact Statement, Realignment of Pueblo
Depot Activity, Colorado (Aug. 1991),
https://apps.dtic.mil/sti/tr/pdf/ADA38610
9.pdf ...........................................................
12
U.S. Army Corps of Engineers, Final
Environmental Assessment for Installing
and Operating a Thermal Treatment
Facility, Holston Army Ammunition
Plant, TN (Mar. 2020), https://cswab
.org/wp-content/uploads/2020/10/Holston
-Army-Environmental-Assessment-Ther
mal-Treatment-Facility-Final-March2020.pdf .....................................................
12
OTHER AUTHORITIES
A. Dan Tarlock, The Story of Calvert Cliffs,
in ENVIRONMENTAL LAW STORIES (R.
Lazarus & O. Houck, eds. 2005) ...............
4
Matthew J. Lindstrom & Zachary A. Smith,
THE NATIONAL ENVIRONMENTAL POLICY
ACT:
JUDICIAL
MISCONSTRUCTION,
LEGISLATIVE INDIFFERENCE, & EXECUTIVE
NEGLECT (Texas A&M University Press
2001) ..........................................................
4
vi
TABLE OF AUTHORITIES—Continued
Page(s)
National
Academies
of
Sciences,
Engineering, and Medicine, ALTERNATIVES
FOR
THE
DEMILITARIZATION
OF
CONVENTIONAL MUNITIONS (2019), https://
www.nationalacademies.org/projects/DEP
S-BAST-17-01 ............................................ 3, 17
Richard
Lazarus,
The
National
Environmental Policy Act in the U.S.
Supreme Court: A Reappraisal and A
Peek Behind the Curtains, 100 GEO. L.J.
1507 (2012) ................................................
5
THE TENNESSEE BLUE BOOK (20252026 ed.) ....................................................
8
1
INTRODUCTION AND STATEMENT OF
INTEREST OF AMICI CURIAE 1
Amici curiae are Members of Congress 2 who have
debated or voted on amendments to the National
Environmental Policy Act of 1969 (NEPA) over many
years—debates which now inform their perspective on
the proper role for NEPA in the underlying case. All
are members of the House Natural Resources
Committee, which has primary jurisdiction over
NEPA in the House.
Amici curiae are:
•
The Honorable Jared Huffman, who represents
California’s 2nd Congressional District. He was
first elected to Congress in November 2012, is a
Member of the Committee on Transportation
and Infrastructure, and serves as the Ranking
Member on the Committee on Natural Resources
in the 119th Congress.
•
The Honorable Julia Brownley, who represents
California’s 26th Congressional District. She
was first elected to Congress in November 2012,
is a Member of the Committee on Transportation
and Infrastructure and the Committee on
Pursuant to Rule 37.6, counsel for amici curiae certifies that
no person or entity other than amici curiae and their counsel
authored this brief in whole or in part. No person other than
amici curiae and their counsel made a monetary contribution to
its preparation or submission of the brief.
1
This filing incorporates by reference and builds upon an
earlier amicus brief, which addressed similar questions of
statutory background. See Brief for 30 Members of the U.S.
House and Senate as Amici Curiae in Support of Respondents,
Case No. 23-975, Seven County Infrastructure Coalition v. Eagle
County, Colorado (filed Oct. 25, 2024).
2
2
Natural Resources, and serves as the Ranking
Member on the House Veterans’ Affairs
Subcommittee on Health in the 119th Congress.
•
The Honorable Debbie Dingell, who represents
Michigan’s 6th Congressional District. She was
first elected to Congress in November 2014, and
is a Member of the Committee on Energy and
Commerce and the Committee on Natural
Resources in the 119th Congress.
•
The Honorable Pablo José Hernández, Member
of Congress, who represents Puerto Rico as
Resident Commissioner. He was first elected to
Congress in November 2024, and is a Member of
the Committee on Homeland Security and the
Committee on Natural Resources in the 119th
Congress.
Amici curiae file this brief to underline two key
points drawn from their knowledge of Congress and
the legislative process. First, at the time NEPA was
drafted, there was a bevy of federal environmental law
already on the books, although these laws were
perceived by our congressional predecessors as “too
narrow, too limited, and too specialized.” National
Environmental Policy: Hearing Before the Comm. on
Interior and Insular Affs. on S. 1075, S. 237, and
S. 1752, 91st Cong. 27 (1969). NEPA sought to
supplement but not supplant other environmental
statutes. Second, as NEPA and other laws have been
amended in recent years, NEPA’s focus on supplemental environmental coordination has remained.
To be sure, Congress has, from time to time, drafted
exemptions from NEPA’s procedures. But neither the
Resource Conservation and Recovery Act of 1976
(RCRA), 42 U.S.C. § 6901 et seq., nor the Air Force’s
project for the destruction of unexploded munitions on
3
the island of Guam have been among those exemptions. Amici curiae thus file this brief in support
of Respondent and in defense of NEPA’s supplementary role to the RCRA permitting process.
