Amicus Curiae Brief — Department of the Air Force, et al., Petitioners v. Prutehi Guahan, fka Prutehi Litekyan
Supreme Court briefJul 27, 2026
Ask Donna
What actually matters in this document.
Text
No. 25-579
In the Supreme Court of the United States
UNITED STATES DEPARTMENT OF
THE AIR FORCE, ET AL.,
Petitioners,
V.
PRUTEHI GUÅHAN,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
BRIEF OF COMMUNITY-BASED ORGANIZATIONS IN GUAM,
PUERTO RICO, AMERICAN SAMOA, THE U.S. VIRGIN ISLANDS,
AND THE NORTHERN MARIANA ISLANDS AS AMICI CURIAE IN
SUPPORT OF RESPONDENT
Neil C. Weare
Adi Martínez-Román
Luis Fernando Martínez Torres
RIGHT TO DEMOCRACY PROJECT
1300 Pennsylvania Ave. NW
190-413
Washington, DC 20004
(202) 304-1202
nweare@righttodemocracy.us
Hermann Ferré
Counsel of Record
Juan O. Perla
CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP
1875 K Street NW, Ste. 425
Washington, DC 20006
(212) 452-7373
hferre@curtis.com
Charles Howland
David Holmes
Nathan Mosher
CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP
101 Park Ave.
New York, NY 10178
July 2026
Counsel for Amici Curiae
(i)
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ............................................................... 2
ARGUMENT ............................................................... 5
I. NEPA’s Procedural Requirements Ensure
Democratic Participation And
Accountability That RCRA Lacks........................... 5
A. NEPA’s Text, Implementing Procedures,
And Guiding Precedent Mandate Early,
Robust Public Engagement And
Community Participation ................................. 5
B. RCRA And NEPA Are Complementary
Administrative Regimes That Serve
Distinct Functions............................................ 8
II. NEPA’s Procedural Protections Are
Especially Important In The Territories,
Whose People Are Otherwise Excluded
From the Political Process.................................... 14
A. People In Guam And The Territories
Are Subject To An Undemocratic
Framework that Denies “Consent Of
The Governed” ............................................... 14
B. The History Of Unilateral Federal
Action Across The Territories Highlights
The Need For Meaningful Community
Engagement And Participation ...................... 18
(ii)
1.
Guam.................................................... 18
2.
Puerto Rico .......................................... 21
3.
American Samoa ................................. 24
4.
United States Virgin Islands .............. 25
5.
Northern Mariana Islands (NMI) ....... 27
C. Guam’s Unbalanced Political
Relationship With The United States
Makes NEPA Critical For Meaningful
Community Oversight.................................... 30
III. If Uncertainty Remains, The Charming
Betsy Canon Favors Interpreting NEPA
And RCRA To Both Apply To Avoid
Violating U.S. International Commitments
To “Non-Self-Governing Territories” And
Indigenous Communities ..................................... 31
CONCLUSION.......................................................... 36
(iii)
TABLE OF AUTHORITIES
CASES
Andrus v. Sierra Club,
442 U.S. 347 (1979) ................................................. 4
Baltimore Gas & Electric Co. v. Natural Resources
Defense Council, Inc.,
462 U.S. 87 (1983) ................................................... 7
Boumediene v. Bush,
553 U.S. 723 (2008) ............................................... 16
California v. Block,
690 F.2d 753 (9th Cir. 1982) ................................... 4
Davis v. Guam,
932 F.3d 822 (9th Cir. 2019) ................................. 20
Dep’t of Transp. v. Pub. Citizen,
541 U.S. 752 (2004) ................................................. 7
F. Hoffman-La Roche Ltd. v. Empagran S.A.,
542 U.S. 155 (2004) ............................................... 33
Fin. Oversight & Mgmt. Bd. for Puerto Rico v.
Aurelius Inv., LLC,
590 U.S. 472 (2020) ............................................... 16
Fitisemanu v. United States,
143 S. Ct. 362 (2022) ............................................. 16
Flint Ridge Dev. Co. v. Scenic Rivers Ass’n of Oklahoma,
426 U.S. 776 (1976) ................................................. 8
(iv)
Guam v. United States,
593 U.S. 310 (2021) ............................................... 21
Hartford Fire Ins. Co. v. California,
509 U.S. 764 (1993) ............................................... 33
Lac du Flambeau Band of Lake Superior Chippewa
Indians v. Coughlin,
599 U.S. 382 (2023) ............................................... 33
Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024) ............................................... 33
Marsh v. Oregon Nat. Res. Council,
490 U.S. 360 (1989) ................................................. 8
Murray v. Schooner Charming Betsy,
2 Cranch 64 (1804) ................................................ 32
Northern Mariana Islands v. United States,
399 F.3d 1057 (9th Cir. 2005) ............................... 30
Puerto Rico v. Sanchez Valle,
579 U.S. 59 (2016) ................................................. 22
Robertson v. Methow Valley Citizens Council,
490 U.S. 332 (1989) ......................................... 4, 6, 7
Seven County Infrastructure Coalition v. Eagle County,
605 U.S. 168 (2025) ................................................. 7
Trump v. Barbara,
No. 25-365 (June 30, 2026) ................................... 16
(v)
United States v. Vaello-Madero,
596 U.S. 159 (2022) ................................... 14, 15, 16
Veneno v. United States,
146 S. Ct. 52 (2025) ............................................... 15
Weinberger v. Catholic Action of Haw./Peace Ed. Project,
454 U.S. 139 (1981) ................................................. 8
Weinberger v. Rossi,
456 U.S. 25 (1982) ................................................. 32
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. 23, § 1 ....................................... 16
U.S. Const. art. II, § 2, cl. 2 ...................................... 17
U.S. Const. art. IV, § 3, cl. 2 ..................................... 14
STATUTES AND LOCAL LAWS
42 U.S.C. 4331 ............................................................ 6
42 U.S.C. 4331(b) ........................................................ 2
42 U.S.C. 4331(b)(2) .................................................. 12
42 U.S.C. 4331(b)(4) .................................................. 12
42 U.S.C. 4332(A)........................................................ 9
42 U.S.C. 4336a(c)....................................................... 9
48 U.S.C. 1421a ........................................................ 19
(vi)
48 U.S.C. 1421c ......................................................... 19
48 U.S.C. 1421k ........................................................ 19
48 U.S.C. 1422 .......................................................... 19
48 U.S.C. 1574(c)....................................................... 25
48 U.S.C. 1711 .................................................... 19, 25
48 U.S.C. 1751 .......................................................... 28
48 U.S.C. 2100 et seq. ............................................... 22
Am. Samoa Code Ann. § 3.1001 (1962) .................... 24
Covenant to Establish a Commonwealth of the
Northern Mariana Islands in Political Union
with the United States of America, Pub. L. No.
