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.

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