ARGUMENT
I. CONGRESS ENACTED NEPA IN 1969 TO
SUPPLEMENT
EXISTING
ENVIRONMENTAL POLICIES AND COORDINATE
REVIEWS.
The Department of the Air Force’s decision to
commit to one particular option for the destruction of
hazardous-waste munitions on Guam—while rejecting
alternatives highlighted in a congressionally mandated report from the National Academies of Sciences,
Engineering, and Medicine 3—was a “major Federal
action[]” triggering NEPA. 42 U.S.C. § 4332(C), NEPA
§ 102(C). Amici curiae therefore ask this Court to
uphold the judgment of the Court of Appeals and
reaffirm that Petitioners erred in failing to evaluate
the National Academies Report in the earliest stages
of their decisionmaking processes. Had Petitioners
followed NEPA, the most cost-effective, gold-standard
recommendations from the National Academies could
have been put into practice.
That Petitioners also had to apply to a non-federal
authority (Guam EPA) for another permit does not
relieve them of their obligation to prepare an
See National Academies of Sciences, Engineering, and
Medicine, ALTERNATIVES FOR THE DEMILITARIZATION OF
CONVENTIONAL MUNITIONS (2019), https://www.nationalacad
emies.org/projects/DEPS-BAST-17-01 (hereinafter “National
Academies Report”).
3
4
Environmental Impact Statement (EIS). 4 The statutory background on NEPA confirms as much. The
EIS was conceived as a process that would lead to
“[f]ewer environmentally controversial decisions...
because ecologically injurious projects would be denied
serious consideration in their early stages.” Matthew
J. Lindstrom & Zachary A. Smith, THE NATIONAL
ENVIRONMENTAL
POLICY
ACT:
JUDICIAL
MISCONSTRUCTION, LEGISLATIVE INDIFFERENCE, &
EXECUTIVE NEGLECT, at 39 (Texas A&M University
Press 2001) (emphasis added). In other words, NEPA
would help ensure “the disclosure of ‘bad’ projects that
should be nipped in the bud.” A. Dan Tarlock, The
Story of Calvert Cliffs, in ENVIRONMENTAL LAW
STORIES, at 87 (R. Lazarus & O. Houck, eds. 2005).
The reason to nip bad ideas “in the bud” is to prevent
federal agencies—and in turn, American taxpayers—
from wasting money on imprudent expenditures when
better alternatives exist. For the cost-saving benefits
of NEPA to accrue, the EIS needs to occur at the
earliest possible moment, before “any irreversible and
irretrievable commitments of Federal resources” have
been made. See 42 U.S.C. § 4332, NEPA § 102. See
also Seven County Infrastructure Coalition v. Eagle
County, Colorado, 605 U.S. 168, 177 (2025) (“Properly
applied, NEPA helps agencies to make better decisions
and to ensure good project management”).
Petitioners cite to 40 C.F.R. § 124.9(b)(6), which is a U.S.
Environmental Protection Agency (EPA) regulation addressing
preparation of the administrative record for certain draft permits
“when EPA is the permitting authority.” See Br. for Pet’rs, at
44-45. As the U.S. EPA is neither the permit applicant nor the
permit issuer, the citation is inapplicable.
4
5
A. NEPA’s Statutory Framework.
To explain why Congress needed a statute like
NEPA, it is critical to understand the state of
environmental law prior to 1969. Environmental
policy in that era was “too narrow, too limited, and too
specialized.” National Environmental Policy: Hearing
Before the Comm. on Interior and Insular Affs. On
S. 1075, S. 237, and S. 1752, 91st Cong. 27 (1969).
Prior to NEPA, there had been no mandate calling
for interagency coordination or collaboration. What
NEPA did, then, was “supplement existing, but
narrow and fractionated, congressional declarations”
by establishing an “orderly, rational, and constructive”
procedure for considering the environment in agency
decisionmaking. S. Rep. No. 91-296, at 9 (1969). See
also Richard Lazarus, The National Environmental
Policy Act in the U.S. Supreme Court: A Reappraisal
and A Peek Behind the Curtains, 100 GEO. L.J. 1507,
1513 (2012) (“Senator Henry ‘Scoop’ Jackson and his
committee staff are widely credited for promoting the
central insight that better environmental results could
be achieved by merging the holistic teachings of what
was then dubbed ‘ecosystem ecology’ with ‘systems
analysis’ for more rational, systematic governmental
decision-making.”).
By the time President Nixon signed NEPA into law
on January 1, 1970, at least forty-five federal environmental and natural-resource statutes were already on
the books, spanning wildlife protection, water and
air quality, public land management, and pollution
control. See Appendix A: Environmental Laws Prior
to 1969. But these laws offered only a patchwork of
environmental protections. The proverbial left hand
often didn’t know what the right hand was doing. No
statute “provide[d] an effective or orderly manner to
6
consider all forms of environmental degradation,”
particularly those which might cut across geography
and jurisdiction. 115 Cong. Rec. 29053 (1969).