94-241, 90 Stat. 263 (1976) ................................... 28
Guam Res. No. 228-34 (2017) ................................... 20
Pub. L. No. 118-232, 138 Stat. 2834 (2025) ............. 24
The Uniformed And Overseas Citizens Absentee
Voting Act, 52 U.S.C. 20301–20311 ..................... 17
REGULATIONS
40 C.F.R. 124.10 et seq. ............................................. 10
40 C.F.R. 124.31 ........................................................ 10
40 C.F.R. 124.32 ........................................................ 10
(vii)
40 C.F.R. 124.33 ........................................................ 10
40 C.F.R. 1502.14 ...................................................... 11
40 C.F.R. 25.13 .......................................................... 12
OTHER AUTHORITIES
60 Fed. Reg. 63,417 (Dec. 11, 1995) ................... 10, 11
72 Fed. Reg. 10,721 (Mar. 9, 2007)........................... 13
80 Fed. Reg. 55,838 (Sept. 17, 2015) .................. 13, 20
86 Fed. Reg. 20,487 (Apr. 20, 2021) ......................... 13
90 Fed. Reg. 40,065 (Aug. 18, 2025) ......................... 13
Amy C. Barrett, Substantive Canons and
Faithful Agency, 90 B.U. L. Rev. 109 (2010) ........ 33
Andrew Tilghman, Cong. Rsch. Serv., R47643,
Guam: Defense Infrastructure and Readiness
(2026) ..................................................................... 20
Arnold Leibowitz, Defining Status:
A Comprehensive Analysis of
United States Territorial
Relations (1989) ..................18, 19, 21, 22, 24, 25, 28
Brief for the United States, Salas v. United
States, 116 F.4th 830 (9th Cir. 2024) (No. 2216936) .................................................................... 28
(viii)
Bureau of Ocean Energy Mgmt, Commercial
Leasing for Minerals Offshore American
Samoa Environmental Assessment (July
2026) ...................................................................... 25
Camille Padilla Dalmau, Amid Lack of Services,
This Organization Is Supporting Cancer
Patients in Vieques, USC Ctr. for Health
Journalism (May 8, 2024), https://center
forhealthjournalism.org/our-work/repor
ting/amid-lack-services-organization-supporti
ng-cancer-patients-vieques ................................... 23
Cary Coglianese & Daniel E. Walters, AgendaSetting in the Regulatory State: Theory and
Evidence, 68 Admin. L. Rev. 93 (2016) ................. 10
Ctr. for the Advancement of Pub. Action at
Bennington Coll., Environmental Justice
Begins in St. Croix (last visited July 24, 2026),
https://www.bennington.edu/center-advancem
ent-of-public-action/environment-and-publicaction/environmental-justice-begins-st ................ 27
Damaris Suárez & José M. Encarnación
Martínez, The Roar of Military Aircraft
Echoes Once Again Over Vieques, Stirring
Painful Memories, Centro de Periodismo
Investigativo (Nov. 1, 2025), https://periodis
moinvestigativo.com/2025/11/us-military-pres
ence-returns-to-vieques/........................................ 24
(ix)
Dep’t of Def., NEPA Implementing Procedures
(last updated Apr. 30, 2026), perma.cc/NSP2KY3V............................................................ 7, 10, 11
Efrén Rivera Ramos, The Legal Construction of
American Colonialism: The Insular Cases
(1901–1922), 65 Rev. Jur. U.P.R. 225 (1996) ....... 15
Ernice Gilbert, Troops Already on St. Croix See
Wider Regional Buildup as Hegseth Declares
Caribbean Deployment Is ”Not Training”,
Virgin Islands Consortium (Sept. 10, 2025) ......... 26
Eunice Bedminster, Hovensa Cleanup Comes to
42 Million Gallons So Far, VI Source (Mar. 9,
2008), https://visourcearchives.com/content/
2008/03/11/hovensa-cleanup-comes-42-million
-gallons-so-far/ ....................................................... 26
Exec. Order No. 10178, 15 Fed. Reg. 7,313 (Nov.
1, 1950) .................................................................. 19
Fourth Periodic Report of the United States of
America to the United Nations Committee on
Human Rights Concerning the International
Covenant on Civil and Political Rights, U.N.
Doc. CCPR/C/USA/4 (Dec. 30, 2011)..................... 35
G.A. Res. 66(I), U.N. GAOR, 1st Sess. (Dec. 14,
1946) ...................................................................... 34
Guam Commonwealth Act, H.R. 100, 105th
Cong. (1997) ........................................................... 20
(x)
International Covenant on Civil and Political
Rights, Dec. 16, 1966, S. Exec. Doc. No. E, 952 (1978), 999 U.N.T.S. 171 .................................... 34
Jackie Dragon, American Samoa said ‘no’ to
deep sea mining, Washington heard ‘faster,’
Mongabay (Apr. 1, 2026), https://news.
mongabay.com/2026/04/american-samoa-saidno-to-deep-sea-mining-washington-heard-fast
er-commentary/#cite-article .................................. 25
Letter from Guam Env’t Prot. Agency to
Brigadier Gen. Jeremy T. Sloane (Oct. 15,
2021) ...................................................................... 13
Libr. of Cong., 1999: Vieques Island Protests,
https://guides.loc.gov/latinx-civil-rights/vieq
ues-island-protests (last visited July 24, 2026) ... 23
Marise James, A Call for Equity: Land, Legacy
and Learning on St. John, St. John
Tradewinds (Sept. 16, 2023), https://stjohn
tradewinds.com/opinion-a-call-for-equity-landlegacy-and-learning-on-st-john/ ............................ 26
Mark Rabago, Apatang, Leon Guerrero push for
deep-sea mining moratorium, BOEM reforms,
Marianas Press (May 6, 2026), https://marian
aspress.com/news/article/apatang-leon-guerre
ro-push-for-deep-sea-mining-moratorium-boe
m-reforms .............................................................. 29
(xi)
Mar-Vic Cagurangan, DOD ditches bombing
range project for Pagan, scales down footprint
on Tinian, Pacific Island Times (Apr. 4, 2022),
https://www.pacificislandtimes.com/post/dodditches-bombing-range-project-for-paganscales-down-footprint-on-tinian ............................ 30
Mar-Vic Cagurangan, What’s killing
Guamanians? The island is tainted with 25
types of toxic chemicals, Pacific Island Times
(Feb. 16, 2026), https://www.pacificisland
times.com/post/what-s-killing-guamaniansthe-island-is-tainted-with-25-types-of-toxicchemicals ............................................................... 21
Memorandum from Douglas P. Boren, Regional
Dir., Pac. Regional Off. of the Bureau of
Ocean Energy Mgmt., to Acting Dir. (Mar. 13,
2026) ...................................................................... 29
Michael Jacobson & Stephen Finan, The
Charming Betsy Canon: Time to Ride the Tide
of Loper Bright, Harv. Int’l L.J. Blog (Mar. 28,
2025) ...................................................................... 33
NFESC, Former Atlantic Fleet Weapons
Training Area - Vieques, U.S. Dep’t of the
Navy, https://www.navfac.navy.mil/Divisions/
Environmental/Products-and-Services/Enviro
nmental-Restoration/Atlantic/Vieques/Site-De
scriptions/ (last visited July 24, 2026) .................. 23
(xii)
Protest planned on first day of live fire testing
above Ritidian, Pacific Daily News (Sept. 23,
2023), https://www.guampdn.com/news/prote
st-planned-on-first-day-of-live-fire-testing-abo
ve-ritidian/article_9b9c385e-59ab-11ee-8168-8
3ce8ba81832.html ................................................. 20
Report by the President’s Task Force on Puerto
Rico’s Status (2011) ............................................... 22
Rules of the House of Representatives, 119th
Cong. R. III (2025) ................................................. 17
Sarah H. Cleveland, Powers Inherent in
Sovereignty: Indians, Aliens, Territories, and
the Nineteenth Century Origins of Plenary
Power Over Foreign Affairs, 81 Texas L. Rev.
1, (2002) ................................................................. 15
The Declaration of Independence (U.S. 1776) ... 14, 17
U.N. Charter art. 1 ................................................... 35
U.N. Charter art. 73 ................................................. 34
U.S. Dep’t of Just. Letter to Sen. Frank
Murkowski and Jeff Bingaman (Jan. 18, 2001) ... 22
U.S. Dep’t of State, Announcement of U.S.
Support for the United Nations Declaration on
the Rights of Indigenous Peoples (Dec. 16,
2010), https://2009-2017.state.gov/s/srgia/
154553.htm ............................................................ 35
(xiii)
U.S. Dep’t of the Interior, Advancing the United
Nations Declaration on the Rights of
Indigenous Peoples (Jan. 14, 2025), https://
www.doi.gov/blog/advancing-united-nationsdeclaration-rights-indigenous-peoples ................. 36
U.S. Dep’t of the Navy, A Petition From
Inhabitants of Guam Relating to a Permanent
Government, H.R. Doc. No. 419, 1st Sess.
(1902), https://www.guampedia.com/1901petition/.................................................................. 19
U.S. Dep’t of the Navy, Final Environmental
Impact Statement, Guam and CNMI Military
Relocation (2010) ................................................... 20
U.S. Dep’t of the Navy, Mariana Islands
Training and Testing Draft Supplemental
Environmental Impact Statement (Mar.
2026), https://www.nepa.navy.mil/mitteis/ .......... 30
U.S. EPA, EPA Withdraws Plantwide
Applicability Limit Permit for Limetree Bay
Refinery in U.S. Virgin Islands (Mar. 25,
2021), https://www.epa.gov/newsreleases/epawithdraws-plantwide-applicability-limitpermit-limetree-bay-refinery-us-virgin ................ 27
U.S. EPA, HOVENSA LLC, Clean Air Act
Settlement (Jan. 26, 2011), https://
www.epa.gov/enforcement/hovensa-llc-cleanair-act-settlement .................................................. 27
(xiv)
U.S. Gov’t Accountability Off., GAO-21-268,
Defense Cleanup: Efforts at Former Military
Sites on Vieques and Culebra, Puerto Rico,
Are Expected to Continue Through 2032
(2021). .................................................................... 22
United Nations Declaration on the Rights of
Indigenous Peoples, G.A. Res. 61/295, U.N.