NEPA’s text was crafted to remedy this problem.
The statutory language confirms that Congress intended NEPA to operate alongside an existing body of
environmental law—not to replace it, and not to be
displaced by it—but to help coordinate it. “The policies
and goals set forth in this chapter are supplementary
to those set forth in existing authorizations of Federal
agencies.” 42 U.S.C. § 4335, NEPA § 105. This text
demands production of an EIS as a supplement to
other laws like RCRA.
Petitioners attempt to wriggle out of this obligation
by claiming NEPA should be reinterpreted to change
with the times. They argue that as a matter of
“common sense, the specific governs the general” when
it comes to interpreting the old NEPA language. Br.
of Pet’rs, at 4. Not only does this argument ignore the
plain, black-letter text of the statute, it also flouts the
history of environmental law in the United States,
which tells a different story. Congress enacted NEPA
against a backdrop already crowded with highly
specialized environmental legislation. Rather than
permitting these narrower, specific statutes to override NEPA’s more general provisions, Congress structured NEPA to operate in a supplemental capacity
alongside them. The Senate Committee Report on
Section 105 states that “[t]he measure is designed to
supplement existing, but narrow and fractionated,
congressional declarations of environmental policy.”
S. Rep. No. 91–296, at 9 (1969).
One of the statutes NEPA was drafted to supplement was the Solid Waste Disposal Act of 1965—a
predecessor statute to RCRA—which sought to rem-
7
edy “inefficient and improper methods of disposal of
solid wastes [that] result in scenic blights, create
serious hazards to the public health, including pollution of air and water resources.” Pub. L. No. 89-272,
79 Stat. 997 (Oct. 20, 1965), Solid Waste Disposal Act
§ 202(a)(4). The law, among other things, assigned
roles to the Secretary of Health, Education and
Welfare and the Secretary of the Interior. Id. at 79
Stat. 998, Solid Waste Disposal Act § 203(1). And it
also sought to foster cooperation among “appropriate
public (whether Federal, State, interstate, or local)
authorities … relating to the operation and financing
of solid-waste disposal programs ….” Id. at 79 Stat.
998-99, Solid Waste Disposal Act § 204(a).
Even before the Solid Waste Disposal Act, Congress
had adopted the Sikes Act of 1960, which directed the
“Secretary of Defense … to carry out a program of
planning, development, maintenance and coordination
of wildlife, fish and game conservation and rehabilitation in military reservations ….” Pub. L. 86-797,
74 Stat. 1052 (Sept. 15, 1960). Laws like RCRA
evolved out of the very statutory frameworks (Sikes
Act, Solid Waste Disposal Act) that NEPA had been
drafted to supplement. Subsequent enactment of
RCRA cannot possibly be read as an implicit repeal of
NEPA’s environmental review requirements. See
National Association of Home Builders v. Defenders of
Wildlife, 551 U.S. 644, 662 (2007) (“While a later
enacted statute … can sometimes operate to amend or
even repeal an earlier statutory provision … ‘repeals
by implication are not favored’ and will not be
presumed unless the ‘intention of the legislature to
repeal [is] clear and manifest.’”) (quoting Watt v.
Alaska, 451 U.S. 259, 267 (1981)) (alteration in
original). Laws analogous to RCRA were already on
the books when NEPA was added to the mix.
8
Despite the presence of these early environmental
laws, many agencies—including Petitioners here—did
not “have a mandate within the body of their enabling
laws to allow them to give adequate attention to
environmental values,” S. Rep. No. 91-296, at 14
(1969), much less the “clear authority to assure
consideration of environmental factors which conflict
with other Federal objectives,” 115 Cong. Rec. 40419
(1969). Then-Secretary of the Interior Stewart Udall
testified to the seriousness of this problem in 1968,
using the example of the Tennessee Valley Authority
(TVA), which thought “their mission was to produce
electric power as cheaply as possible... and that if this
destroyed resources, rivers and hillsides, and ruined
parts of the country outside the TVA area for all time,
this was none of their business.” Joint House-Senate
Colloquium to Discuss a National Policy for the
Environment: Hearing Before the Comm. on Interior
and Insular Affs. U.S. S. and the Comm. on Science
and Astronautics U.S. H.R., 90th Cong. 15 (1968). 5
Because “[e]nvironmental problems cut across many
existing operational organizations” and cannot be in
“the exclusive bailiwick of any committee of Congress
nor department of Government,” NEPA was drafted to
provide “all agencies and all Federal officials with a
legislative mandate and a responsibility to consider
the consequences of their actions on the environment.”
Congressional White Paper on A National Policy for
the Environment 12 (Comm. Print. 1968); 115 Cong.