Doc. A/RES/61/295 (Sept. 13, 2007) ...................... 35
USVI Constitutional Convention Clearinghouse,
https://usvi.concon.info/ (last visited July 24,
2026) ...................................................................... 26
1
INTEREST OF AMICI CURIAE1
Amici are community-based organizations in
Guam, Puerto Rico, American Samoa, the U.S. Virgin
Islands, and the Northern Mariana Islands (“the
Territories”) that are focused on environmental and
cultural preservation. These islands are their
homeland. They each have a strong interest in
ensuring that federal agencies adhere to federal
environmental laws that require public engagement
and participation early in the decisionmaking process.
Interpreting the National Environmental Policy Act
(NEPA) and the Resource Conservation and Recovery
Act (RCRA) to limit public engagement at the critical
early stages of federal agency action would strip amici
of their ability to fulfill the generational responsibility
codified in NEPA.
When federal agencies are allowed to avoid
such public engagement and consultation, amici and
their members are denied the only tools they have for
participation and accountability. In particular, amici
and their communities have been disproportionately
impacted by the U.S. military’s bombing and disposal
activities. The people of the Territories are unable to
vote for President, do not have voting representation
in Congress, and have long been denied full enjoyment
of their right to self-determination. While they each
1 Pursuant to Supreme Court Rule 37.6, counsel for amici
state that no counsel for a party authored this brief in whole or
in part and no person or entity other than amici, its members, or
counsel made a monetary contribution to its preparation or
submission.
2
hold diverse views on their future political
relationship with the United States, they all agree
that federal environmental laws require robust and
meaningful community engagement and participation
to have their voice heard. The full list of amici appears
in the appendix.
By centering the unique histories and
experiences of the people of the Territories as
stewards of their lands and waters for thousands of
years, long before the United States existed, amici
urge the Court to affirm.
INTRODUCTION AND
SUMMARY OF ARGUMENT
NEPA rests on a simple premise: the decisions
federal agencies make today will shape the
environment to be inherited by generations yet to be
born. Congress gave that premise the force of law by
declaring it the policy of the United States to “fulfill
the responsibilities of each generation as trustee of the
environment for succeeding generations.” 42 U.S.C.
4331(b)(1). Amici take this generational commitment
seriously.
A trustee does not act alone, in secret, or
without accounting to those whose interests are at
stake.
NEPA’s
procedural
architecture—its
requirements for rigorous early environmental study,
public
notice,
and
meaningful
community
participation before any final decision is made—is the
mechanism through which that accountability is
realized. For most citizens, NEPA’s participatory
3
requirements exist alongside a full suite of democratic
tools in the federal system. But for the more than 3.6
million people living in the Territories, those tools are
largely unavailable. As a legacy of the Insular Cases,
decided 125 years ago this year, the people of the
Territories cannot vote for the President and
Commander-in-Chief, who directs the U.S. military
and federal agencies; they have no voting
representation in the Senate, which confirms the
Cabinet officers who oversee the agencies that govern
their lives; their delegates to the House of
Representatives cannot cast a vote on final legislation;
and there is no democratic participation or
accountability for the selection of federal judges who
hear their cases. Thus, when federal agencies are
allowed to ignore community concerns, the people of
the Territories are left without recourse to ordinary
democratic channels.
Viewed against this structural backdrop, where
“consent of the governed” is largely illusory, NEPA is
not merely a procedural formality. While far from
perfect, for communities in the Territories, it is the
primary mechanism through which they can influence
environmentally consequential federal decisions
before those decisions are set in stone. That is
precisely what makes the timing question at the
center of this case so critical. As this Court has
recognized, NEPA’s procedural requirements exist to
ensure that agencies take a “hard look” at potential
environmental consequences and engage the public
before it makes a decision—not after resources have
been committed and “the die otherwise cast.”
4
Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 349 (1989).
By contrast, RCRA’s permitting process
evaluates the Air Force’s settled decision to handle
hazardous waste in a particular way and place—a post
hoc review that cannot “internalize opposing
viewpoints into the decision-making process” at the
moment they might still matter. California v. Block,
690 F.2d 753, 771 (9th Cir. 1982) (citing, inter alia,
Andrus v. Sierra Club, 442 U.S. 347, 350 (1979)). This
distinction is especially stark for the Department of
the Air Force, an agency whose principal mission is
national security, not environmental stewardship.
NEPA exists precisely to ensure that agencies like this
incorporate environmental values “where they would
not otherwise be taken into account.” Pet. App. 41a.
For the people of Guam and the Territories—who bear
the consequences of agency decisions made without
their consent—that function is not incidental. It is the
only meaningful opportunity for early input into
decisions that will shape the health of the land and
waters they are responsible for protecting for future
generations.
Amici agree with respondent that the Air
Force’s decision to continue open detonation (“OD”)
activities at Tarague Beach constitutes “final agency
action.” Resp. Br. 38–53. Amici focus here on question
two, addressing why NEPA’s requirements apply in
full to the Air Force’s decision to proceed with OD, and
why the Court should be especially attentive to the
democratic deficit that makes those requirements
indispensable for the people of the Territories. And to
5
the extent ambiguity remains on this question, amici
further submit that the separation of powers
considerations underlying the Charming Betsy canon
militate against an interpretation of NEPA and RCRA
that would—in the specific context of this case—
conflict with the United States’ international
commitments to its Non-Self-Governing Territories
and Indigenous communities.
ARGUMENT
I.
NEPA’s Procedural Requirements Ensure
Democratic Participation And Accountability
That RCRA Lacks
NEPA and RCRA are complementary
administrative regimes that fill gaps in each other’s
statutory framework. Specifically, NEPA’s robust
provisions regarding public engagement at critical,
early stages of the decisionmaking process are
necessary to ensure regulators like Guam EPA are
able to fulfill their responsibilities under RCRA.
A. NEPA’s Text, Implementing Procedures,
And Guiding Precedent Mandate Early,
Robust
Public
Engagement
And
Community Participation
1. NEPA’s statutory text and implementing
procedures make clear that public engagement and
community participation—at key preliminary stages
of a federal agency’s decisionmaking process—are
essential to achieving its “broad national commitment
to protecting and promoting environmental quality.”
6
Robertson, 490 U.S. at 348 (citing 42 U.S.C. 4331).
Recognizing “the profound impact of man’s activity on
the interrelations of all components of the natural
environment,” Congress established as “the
continuing policy of the Federal Government” that it
would work “in cooperation with * * * concerned public
and private organizations” 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).
Congress made the expansive scope of NEPA
clear in commanding “the Federal Government to use
all practicable means” to “assure for all Americans
safe, healthful, productive, and esthetically and
culturally pleasing surroundings.” 42 U.S.C. 4331(b).
Congress emphasized the “diversity, and variety of
individual choice” as a key element for “preserv[ing]
important historic, cultural, and natural aspects of
our national heritage.” Ibid. These admittedly
ambitious, qualitative goals cannot be achieved
without a deep level of public engagement and
participation at the key decisional points in the federal
decisionmaking process.
This congressional mandate for federal
agencies to work with “concerned public and private
organizations” and to “use all practicable means and
measures” to achieve its expansive goals is reinforced
throughout NEPA, including the implementing
procedures applicable to the Air Force. When
preparing an Environmental Impact Statement (EIS),
for example, the Department of Defense’s NEPA
7
implementing procedures state in clear terms that
agencies “[w]ill obtain comments of * * * [t]he public,
including by affirmatively soliciting comments in a
manner designed to inform those persons or
organizations who may be interested or affected by the
proposed action,” at which point the agency “will
address any significant comments” so that it can
consider and “respon[d] to substantive issues raised”
in the EIS itself. Dep’t of Def., NEPA Implementing
Procedures pts. 2.1(b) and (e) (last updated Apr. 30,
2026) (DoD NEPA Proc.), perma.cc/NSP2-KY3V.
2. This Court has similarly recognized the
importance NEPA places on public engagement and
community participation. NEPA “ensures that the
agency and the public are aware of the environmental
consequences of proposed projects.” Seven County
Infrastructure Coalition v. Eagle County, 605 U.S.
168, 177 (2025). NEPA serves a critical “informational
role” that is designed “to give the public the assurance
that the agency has indeed considered environmental
concerns in its decisionmaking process, and, perhaps
more significantly, [to] provide a springboard for
public comment in the agency decisionmaking process
itself.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752,
768 (2004) (citations and internal quotation marks
omitted); see Robertson, 490 U.S. at 349; Baltimore
Gas & Electric Co. v. Natural Resources Defense
Council, Inc., 462 U.S. 87, 97 (1983); Weinberger v.