Udall’s concern stood even as TVA would be obligated to abide
by state environmental regulations. See THE TENNESSEE BLUE
BOOK, at 350 (2025-2026 ed.) (“The Tennessee General Assembly
had previously created the Stream Pollution Control Board in
1945, making Tennessee the first state in the South to pass a
water pollution control law.”), https://sos.tn.gov/blue-book.
5
9
Rec. 40423 (1969); S. Rep. No. 91-296, at 14 (1969).
That is, agencies would take an “interdisciplinary,
team approach” to assess the consequences of federal
development projects. 115 Cong. Rec. 29085 (1969).
“Many of the environmental controversies” of the day
were “caused by the failure to consider all relevant
points of view in the planning and conduct of Federal
activities.” S. Rep. No. 91-296, at 20 (1969). Congress
enacted NEPA to end the practice of agencies
operating in isolated silos.
The text of NEPA mandates interagency coordination: “[I]t is the continuing policy of the Federal
Government, in cooperation with State and local
governments... to use all practicable means and
measures... to create and maintain conditions under
which man and nature can exist in productive
harmony.” 42 U.S.C. § 4331(a), NEPA § 101(a).
Explaining the intent of this language, amici curiae’s
congressional predecessors stated that “the activities
and resources of the Federal Government shall be
improved and coordinated to... attain certain broad
national goals in the management of the environment.” 115 Cong. Rec. 29084 (1969). Describing the
intent of Section 101(b), they similarly noted that
“environmental evaluation” should not be restricted to
“the province of a particular agency.” 115 Cong. Rec.
29085 (1969).
The Congress that enacted NEPA thus envisioned it
as a meaningful and responsive mandate for interagency cooperation and coordination, supplementing
other environmental laws.
10
B. Litigation Affirming NEPA’s Supplementary Role.
NEPA’s supplementary and interagency focus is
reflected in decades of litigation on the implementation of the Act—cases which highlight the Department of Defense’s own understanding that issuance
of other environmental permits does not obviate the
need for coordinated reviews under NEPA.
Shortly after NEPA was enacted, its applicability to
issues of national defense was tested in Concerned
About Trident v. Rumsfeld, 555 F.2d 817 (D.C. Cir.
1976). There, the Navy argued that NEPA should not
apply “to strategic military decisions.” Id. at 823. The
D.C. Circuit disagreed, explaining that a purported
“defense exemption from NEPA flies in the face of the
clear language of the statute … Section 102 of NEPA
clearly instructs all federal agencies to comply with its
requirements … The only time that a federal agency
can avoid this inclusion is when a clear and unavoidable conflict in statutory authority exists.”
Concerned About Trident, at 822-23.
Twenty years further on, the rule from Concerned
About Trident had become accepted procedure. Thus,
in Chemical Weapons Working Group v. U.S.
Department of the Army, the Department of Defense
completed both NEPA reviews and applications for
other environmental permits, including one under
RCRA. 935 F. Supp. 1206, 1210-11 (D. Utah 1996)
(“[T]he Army completed and circulated a Draft Programmatic Environmental Impact Statement” and
“obtained a RCRA permit to operate from the State of
Utah under Utah’s delegated program.”). The Army
never suggested that RCRA relieved it of the need to
conduct the requisite NEPA reviews.
11
Eleven years later, in Sierra Club v. Gates, 499 F.
Supp. 2d 1101 (S.D. Ind. 2007) (denying motion
for preliminary injunction), the Army again argued
that it had concurrently complied with NEPA and
other environmental statutes. That case concerned
the Army’s Chemical Stockpile Disposal Program
and expressly contemplated both NEPA review
and subsequent RCRA permitting. See id. at 1103-04
(The court quoted the Army’s notice of its Record of
Decision, which referenced “site-specific [NEPA]
review, which will include the preparation of an
Environmental Impact Statement (EIS) or Environmental Assessment (EA) … In addition, the Army is
obligated to obtain [RCRA] and Clean Air Act
[(“CAA”)] permits”.) (alterations in original).
Once more, in Defenders of Wildlife v. U.S.
Department of the Navy, 733 F.3d 1106 (11th Cir.
2013), the Navy prepared an Environmental Impact
Statement for a proposed Undersea Warfare Training
Range but made clear that implementation of the
project would occur only after additional environmental reviews and compliance with other federal
statutes. As the Eleventh Circuit recounted, the
Navy’s Record of Decision stated that any “decision to
implement training... will be based on the updated
analysis of environmental effects in a future [EIS] in
conjunction with appropriate coordination and consultation with the [National Marine Fisheries Service]
and after compliance with applicable laws and executive orders including the [Marine Mammal Protection
Act], the [Endangered Species Act], the [NEPA] and
the Coastal Zone Management Act ....” Id. at 1116.
12
Not surprisingly, administrative records for various
military projects are also replete with instances of the
Department of Defense documenting its compliance
with both NEPA and RCRA concurrently. See, e.g.,
Department of the Army, Final Second Supplemental
Environmental Impact Statement for the Storage and
Ultimate Disposal of the European Chemical Munition
Stockpile, at 2-7 (June 1990) (“The proposed action
will require that the RCRA permit be modified to allow
for the increased number of chemical munitions to
be incinerated”), https://www.osti.gov/servlets/purl/69
49564; U.S. Army Corps of Engineers, Final
Environmental Assessment for Installing and
Operating a Thermal Treatment Facility, Holston
Army Ammunition Plant, TN, at 1-3 (Mar. 2020),
(“NEPA requires that federal agencies consider the
environmental consequences of proposed actions
during the decision-making process … As part of this
environmental assessment (EA), the Army considered
… [the] Resource Conservation and Recovery Act”),
https://cswab.org/wp-content/uploads/2020/10/Holston
-Army-Environmental-Assessment-Thermal-Treatme
nt-Facility-Final-March-2020.pdf;
United
States
Army, Final Environmental Impact Statement,
Realignment of Pueblo Depot Activity, Colorado, at S10, S-11 (Aug. 1991) (“it is likely that a revision of or a
modification to a pending RCRA permit will be
required”), https://apps.dtic.mil/sti/tr/pdf/ADA386109
.pdf.
***
Simply put, NEPA’s statutory text, congressional
understanding of that text, and the Department of
Defense’s own history of following that text all point to
one conclusion: NEPA supplements other federal
environmental laws (both pre-1969 and post) and is
not supplanted by them.
13
II. RECENT CASELAW AND CONGRESS’S
AMENDMENTS HAVE LEFT NEPA’S
FOCUS ON SUPPLEMENTAL, CROSSAGENCY COORDINATION INTACT.
Petitioners argue that RCRA should implicitly be
read to override the coordinated environmental reviews of NEPA. But this argument overlooks that when
Congress wants a specific statutory command to
override NEPA’s general requirements, it says so. In
fact, amici curiae have identified at least ten current
statutes in the United States Code with an exemption;
RCRA is not among them. See Appendix B: Current
Statutes with NEPA Restrictions/Exemptions.
A. Congressional Activity Confirming
That NEPA Supplements RCRA.
In recent years, Congress has modified the process
for EIS reviews but has left NEPA’s commitment to
interagency coordination and supplemental environmental reviews untouched.
The BUILDER Act, passed as part of the Fiscal
Responsibility Act of 2023, imposes clear page and
time limits as part of a comprehensive package of
NEPA reform. 42 U.S.C. § 4336a; Pub. L. No. 118-5,
137 Stat. 10, 41-42, Fiscal Responsibility Act of 2023
§ 107(e), 107(g). Instead of the 3,600-page EIS that
was before the Court in Seven County Infrastructure
Coalition v. Eagle County, Colorado, 605 U.S. 168
(2025), agencies are now capped at 150 pages (300 for
projects of “extraordinary complexity”). See 42 U.S.C.
§ 4336a. And the timing for preparing an EIS is now
designed to dovetail with the real-world project
deadlines that Petitioners might face: within two
years or less after determining that an EIS is required.
14
Id. The BUILDER Act also reaffirmed that there are
only rare and narrow circumstances in which NEPA
yields to other statutory requirements, e.g., when
NEPA “would clearly and fundamentally conflict” with
another statute. Id. § 4336(a)(2)–(3).
In a small handful of cases, Congress has carved out
specific projects as not subject to further NEPA
scrutiny. Shortly after NEPA’s passage, for example,
Congress recognized that the Department of the
Interior had already completed a “Final Environmental Impact Statement” for the Trans-Alaska
Pipeline and thus exempted the pipeline from additional NEPA reviews. 43 U.S.C. § 1652. Another
example comes from Section 7(c) of the Energy Supply
and Environmental Coordination Act of 1974, which
provides, “No action taken under the Clean Air Act
shall be deemed a major Federal action significantly
affecting the quality of the human environment within
the meaning of the National Environmental Policy Act
of 1969.” 15 U.S.C. § 793(c)(1). Similarly, Section
511(c) of the Clean Water Act identifies limited EPA
actions where NEPA must apply and explicitly
commands that outside of those scenarios, “no action
of the Administrator taken pursuant to this chapter
shall be deemed a major Federal action significantly
affecting the quality of the human environment within
the meaning of the National Environmental Policy Act
of 1969.…” 33 U.S.C. § 1371(c).
There have also been occasional, defense-related
matters where Congress has stepped in to establish a
NEPA exemption. More than twelve years ago,
Congress directed the Department of the Navy and the
Department of the Interior to realign boundaries for
the Chocolate Mountain Aerial Gunnery Range in
Southern California as a means of improving the
15
Bradshaw Trail, a 70-mile, backcountry dirt road.