Catholic Action of Haw./Peace Ed. Project, 454 U.S.
139, 143 (1981).
The significance of timing when it comes to
public participation is also clear, with this Court
8
emphasizing the importance that public concerns be
“considered during the planning stage of agency
actions.” Weinberger, 454 U.S. at 143. “[T]he broad
dissemination of information mandated by NEPA,”
this Court has explained, “permits the public and
other government agencies to react to the effects of a
proposed action at a meaningful time.” Marsh v.
Oregon Nat. Res. Council, 490 U.S. 360, 371 (1989).
Ultimately,
“NEPA
promotes
its
sweeping
commitment * * * by focusing Government and public
attention on the environmental effects of proposed
agency action.” Ibid.
“NEPA’s instruction that all federal agencies
comply” with its requirements “to the fullest extent
possible,” this Court has said, “is neither accidental
nor hyperbolic.” Flint Ridge Dev. Co. v. Scenic Rivers
Ass’n of Oklahoma, 426 U.S. 776, 787 (1976) (citations
and internal quotation marks omitted). Just the
opposite, NEPA’s requirements for meaningful
environmental study and community engagement
early in the process are a “deliberate command” that
cannot “be shunted aside in the bureaucratic shuffle.”
Ibid. Petitioners’ approach would reduce that
congressional command to a voluntary request, and at
the very moment a community faces heightened risks
from hazardous materials.
B. RCRA And NEPA Are Complementary
Administrative Regimes That Serve
Distinct Functions
Nothing in the text of NEPA or RCRA states
that the procedures governing the RCRA permit
9
renewal process should displace the procedures that
federal agencies are mandated to follow under NEPA.
Yet, on petitioners’ view, the fact that the challenged
agency activity deals with the disposal of dangerous
explosives and other toxic materials—which are
nominally regulated under RCRA—means that
citizens impacted by that activity are somehow
entitled to less information and opportunity for public
engagement. Petitioners have it backwards. The fact
that the disposal activities here carry particularly
harmful environmental consequences warrants more
opportunity for early community involvement—
something which only NEPA ensures. Far from
redundant, NEPA and RCRA are complementary
administrative regimes that each serve distinct
functions in advancing environmental review, citizen
involvement, and community accountability. Indeed,
the marked gaps between the two schemes—
differences
critical
for
meaningful
public
participation—belies petitioners’ claim that RCRA is
the “functional equivalent” of NEPA, Pet. Br. 20,
which, as respondent emphasizes, is not even this
Court’s test. Resp. Br. 22–32.
1. NEPA “declares” that federal agencies “use
all practicable means” to achieve its goals, 42 U.S.C.
4331(a),
including
“utilizing
a
systematic
interdisciplinary approach.” 42 U.S.C. 4332(A). And it
commands that agencies “shall include a request for
public comment” as part of their environmental
review process. 42 U.S.C. 4336a(c). The Department
of Defense’s new NEPA procedures require public
engagement before decisions are made and before
10
actions are taken. See DoD NEPA Proc. pts. 1.8(b) and
2.1 (requiring DoD to “obtain the comments of [t]he
public” and “address any significant comments
received”). This is important because “early agendasetting decisions affect and structure all that comes
afterwards.” Cary Coglianese & Daniel E. Walters,
Agenda-Setting in the Regulatory State: Theory and
Evidence, 68 Admin. L. Rev. 93, 94 (2016).
In contrast to NEPA’s anticipatory provisions,
RCRA’s public engagement regulations are reactive
and occur only after an initial decision by the agency
over whether and how to proceed has been made. This
problem is exacerbated given that the information
repository mechanism that EPA designed for highinterest facilities does not apply in Guam. Guam EPA
has not adopted the RCRA expanded public
participation provisions added by EPA in 1995, see 60
Fed. Reg. 63,417 (Dec. 11, 1995), which require a preapplication public meeting, notice at application
submittal, and an information repository. 40 C.F.R.
124.31–124.33. Absent such adoption, the first formal
public engagement point under RCRA in Guam is the
draft permit comment period. See 40 C.F.R. 124.10 et
seq. Critically, this is precisely the point that EPA’s
preamble to the 1995 public participation provisions
describe as “too late to enter the process” because, by
that point, “the facility and the permitting agency
ha[ve] already made all the major decisions.” 60 Fed.
Reg. at 63,420. And even if adopted, these rules apply
only to “initial” permit applications or when the
facility “is proposing a significant change,” 40 C.F.R.
124.131(a), so would not apply here regardless.
11
2. One of the most consequential gaps is
NEPA’s requirement to comprehensively analyze
alternatives—what
the
former
Council
on
Environmental Quality regulations called the “heart”
of any environmental impact statement. 40 C.F.R.
1502.14. NEPA requires the Air Force to rigorously
examine whether alternatives to OD—including
alternate locations—would be more protective of
Guam’s environment and community health. While
the RCRA process allows for consideration of
alternative technologies, the process does not evaluate
whether OD at Tarague Beach is the right location in
the first place. Only NEPA does that.
3. NEPA has historically required analysis of
cumulative effects—the combined environmental
burden on communities, together with past, present,
and foreseeable future activities in the region—a
concept still applied by the U.S. military today. See
DoD NEPA Proc. app. A, at DoW A113-31, A114-32
and A140-20. RCRA is facility-specific and makes no
provision for cumulative analysis.
4. Similarly, NEPA explicitly requires
consideration of the cultural, historical, and aesthetic
harms to affected communities—including the
profound cultural and spiritual significance of
Tarague and nearby Litekyan (Ritidian Point) for the
Indigenous CHamoru/Chamorro2 people, whose
ancestral lands and sacred sites lie near the OD
Both spellings are used to reflect orthographic
differences in Guam and the Northern Mariana Islands.
2
12
operations. See 42 U.S.C. 4331(b)(2) and (4). Cultural
practitioners and Indigenous knowledge are
profoundly critical for comprehensive planning. RCRA
never requires analysis of any of these values.
5. RCRA’s own coordination regulation
confirms that the two statutes are designed to operate
together, not as substitutes. The regulation directs
that RCRA public participation activities be
coordinated with “environmental assessment and
analysis procedures under 40 C.F.R. part 6”—i.e.,
NEPA review. 40 C.F.R. 25.13. RCRA does not
contemplate replacing NEPA; it anticipates the two
operating together.
The instant case exemplifies the functional
importance of both administrative schemes.
Petitioners lament that applying NEPA in the context
of the Air Force’s RCRA permit application “would
“paralyze agency decisionmaking instead of properly
informing it.” Pet. Br. 4 (brackets, citation, and
internal quotation marks omitted). But the record
here tells a different story. Without the benefit of the
robust environmental studies and public engagement
required under NEPA, Guam EPA’s consideration of
the Air Force permit application under RCRA has
stalled. More than five years have passed since the Air
Force originally submitted its application, J.A. 15,
with no decision from Guam EPA to approve or deny
the permit. It seems there remains too many
unanswered questions—both from a community
engagement and environmental science perspective—
for Guam EPA to act. Letter from Guam EPA to
Brigadier Gen. Jeremy T. Sloane (Oct. 15, 2021).
13
NEPA and RCRA are complementary, not
redundant. Absent NEPA procedures and process,
Guam EPA and the broader impacted community are
hamstrung in their ability to understand, participate
in, and influence Air Force decisionmaking regarding
the treatment and disposal of dangerous explosives
and other toxic materials. Federal planners also lose
out on critical local knowledge.
Further, the U.S. military has demonstrated its
ability to undertake full NEPA review regarding its
extensive activities in Guam. See, e.g., 90 Fed. Reg.
40,065 (Aug. 18, 2025) (noting NEPA review role in
constructing aircraft parking apron); 86 Fed. Reg.
20,487 (Apr. 20, 2021) (infrastructure upgrades); 80
Fed. Reg. 55,838 (Sept. 17, 2015) (family housing
construction); 72 Fed. Reg. 10,721 (Mar. 9, 2007)
(wharf extension construction). It would defy common
sense for federal law to require greater environmental
review and community participation when the
military builds roads or parking lots than when it
explodes hazardous ordinances, potentially spreading
toxic materials over Guam’s sole-source aquifer.
14
II.