Congress declared that “The National Environmental
Policy Act of 1969... shall not apply to any transfer
of land [related to this particular realignment]… or
any decontamination actions undertaken in connection with such a transfer.” See Pub. L. 113-66, 127
Stat. 672, 1043 (Dec. 26, 2013), National Defense
Authorization Act for Fiscal Year 2014 § 2966(c). In a
related vein, Congress transferred ownership of a
lighthouse in Puget Sound, Washington, from the
United States Coast Guard to the city of Gig Harbor.
In directing the transfer, Congress added that the
conveyance “shall not be considered a major Federal
action for purposes of section 102(2) of the National
Environmental Policy Act of 1969….” Pub. L. 113-281,
128 Stat. 3022, 3063 (Dec. 18, 2014), Howard Coble
Coast Guard and Maritime Transportation Act of 2014
§ 608(b)(4).
The takeaway from these examples is that Congress
knows how to exempt a project from NEPA when it
chooses to do so. 6 See Appendix B: Current Statutes
with NEPA Restrictions/Exemptions. Congress’s decision not to amend RCRA or NEPA (or create any form
of NEPA exemption for the Guam munitions project)
must be understood as intentional. See Bittner v.
United States, 598 U.S. 85, 94 (2023) (“When Congress
includes particular language in one section of a statute
but omits it from a neighbor, we normally understand
that difference in language to convey a difference in
As Petitioners note, the Air Force’s activities to manage
unexploded munitions on the island of Guam have been ongoing
in various iterations since 1982. Br. for Pet’rs, at 2. At any time
over the last eight presidential administrations, Petitioners
might have gone to Congress to secure a project-specific exception
or general RCRA exemption from NEPA. They did not.
6
16
meaning (expressio unius est exclusio alterius).”);
National Association of Home Builders v. Defenders of
Wildlife, 551 U.S. 644, 662 (2007) (“repeals by
implication are not favored”).
B. Seven County Infrastructure Coalition
Buttresses Enforcement of NEPA Here.
Amici curiae’s understanding of NEPA—that it
supplements statutes like RCRA and is not supplanted by them—is buttressed by the Court’s recent
decision in Seven County Infrastructure Coalition v.
Eagle County, Colorado, 605 U.S. 168 (2025). As the
Seven County Court explained, NEPA functions as an
early-stage, “procedural cross-check,” where “[t]he
goal of the law is to inform agency decisionmaking.”
Id. at 173. That understanding of the law dovetails
perfectly with what the Department of the Air Force
should have done here: complete its NEPA reviews
before submitting an application to Guam EPA.
“Properly applied, NEPA helps agencies to make
better decisions and to ensure good project management.” Id. at 177.
True, the Seven County Court noted concerns about
challengers henpecking 3,600-page EIS documents to
“block[] or delay[] even those projects that otherwise
comply with all relevant substantive environmental
laws.” Id. at 183. But an overly aggressive use of
NEPA is not remedied by Petitioners’ call for judicial
repeal of the statute altogether. NEPA’s “modest
procedural requirement” is still that—a requirement.
Id. at 183.
In Seven County, this Court noted that “[t]he
bedrock principle of judicial review in NEPA cases can
be stated in a word: Deference.” Id. at 185. That, of
course, requires that there be something in the
17
record—some form of an Environmental Assessment
(EA), Finding of No Significant Impact (FONSI), or
Environmental Impact Statement (EIS)—to which
courts can defer.
***
Petitioners were obligated to take a hard look at the
“reasonably foreseeable environmental effects of the
proposed agency action,” to evaluate “adverse environmental effects,” and to identify “alternatives” that
might mitigate or avoid those adverse effects. 42
U.S.C. § 4332(c), NEPA § 102(c). Thus, before
applying to Guam EPA for a RCRA permit, they were
required to consider alternatives that had been
evaluated in the National Academies Report. See
supra note 3. That report was prepared at the explicit
direction of Congress as part of the Fiscal Year 2017
National Defense Authorization Act, which required:
1. “An analysis of disposal, treatment, and reuse
technologies, including technologies currently
used by the Department and emerging technologies used or being developed by private or
other governmental agencies, including a comparison of cost, throughput capacity, personnel
safety, and environmental impacts… “; and
2. “[a]n identification and evaluation of any
barriers to full-scale deployment of alternatives
to open burning, open detonation, or non-closed
loop incineration/combustion, and recommendations to overcome such barriers.”
See Pub. L. No. 114-328, § 1421, 130 Stat. 2000, 25702571 (Dec. 23, 2016).
Amici curiae struggle to understand why the
Department of the Air Force did not evaluate this
18
report in the earliest stages of its decisionmaking
process, when the most cost-effective, gold-standard
recommendations from the National Academies could
have been put into practice.
CONCLUSION
For these reasons, the judgment of the Court of
Appeals should be affirmed.
Respectfully submitted,
CALE JAFFE
Counsel of Record
DIRECTOR, ENVIRONMENTAL LAW AND
COMMUNITY ENGAGEMENT CLINIC
UNIVERSITY OF VIRGINIA SCHOOL OF LAW
580 Massie Road
Charlottesville, VA 22903
(434) 924-4776
cjaffe@law.virginia.edu
Counsel to the Hon. Jared Huffman, Julia
Brownley, Debbie Dingell, and Pablo
José Hernández as Amici Curiae in
Support of Respondent
July 27, 2026
APPENDIX
APPENDIX TABLE OF CONTENTS
Page
APPENDIX A: Environmental Laws Prior to
1969.................................................................
1a
APPENDIX B: Current Statutes with NEPA
Restrictions/Exemptions ................................
5a
1a
APPENDIX A:
ENVIRONMENTAL LAWS PRIOR TO 1969
Year
Statute
Historical Citation
1884
Rivers and Harbors Act ch. 229, 23 Stat. 133
1897
Act of June 4, 1897
ch. 2, 30 Stat. 11, 32
(Forest Service Organic
Administration Act)
1900
Lacey Act (wildlife
conservation)
ch. 553, 31 Stat. 187
1902
Reclamation Act
(National Irrigation
Act)
ch. 1093, 32 Stat.
388
1906
American Antiquities
Preservation Act
ch. 3060, 34 Stat.
225
1911
Weeks Law
(Appalachian Forest
Act)
ch. 186, 36 Stat. 961
1916
National Park Service
Organic Act
ch. 408, 39 Stat. 535
1918
Migratory Bird Treaty
Act
ch. 128, 40 Stat. 755
1924
Oil Pollution Act
ch. 316, 43 Stat. 604
1929
Migratory Bird
Conservation Act
ch. 257, 45 Stat.
1222
1934
Fish and Wildlife
Coordination Act
ch. 55, 48 Stat. 401
1934
Taylor Grazing Act
ch. 865, 48 Stat.
1269
2a
1935
Soil Conservation and
Domestic Allotment
Act
ch. 85, 49 Stat. 163
1937
Federal Aid in Wildlife ch. 899, 50 Stat. 917
Restoration Act
1940
Bald and Golden Eagle ch. 278, 54 Stat. 250
Protection Act
1947
Federal Insecticide,
Fungicide, and
Rodenticide Act
ch. 125, 61 Stat. 163
1948
Federal Water
Pollution Control Act
ch. 758, 62 Stat.
1155
1950
Federal Aid in Fish
Restoration Act
ch. 658, 64 Stat. 430
1953
Outer Continental
Shelf Lands Act
ch. 345, 67 Stat. 462
1953
Submerged Lands Act
ch. 65, 67 Stat. 29
1954
Watershed Protection
and Flood Prevention
Act
ch. 656, 68 Stat. 666
1955
Air Pollution Control
Act
ch. 360, 69 Stat. 322
1956
Fish and Wildlife Act
ch. 1036, 70 Stat.
1119
1960
Multiple-Use
Sustained-Yield Act
Pub. L. No. 86-517,
74 Stat. 215
1960
Sikes Act (wildlife
conservation on
military reservations)
Pub. L. No. 86-797,
74 Stat. 1052
3a
1962
McIntire-Stennis
Cooperative Forestry
Act
Pub. L. No. 87-788,
76 Stat. 806
1963
Clean Air Act
Pub. L. No. 88-206,
(amending the Air
77 Stat. 392
Pollution Control Act of
1955)
1964
Land and Water
Pub. L. No. 88-578,
Conservation Fund Act 78 Stat. 897
1964
Water Resources
Research Act
Pub. L. No. 88-379,
78 Stat. 329
1964
Wilderness Act
Pub. L. No. 88-577,
78 Stat. 890
1965
Anadromous Fish
Conservation Act
Pub. L. No. 89-304,
79 Stat. 1125
1965
Motor Vehicle Air
Pollution Control Act
Pub. L. No. 89-272,
79 Stat. 992
1965
Solid Waste Disposal
Pub. L. 89-272, 79
Act (later incorporated Stat. 997
into the Resource
Conservation and
Recovery Act)
1965
Water Quality Act
Pub. L. No. 89-234,
(amending the Federal 79 Stat. 903
Water Pollution
Control Act of 1948)
1965
Water Resources
Planning Act
1966
Act of October 15, 1966 Pub. L. No. 89-669,
(Endangered Species
80 Stat. 926
Preservation Act)
Pub. L. No. 89-80, 79
Stat. 244
4a
1966
Clean Water
Pub. L. No. 89-753,
Restoration Act
80 Stat. 1246
(amending the Federal
Water Pollution
Control Act of 1948)
1966
Marine Resources and
Engineering
Development Act
Pub. L. No. 89-454,
80 Stat. 203
1966
National Historic
Preservation Act
Pub. L. No. 89-665,
80 Stat. 915
1966
National Sea Grant
College and Program
Act
Pub. L. 89-688, 80
Stat. 998
1966
National Wildlife
Refuge System
Administration Act
Pub. L. 89-669, 80
Stat. 927
1967
Air Quality Act
(amending the Clean
Air Act of 1963)
Pub. L. No. 90-148,
81 Stat. 485
1968
Act of August 3, 1968
(Estuary Protection
Act)
Pub. L. No. 90-454,
82 Stat. 625
1968
National Trails System Pub. L. No. 90-543,
Act
82 Stat. 919
1968
Wild and Scenic Rivers Pub. L. No. 90-542,
Act
82 Stat. 906
Note: This list includes statutes in force when NEPA
was enacted, whether or not they remain in effect today.