NEPA’s
Procedural
Protections
Are
Especially Important In The Territories,
Whose People Are Otherwise Excluded From
the Political Process
A. People In Guam And The Territories Are
Subject To An Undemocratic Framework
that Denies “Consent Of The Governed”
When the United States declared its
independence 250 years ago, it expressly rejected the
idea of colonial rule and recognized “the consent of the
governed” as its core foundational principle. The
Declaration of Independence para. 2 (U.S. 1776). Yet,
for the last 125 years, the United States has ruled its
overseas Territories through a colonial legal
framework that denies democracy, self-governance,
and self-determination to over 3.6 million people. This
shift from a country founded on the rejection of
colonial rule, to one that has embraced its own brand
of “American colonialism,” United States v. VaelloMadero, 596 U.S. 159, 182 (2022) (Gorsuch, J.,
concurring), is grounded in the Insular Cases and an
expansive reading of the Territory Clause.
The Territory Clause, Article IV, § 3, cl. 2 of the
Constitution states, “Congress shall have Power to
dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging
to the United States.” Under that Clause, Congress
has long assumed “plenary power” over the
Territories, including a near-unlimited authority to
govern its communities. See Sarah H. Cleveland,
Powers Inherent in Sovereignty: Indians, Aliens,
15
Territories, and the Nineteenth Century Origins of
Plenary Power Over Foreign Affairs, 81 Tex. L. Rev. 1,
239–50 (2002). This Court recently invoked the Clause
to rule Congress had the power to deny Supplemental
Security Income benefits to low-income seniors and
disabled people based solely on their residence in a
U.S. territory, stating “[t]he text of the Clause affords
Congress broad authority to legislate with respect to
the U. S. Territories.” Vaello-Madero, 596 U.S. at 162;
but see Veneno v. United States, 146 S. Ct. 52, 54
(2025) (Gorsuch, J., joined by Thomas, J., dissenting
from denial of certiorari) (“[R]ightly understood, [the
Territories Clause does not] endow the federal
government with plenary power even within the
Territories themselves.”).
Following the Spanish American War in 1898,
in which the United States acquired Puerto Rico and
Guam as spoils of war, the Supreme Court expanded
federal power over its newly acquired island
Territories in the Insular Cases—a series of racially
grounded decisions that sanctioned the full extension
of U.S. sovereignty to overseas Territories without
requiring the full extension of constitutional rights or
self-determination. See Efrén Rivera Ramos, The
Legal Construction of American Colonialism: The
Insular Cases (1901–1922), 65 Rev. Jur. U.P.R. 225,
236–71 (1996). As this Court has explained, the
Insular Cases established a “doctrine of territorial
incorporation, under which the Constitution applies in
full in incorporated Territories surely destined for
statehood but only in part in unincorporated
16
Territories.” Boumediene v. Bush, 553 U.S. 723, 757
(2008).
This Court has called the Insular Cases “muchcriticized” and exhorted that they “should not be
further extended.” Fin. Oversight & Mgmt. Bd. for
Puerto Rico v. Aurelius Inv., LLC, 590 U.S. 448, 472
(2020); see also Vaello Madero, 596 U.S. at 180
(Gorsuch, J., concurring) (declaring that “[t]he Insular
Cases have no foundation in the Constitution and rest
instead on racial stereotypes”); id. at 194 n.4
(Sotomayor, J., dissenting) (observing the Insular
Cases “were premised on beliefs both odious and
wrong”); Trump v. Barbara, No. 25-365, slip op. 2, n.1
(June 30, 2026) (Jackson, J., concurring) (including
the Insular Cases in a list of Supreme Court decisions
that have “denied Americans” the “promise” of “equal
citizenship”). Yet the Court has left these cases on the
books. See, e.g., Aurelius, 590 U.S. at 472 (“[W]e need
not consider the request by some of the parties that we
overrule the much-criticized ‘Insular Cases’”);
Fitisemanu v. United States, 143 S. Ct. 362 (2022)
(denying certiorari in a petition asking whether the
Insular Cases should be overruled).
The result of all this today is near-unlimited
federal control over the people of the Territories
without any meaningful political representation or
clear path to self-determination. People in Guam and
other Territories lack the right to vote for the
President, even as that right has been extended to
people in other non-state jurisdictions, see U.S. Const.
amend. 23, § 1, and protected for U.S. citizens who
permanently live outside of the United States. See The
17
Uniformed And Overseas Citizens Absentee Voting
Act, 52 U.S.C. 20301–20311. They have no
representation at all in the Senate, which has the
power of “advice and consent” over Presidential
nominees, including the Secretary of the Air Force.
Representation in the House of Representatives is
limited to non-voting “Delegates” and a “Resident
Commissioner” who have no power to vote on final
legislation. Rules of the House of Representatives,
119th Cong. R. III, cl. 3(a) and (b) (2025). All told, the
people of the Territories have little to no democratic
voice or accountability for the laws enacted by
Congress or the administrative regulations and
decisions made by federal agencies, yet they are
subjected to them just the same.
Federal courts are also part of this
undemocratic framework. Federal judges are
nominated by a President for whom people in the
Territories cannot vote and confirmed by a Senate in
which they lack any representation. U.S. Const. art. 2,
§ 2, cl. 2.
In summary, the people of the Territories have
no voting representation in the laws they are required
to follow, no say in the President or federal officers
who enforce those laws, and no influence in selecting
the judges who interpret those laws and decide legal
disputes like this one. All of which contradicts the
foundational principle enshrined in the Declaration of
Independence that governments “derive their just
powers from the consent of the governed.” Declaration
of Independence para. 2 (U.S. 1776).
18
B. The History Of Unilateral Federal Action
Across The Territories Highlights The
Need
For
Meaningful
Community
Engagement And Participation
Unsurprisingly, the lack of democratic
accountability across all three branches of the federal
government often results in unilateral federal actions
that run contrary to the well-being and expressed
interests of the people of the Territories.
Understanding the history of political development in
each Territory alongside specific examples where
unilateral federal action (or inaction) has failed to
adequately consider community environmental and
cultural concerns highlights why this Court should
ensure NEPA’s robust procedural requirements apply
to the Air Force’s decision to continue its OD
activities.
1. Guam
In 1898, the United States claimed sovereignty
over Guam and Puerto Rico following the SpanishAmerican War. Treaty of Peace Between the United
States of America and the Kingdom of Spain, SpainU.S., Dec. 10, 1898, 30 Stat. 1754. From then until
1950, a presidentially appointed Naval Governor
ruled Guam by fiat. Arnold Leibowitz, Defining
Status: A Comprehensive Analysis of United States
Territorial Relations 313 (1989) (Leibowitz). In a 1901
petition to Congress, Guam’s leaders objected to the
imposition of a naval governor who “exercises
supreme power in the executive, legislative, and
judicial branches of government, with absolutely no
19
limitations in his actions, the people of this island
having no voice whatever.” U.S. Dep’t of the Navy, A
Petition From Inhabitants of Guam Relating to a
Permanent Government, H.R. Doc. No. 419, 1st Sess.,
at 2 (1902), https://www.guampedia.com/1901-petitio
n/. Similar petitions for self-government were sent in
1917, 1929, 1933, 1936, 1947, 1949, and 1950. Ibid.
Civilian rule did not start until 1950, but still under a
presidentially appointed civilian governor rather than
an elected governor. Leibowitz at 313, 325.
In 1950, Congress enacted an Organic Act that
“declared” Guam “to be an unincorporated territory,”
with any locally enacted law “subject to modification
or repeal by the Congress of the United States,” and
giving the President the power “to designate parts of
Guam as naval or military reservations” without
limitation, all of which remain the law today. 48
U.S.C. 1421a, 1421c, 1421k. President Truman
immediately claimed more than 42,000 acres of land
for military purposes—nearly a third of Guam’s total
land area—adding to what the U.S. military had
already taken following Japan’s brutal occupation of
Guam during World War II, and all without proper
compensation. Exec. Order No. 10178, 15 Fed. Reg.
7,313 (Nov. 1, 1950). Guam did not elect its own
Governor until 1971, and did not have even a nonvoting delegate to Congress until 1973. 48 U.S.C.
1422, 1711. Today, only Congress can amend the
Guam Organic Act. 48 U.S.C. 1423i. And Guam’s
efforts to pursue self-determination have been
repeatedly ignored by Congress and limited by federal
courts. See, e.g., Guam Commonwealth Act, H.R. 100,
20
105th Cong. (1997); see also, e.g., Davis v. Guam, 932
F.3d 822 (9th Cir. 2019).