5a
APPENDIX B:
CURRENT STATUTES WITH NEPA
RESTRICTIONS/EXEMPTIONS
Statute
Energy
Supply and
Environmental
Act
Congressional
Language on
Statutory
Restriction/
Exemption
Current
Citation
“No
action
taken 15 U.S.C.
under the Clean Air § 793(c)(1)
Act shall be deemed a
major Federal action
significantly affecting
the quality of the
human environment
within the meaning
of the National Environmental Policy Act
of 1969.”
Clean Water Act “Except for the pro- 33 U.S.C.
vision of Federal fin- § 1371(c)(1)
ancial assistance for
the purpose of assisting the construction
of
publicly
owned
treatment works... and
the issuance of a permit... for the discharge
of any pollutant by a
new source... no action
of the Administrator
taken pursuant to this
chapter shall be deemed a major Federal
6a
action significantly affecting the quality of
the human environment within the meaning of the National
Environmental Policy
Act of 1969.”
Trans-Alaska
Pipeline
Authorization
Act
“The actions taken 43 U.S.C.
pursuant to this chap- § 1652(d)
ter which relate to the
construction and completion of the pipeline
system... shall be
taken without further
action under the National Environmental
Policy Act of 1969....”
Regional Rail
Reorganization
Act
“The provisions of 45 U.S.C.
section 4332(2)(C) of § 791(c)
Title 42 shall not
apply with respect
to any action taken
under authority of this
chapter before, and
including, the conveyance of rail properties
... and shall not apply
thereafter to any action taken in compliance with the requirements of the final
system plan.”
Disaster Relief
Act
“An action which is 42 U.S.C.
taken or assistance § 5159
which is provided...
7a
which has the effect of
restoring a facility
substantially to its
condition prior to the
disaster or emergency,
shall not be deemed a
major Federal action
significantly affecting
the quality of the
human environment
within the meaning of
the National Environmental Policy Act of
1969....”
Surface Mining 30 U.S.C. § 1251(a): 30 U.S.C.
Control and
“The issuance of the §§ 1251(a),
Reclamation Act interim
regulations 1292(d)
shall be deemed not to
be a major Federal
action
within the
meaning of section
4332(2)(c)1 of Title
42.”
30 U.S.C. § 1292(d):
“Approval of the State
programs...
promul
gation of Federal programs...
and
imp
lementation of the
Federal lands programs... shall not
constitute a major
action
within the
meaning of section
102(2)(C) of the Nat-
8a
ional Environmental
Policy Act of 1969....”
Power Plant
and Industrial
Fuel Use Act
“The following actions 42 U.S.C.
are not deemed to be § 8473
major Federal actions
for purposes of section
4332(2)(C) of this
title... the grant or
denial of any temporary exemption under
this chapter for any
electric powerplant...
the grant or denial of
any permanent exemption under this chapter for any existing
electric powerplant...
the grant or denial of
any exemption under
this chapter for any
powerplant for which
the Secretary finds...
and publishes such
finding that an environmental impact statement is required....”
Nuclear Waste
Policy Act
“The promulgation of 42 U.S.C.
standards or criteria § 10141(c)
in accordance with the
provisions of this section shall not require
the preparation of an
environmental impact
statement under section 102(2)(C) of the
9a
National
Environmental Policy
Act of 1969....”
Columbia River “Actions by the Sec- 16 U.S.C.
Gorge National retary... shall neither § 544o(f)
Scenic Area Act be considered major
Federal actions significantly affecting the
quality of the environment under section
102 of the National
Environmental Policy
Act... nor require the
preparation of an
environmental assessment in accordance
with that Act.”
Building Chips
in America Act
4652(h):
15 U.S.C.
“Notwithstanding any § 4652(h),
other provision of law, 4659(d)
the provision by the
Secretary of Federal
financial
assistance
for a project described
in this section that
satisfies the requirements under subsection (a)(2)(C)(i) of
this section shall not
be considered to be a
major Federal action
under the National
Environmental Policy
Act of 1969....”
10a
4659(d):
“Notwithstanding any
other provision of law,
each of the following
shall be treated as a
category of action categorically
excluded
from the requirements
relating to environmental assessments
and
environmental
impact statements under section 1501.4 of
title 40, Code of
Federal Regulations,
or any successor regulation....”
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.