Over a quarter of Guam’s limited land area
today remains controlled by the military, with the
scope and scale of military activities expanding
dramatically over the last two decades. Andrew
Tilghman, Cong. Rsch. Serv., R47643, Guam: Defense
Infrastructure and Readiness (2026). Throughout this
time, NEPA has provided an important—if often
imperfect—platform for community engagement and
accountability. In 2010, community opposition
expressed during the NEPA process led the military
to reconsider plans to locate a firing range complex at
Pagat, a sacred site of significant environmental and
cultural value. See U.S. Dep’t of the Navy, Final
Environmental Impact Statement, Guam and CNMI
Military Relocation (2010). Community opposition
continued after the military shifted the proposed
firing range complex to Ritidian/Litekyan, another
critical site for ecological and cultural preservation.
See 80 Fed. Reg. 55,838 (Sept. 17, 2015). However,
despite a resolution from the Guam Legislature
opposing the project, Guam Res. No. 228-34 (2017),
the military nonetheless proceeded, bulldozing 900
football fields of pristine limestone forest that is
habitat to 15 endangered species and preventing
access to traditional fishing, medicinal plants, and
latte burial sites. Protest planned on first day of live
fire testing above Ritidian, Pacific Daily News (Sept.
23, 2023), https://www.guampdn.com/news/protest-pl
anned-on-first-day-of-live-fire-testing-aboveritidian/a
rticle_9b9c385e-59ab-11ee-8168-83ce8ba81832.html.
21
Concerns over military activities are grounded
in a legacy of environmental harms and
contamination from federal activities that continue to
threaten Guam lives, land, and water. The island’s
prominent role in national defense has had a steep
ecological and human cost, leaving a footprint of
hazardous waste and toxic pollutants like PFAS,
PCBs, Agent Orange, radiation fallout, asbestos, and
more across the island that have contributed to
increased cancer rates, neurological disorders, and
other health problems. Mar-Vic Cagurangan, What’s
killing Guamanians? The island is tainted with 25
types of toxic chemicals, Pacific Island Times (Feb. 16,
2026), https://www.pacificislandtimes.com/post/whats-killing-guamanians-the-island-is-tainted-with-25-ty
pes-of-toxic-chemicals. A host of military facilities in
Guam, including Andersen Air Force Base, have been
declared Superfund sites by U.S. EPA, ibid., with this
Court ruling unanimously in 2021 that the
Government of Guam could seek recovery for damages
from “toxic military waste” deposited at a Navy dump.
Guam v. United States, 593 U.S. 310, 313, 320 (2021).
2. Puerto Rico
From 1898–1900, Puerto Rico was ruled by a
presidentially appointed military governor. Leibowitz
at 140–41, 154. Presidentially appointed civilian
governors took over from 1900–1953. Id. at 162–64.
Operating through a congressionally mandated
process, Puerto Rico adopted its own Constitution in
1952, with its first elected governor taking office in
1953. Ibid. However, the U.S. Department of Justice
has consistently stated its view that the Puerto Rico
22
Constitution is “subject to unilateral alteration or
revocation by subsequent Acts of Congress,” U.S.
Dep’t of Just. Letter to Sen. Frank Murkowski and
Jeff Bingaman, at 5–7 (Jan. 18, 2001), with a 2011
White House Report noting “a future Congress could
choose to alter that relationship unilaterally.” Report
by the President’s Task Force on Puerto Rico’s Status,
at 26 (2011). This Court observed in 2016 that if you
“trace” the “ultimate source of Puerto Rico’s”
sovereignty “all the way back, we arrive at the
doorstep of the U.S. Capitol.” Puerto Rico v. Sanchez
Valle, 579 U.S. 59, 78 (2016). That same year,
Congress established a presidentially appointed fiscal
oversight board with extraordinarily broad powers to
nullify locally enacted laws and government contracts.
48 U.S.C. 2100 et seq.
Unilateral federal military action has also
negatively affected Puerto Rico, due to historical
disregard for public participation and environmental
impacts. For decades, the U.S. military conducted livefire training activities in the island municipalities of
Vieques and Culebra in Puerto Rico. U.S. Gov’t
Accountability Off., GAO-21-268, Defense Cleanup:
Efforts at Former Military Sites on Vieques and
Culebra, Puerto Rico, Are Expected to Continue
Through 2032, at 1 (2021). The Navy then
consolidated its military operations in Vieques,
occupying two-thirds of the island. Ronald O’Rourke,
Cong. Rsch. Serv., RS20458, Vieques, Puerto Rico
Naval Training Range: Background and Issues for
Congress 1 (2004).
23
More than 300,000 munitions were fired in
Vieques between the 1940s and 2003. NFESC, Former
Atlantic Fleet Weapons Training Area - Vieques, U.S.
Dep’t of the Navy (NFESC), https://www.navfac.navy.
mil/Divisions/Environmental/Products-and-Services/
Environmental-Restoration/Atlantic/Vieques/Site-De
scriptions/ (last visited July 24, 2026). It was not until
a broad civil disobedience campaign that the U.S.
military ended its bombing in Vieques. Libr. of Cong.,
1999: Vieques Island Protests, https://guides.loc.gov/l
atinx-civil-rights/vieques-island-protests (last visited
July 24, 2026). The people of Vieques and Culebra
continue to bear the health and environmental
impacts of decades of bombing. Both islands have the
highest cancer mortality rates in Puerto Rico, and
large areas remain off-limits due to unexploded
ordinance and contamination. See Camille Padilla
Dalmau, Amid Lack of Services, This Organization Is
Supporting Cancer Patients in Vieques, USC Ctr. for
Health Journalism (May 8, 2024), https://centerforhe
althjournalism.org/our-work/reporting/amid-lack-ser
vices-organization-supporting-cancer-patients-vie
ques; see also NFESC. The recent surge of military
activity in Puerto Rico has raised concerns about a
return to destructive practices that disregard
community concerns. Damaris Suárez & José M.
Encarnación Martínez, The Roar of Military Aircraft
Echoes Once Again Over Vieques, Stirring Painful
Memories, Centro de Periodismo Investigativo (Nov. 1,
2025), https://periodismoinvestigativo.com/2025/11/us
-military-presence-returvns-to-vieques/. All of this is
the consequence of federal military decisions made
24
without informed, participatory environmental and
community review.
3. American Samoa
American Samoa became a U.S. Territory
following the 1899 Tripartite Convention between the
United States, Germany, and the United Kingdom,
and the 1900 and 1904 Deeds of Cession between the
United States and the traditional leaders of Tutuila,
Aunu’u and Manua. Leibowitz at 414–15. From 1900–
1951, American Samoa was ruled by a presidentially
appointed naval governor, with presidentially
appointed civilian governors until American Samoa
was allowed to elect its own governor in 1978. Id. at
417, 452. It did not have a non-voting Delegate to
Congress until 1981. Id. at 454. American Samoa’s
constitution was approved by the Department of the
Interior in 1960, id. at 420, with Congress recently
returning to the Secretary of Interior the power to
unilaterally amend or annul the constitution. Pub. L.
No. 118-232, 138 Stat. 2834 (2025). Justices on the
High Court of American Samoa are appointed by the
Secretary of Interior and removable for cause. Am.
Samoa Code Ann. § 3.1001 (1962). Interior has
claimed broad powers to unilaterally override any
local law, executive action, or even judicial decision.
Leibowitz at 419–21.
Most recently, Interior has exercised its broad
powers to unilaterally open the waters off American
Samoa to deep sea mining leases over the unanimous
objection of American Samoa’s elected representatives
and a local moratorium on deep sea mining. Bureau of
25
Ocean Energy Mgmt, Commercial Leasing for
Minerals Offshore American Samoa Environmental
Assessment 1–3 (July 2026). Despite tens of
thousands of comments opposing deep sea mining in
American Samoa, Interior responded by doubling the
size of the proposed area, speeding up the review
process, and reducing notice requirements to the local
government. Jackie Dragon, American Samoa said
‘no’ to deep sea mining, Washington heard ‘faster,’
Mongabay (Apr. 1, 2026), https://news.mongabay.com
/2026/04/american-samoa-said-no-to-deep-sea-mining
-washington-heard-faster-commentary/#cite-article.
Federal law does not require any local review or
approval of deep-sea mining outside of American
Samoa’s 3-mile economic zone.
4. United States Virgin Islands
The United States purchased the U.S. Virgin
Islands from Denmark in 1917 for $25 million.
Leibowitz at 245. A presidentially appointed naval
governor ruled the islands until 1931, with
presidentially appointed civilian governors until the
U.S. Virgin Islands was allowed to elect its own
governor in 1970. Id. at 253, 272. Its first non-voting
Delegate took office in 1973. 48 U.S.C. 1711. It has no
constitution, and is currently undertaking its sixth
constitutional convention after Congress rejected the
constitution approved by the fifth constitutional
convention.
USVI
Constitutional
Convention
Clearinghouse, https://usvi.concon.info/ (last visited
July 24, 2026). Any law passed by the Virgin Islands
remains “subject to the power of Congress to annul
any such Act of the legislature.” 48 U.S.C. 1574(c).
26
Nearly two-thirds of St. John is controlled by the
National Park Service. Marise James, A Call for
Equity: Land, Legacy and Learning on St. John, St.
John
Tradewinds
(Sept.
16,
2023),
https://stjohntradewinds.com/opinion-a-call-for-equit
y-land-legacy-and-learning-on-st-john/. Recently, the
U.S. military has also expanded its presence in the
Virgin Islands without any mechanism for local
community participation or engagement. Ernice
Gilbert, Troops Already on St. Croix See Wider
Regional Buildup as Hegseth Declares Caribbean
Deployment Is “Not Training”, Virgin Islands
Consortium (Sept. 10, 2025).
The inability to influence or hold federal
regulators
democratically
accountable
has
contributed to environmental and community harms
in the U.S. Virgin Islands. Most striking is the damage
caused by an oil refinery in St. Croix as a result of
inconsistent or absent regulation and oversight by
federal regulators. From 1978 to 2008, the refinery
released 42 million gallons of petroleum into the
island’s aquifer—four times the Exxon Valdez spill.
Eunice Bedminster, Hovensa Cleanup Comes to 42
Million Gallons So Far, VI Source (Mar. 9, 2008),
https://visourcearchives.com/content/2008/03/11/hove
nsa-cleanup-comes-42-million-gallons-so-far/.
In
2011, EPA finally issued a penalty of $5.375 million,
requiring more than $700 million in pollution controls
to protect public health and resolve Clean Air Act
violations. U.S. EPA, HOVENSA LLC, Clean Air Act
Settlement (Jan. 26, 2011), https://www.epa.gov
/enforcement/hovensa-llc-clean-air-act-settlement.
27
Despite this record, EPA issued a permit in 2020—
seven years after the refinery’s closure—allowing the
facility to potentially emit air pollutants consistent
with its historically heaviest production levels. EPA
withdrew the permit in 2021, but the withdrawal did
not require the facility to cease operations. U.S. EPA,
EPA Withdraws Plantwide Applicability Limit Permit
for Limetree Bay Refinery in U.S. Virgin Islands (Mar.
25, 2021), https://www.epa.gov/newsreleases/epawithdraws-plantwide-applicability-limit-permit-limet
ree-bay-refinery-us-virgin. Only after pollution events
sprayed nearby communities with petroleum mist,
causing widespread environmental contamination
and severe health impacts to community members,
including three deaths, did EPA order a pause in
operations. Ctr. for the Advancement of Pub. Action at
Bennington Coll., Environmental Justice Begins in St.
Croix, https://www.bennington.edu/center-advanceme
nt-of-public-action/environment-and-public-action/en
vironmental-justice-begins-st (last visited July 24,
2026). Ultimately, inconsistent and inadequate
environmental oversight by EPA—despite community
pressure—has facilitated one of the greatest
environmental calamities in the Caribbean.
5. Northern Mariana Islands (NMI)
Following World War II, which devastated the
islands with lasting impacts to this day, the NMI was
governed by U.S. officials as part of the Trust
Territory of the Pacific. Leibowitz at 527. In the 1970s,
NMI leaders negotiated a Covenant to Establish a
Commonwealth of the Northern Mariana Islands in
Political Union with the United States of America
28
(“Covenant”) that became federal law in 1976. Id. at
520, 530–36; Pub. L. No. 94-241, 90 Stat. 263 (1976).
The NMI established its own Constitution in 1976 and
its first elected governor took office in 1978. Leibowitz
at 536. But it did not have a non-voting Delegate to
Congress until 2009. 48 U.S.C. 1751. Today, the
United States claims that, “[a]lthough described as a
commonwealth, the relationship [of the Northern
Mariana Islands to the United States] is territorial in
nature with final sovereignty invested in the United
States and plenary legislative authority vested in the
United States Congress.” Brief for the United States
at 3, Salas v. United States, 116 F.4th 830 (9th Cir.
2024) (No. 22-16936), Dkt. No. 17 (quoting S. Rep. No.
94-596, at 2 (1976)).
This year the NMI and the United States
celebrate the 50th anniversary of the negotiated
Covenant, which established a unique relationship
“based upon the principles of government by the
consent of the governed, individual freedom and
democracy,” and the people of the NMI’s “inalienable
right of self-determination.” Covenant Preamble.
However, the reality has often fallen short for the
NMI’s Chamorro and Refaluwasch (Carolinian)
people.
For example, the federal government is
currently exploring deep-sea mining leases near the
Marianas despite widespread local opposition. For
Chamorro and Refaluwasch communities, the ocean is
not simply a resource or an area designated for federal
use. It is part of an interconnected cultural landscape
involving reefs, fisheries, seamounts, currents, winds,
29
marine life, traditional navigation, Indigenous
ecological knowledge, and relationships that have
been maintained across countless generations. In
May, NMI Governor David Apatang joined with Guam
Governor Lou Leon Guerrero to call on Congress to
take immediate action to establish a moratorium on
deep-sea mining in the Mariana region, citing “a
profound lack of meaningful engagement with affected
communities.” Mark Rabago, Apatang, Leon Guerrero
push for deep-sea mining moratorium, BOEM reforms,
Marianas
Press
(May
6,
2026),
https://
marianaspress.com/news/article/apatang-leon-guerre
ro-push-for-deep-sea-mining-moratorium-boem-refor
ms. This came after Interior doubled the size of the
proposed lease area following over 65,000 comments,
overwhelmingly in opposition. Memorandum from
Douglas P. Boren, Regional Dir., Pac. Regional Off. of
the Bureau of Ocean Energy Mgmt., to Acting Dir. 2
(Mar. 13, 2026). Disputes over deep-sea resources are
longstanding, with the United States using the
judicial system to invalidate local laws asserting
NMI’s claim to submerged lands and adjacent mineral
resources, and to instead recognize the federal
government’s “paramount rights to the submerged
lands.” Northern Mariana Islands v. United States,
399 F.3d 1057, 1066 (9th Cir. 2005).
The U.S. military also has an outsized presence
in the NMI, controlling two-thirds of Tinian and
conducting bombing exercises in Farallon de
Medinilla for over fifty years. See U.S. Dep’t of the
Navy, Mariana Islands Training and Testing Draft
Supplemental Environmental Impact Statement 3–70
30
(Mar. 2026), https://www.nepa.navy.mil/mitteis/.
Recent military activities have faced strong local
opposition
due
to
their
potential
health,
environmental, and cultural impacts. See id. at 3–81.
In these instances, NEPA is one of few formal
mechanisms through which NMI residents can
influence the federal decisionmaking process. While
not perfect, NEPA review has at times led the military
to adapt or even cancel plans in response to public
comment, including, for example, ending plans to
bomb Pagan Island and reducing proposed activities
in Tinian. Mar-Vic Cagurangan, DOD ditches
bombing range project for Pagan, scales down
footprint on Tinian, Pacific Island Times (Apr. 4,
2022), https://www.pacificislandtimes.com/post/dodditches-bombing-range-project-for-pagan-scalesdown-footprint-on-tinian.
C. Guam’s Unbalanced Political Relationship
With The United States Makes NEPA
Critical For Meaningful Community
Oversight
The unbalanced political relationship between
the United States and the people of the Territories
limits their ability to influence federal decisionmaking
through traditional political channels. This leaves
judicial review of NEPA’s procedural protections and
its requirements for meaningful environmental
review, public engagement, and community
participation all the more important. Residents of the
Territories bear the full consequences of federal
decisions that threaten their lands, waters, and
communities, yet are denied the political rights
31
fundamental for democratic consent on those
decisions. As demonstrated, the harms from
unilateral federal actions are real. If this Court
removes the guardrails provided under NEPA to
ensure federal decisionmaking is informed by the best
science and community concerns, the people of the
Territories will have even less power and agency over
the decisions that impact them and future
generations.
The undemocratic status faced by people in the
Territories is unique. NEPA’s mandate is especially
important in Guam—and across the Territories—
where residents lack the fundamental political rights
to participate in the federal democratic process.
III.
If Uncertainty Remains, The Charming Betsy
Canon Favors Interpreting NEPA And RCRA
To Both Apply To Avoid Violating U.S.
International Commitments To “Non-SelfGoverning Territories” And Indigenous
Communities
As discussed above, the text, history, and
purpose of NEPA and RCRA are clear that the Air
Force’s decision to continue its OD activities must
follow NEPA’s procedural requirements, not simply
the requirements set forth under RCRA. But to the
extent any ambiguity remains on this question, this
Court’s statutory interpretive principles favor
respondent’s reading. It is a longstanding “maxim of
statutory construction” that “‘an act of Congress ought
never to be construed to violate the law of nations if
any other possible construction remains.’” Weinberger
32
v. Rossi, 456 U.S. 25, 32 (1982) (quoting Murray v.
Schooner Charming Betsy, 2 Cranch 64, 118 (1804)).
Here, interpreting NEPA and RCRA to allow
petitioners to proceed with their decision to conduct
open detonation of hazardous materials without
undertaking the kind of serious environmental study,
public engagement, and community participation
required under NEPA would violate the international
commitments and obligations the United States has to
its Non-Self-Governing Territories (“NSGTs”) and
Indigenous people. Thus, with respect to the
interactions between the United States and NSGTs
like Guam, the Charming Betsy canon supports
interpreting NEPA and RCRA as complementary
regulatory regimes to avoid conflict with U.S.
international obligations.
“[The] Charming Betsy [canon] may be
described as protecting the Constitution’s allocation of
foreign policymaking authority to the political
branches.” Amy C. Barrett, Substantive Canons and
Faithful Agency, 90 B.U. L. Rev. 109, 173 (2010). Put
another way, “Charming Betsy can be rephrased as [a]
clear statement rule[]” that, “absent a clear
statement, a court will not interpret a statute to
abrogate customary international law.” Id. at 167. For
this reason, among others, “[t]extualists embrace * * *
Charming Betsy.” Id. at 122 (citing F. Hoffman-La
Roche Ltd. v. Empagran S.A., 542 U.S. 155, 176 (2004)
(Scalia, J., joined by Thomas, J., concurring in the
judgment); Hartford Fire Ins. Co. v. California, 509
U.S. 764, 814–21 (1993) (Scalia, J., dissenting)); see
also Lac du Flambeau Band of Lake Superior
33
Chippewa Indians v. Coughlin, 599 U.S. 382, 404
(2023) (Gorsuch, J., dissenting). Indeed, after Loper
Bright Enterprises v. Raimondo, 603 U.S. 369 (2024),
“the Charming Betsy canon elevates the importance of
reading statutes in a manner that is in accordance
with relevant international law as courts determine
the best reading of a statute.” Michael Jacobson &
Stephen Finan, The Charming Betsy Canon: Time to
Ride the Tide of Loper Bright, Harv. Int’l L.J. Blog
(Mar. 28, 2025). As relevant here, the United States’
longstanding commitment to NSGTs is codified
throughout international agreements.
1. Following World War II, the United States
led the world in developing an international legal
order centered on the idea of self-determination,
reflecting the country’s own founding principle of the
“consent of the governed.” Article 73 of the United
Nations Charter, which the United States signed and
ratified in 1945, recognizes that “the interests of the
inhabitants of [NSGTs] are paramount,” establishing
for administering powers like the United States “a
sacred trust” and “obligation” “to take due account of
the political aspirations of the peoples [of NSGTs],”
and “to develop self-government” and “free political
institutions,” all “with due respect for the culture of
the peoples concerned.” U.N. Charter art. 73. Guam
has been on the United Nations list of Non-SelfGoverning Territories since 1946, almost 80 years.
G.A. Res. 66(I), U.N. GAOR, 1st Sess. (Dec. 14, 1946).
2. The International Covenant on Civil and
Political Rights (ICCPR), ratified by the United States
in 1992, expressly provides that “[a]ll peoples have the
34
right of self-determination,” and that “[e]very citizen
shall have the right and the opportunity * * * [t]o take
part in the conduct of public affairs, directly or
through freely chosen representatives.” International
Covenant on Civil and Political Rights arts. 1(1) and
25, Dec. 16, 1966, S. Exec. Doc. No. E, 95-2 (1978), 999
U.N.T.S. 171. In 2011, the United States recognized
that it “remains firmly committed to the principle of
self-determination” set forth in the ICCPR, which
“remains at the core of American political life.” Fourth
Periodic Report of the United States of America to the
United Nations Committee on Human Rights
Concerning the International Covenant on Civil and
Political Rights, ¶ 5, U.N. Doc. CCPR/C/USA/4 (Dec.
30, 2011). Today, the right to self-determination is
widely accepted as a rule of customary international
law. U.N. Charter art. 1, ¶ 2.
3. In 2011, the United States signed on to the
United Nations Declaration on the Rights of
Indigenous Peoples (UNDRIP). See U.S. Dep’t of
State, Announcement of U.S. Support for the United
Nations Declaration on the Rights of Indigenous
Peoples (Dec. 16, 2010), https://2009-2017.state.gov
/s/srgia/154553.htm.
UNDRIP
provides
that
“Indigenous peoples have the right to selfdetermination,” including the “right to participate
fully, if they so choose, in the political, economic, social
and cultural life of the State.” United Nations
Declaration on the Rights of Indigenous Peoples, G.A.
Res. 61/295, arts. 3 and 5, U.N. Doc. A/RES/61/295
(Sept. 13, 2007). Importantly, UNDRIP requires that
“States shall consult and cooperate in good faith with
35
the indigenous peoples concerned * * * in order to
obtain their free and informed consent prior to the
approval of any project affecting their lands or
Territories and other resources.” Id. art. 32(2). In
2014, following the World Conference on Indigenous
Peoples, the United States joined a United Nations
resolution committing “to tak[e], in consultation and
cooperation with Indigenous Peoples, appropriate
measures at the national level, including legislative,
policy and administrative measures, to achieve the
ends of [UNDRIP],” a commitment the United States
reaffirmed in 2025. See U.S. Dep’t of the Interior,
Advancing the United Nations Declaration on the
Rights of Indigenous Peoples (Jan. 14, 2025),
https://www.doi.gov/blog/advancing-united-nationsdeclaration-rights-indigenous-peoples.
Interpreting NEPA and RCRA in a manner that
reduces the ability of the people of Guam—especially
its Indigenous CHamoru/Chamorro people—to
influence decisionmaking with respect to the Air
Force’s decision to continue its OD operations would
conflict with U.S. commitments and obligations under
the United Nations Charter, the ICCPR, and
UNDRIP. Eliminating the public engagement and
community participation procedures required by
NEPA would limit the ability of the federal
government to ensure “the interests” of the people of
Guam “are paramount” or “to take due account of the
political aspirations of the peoples,” as set forth in the
United Nations Charter. It would also prevent the
people of Guam from being able to “take part in the
conduct of public affairs” relevant to their lives, as
36
required under the ICCPR. Waiting until after the Air
Force has already made its decision to include Guam’s
views fundamentally contradicts the “free, prior, and
informed consent” framework set forth by UNDRIP
and the broader principle of self-determination.
Ultimately, the United States has an
international obligation to promote self-determination
in Guam and to protect the Indigenous rights of the
CHamoru/Chamorro people. To achieve this, decisions
made by the United States in Guam—particularly
those that have the potential to cause significant
environmental impact—must include the people of
Guam’s input and consent at all levels of
decisionmaking. Because Guam remains an
“unincorporated” Territory whose people lack any of
the traditional democratic tools for political
accountability, the combination of NEPA’s early
community participation plus RCRA’s requirement for
consent by a local regulator is essential. Failing to
account for the people of Guam’s input and consent—
or outright acting against it—would conflict with the
United States’ commitments under international law.
CONCLUSION
The judgment of the court of appeals should be
affirmed.
37
Respectfully submitted,
Neil C. Weare
Adi Martínez-Román
Luis Fernando Martínez Torres
RIGHT TO DEMOCRACY PROJECT
1300 Pennsylvania Ave. NW
190-413
Washington, DC 20004
(202) 304-1202
nweare@righttodemocracy.us
Hermann Ferré
Counsel of Record
Juan O. Perla
CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP
1875 K Street NW, Ste. 425
Washington, DC 20006
(212) 452-7373
hferre@curtis.com
Charles Howland
David Holmes
Nathan Mosher
CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP
101 Park Ave.
New York, NY 10178
July 2026
Counsel for Amici Curiae
APPENDIX A
(i)
TABLE OF CONTENTS
APPENDIX A: LIST OF AMICI ............................... 1a
1a
APPENDIX A: LIST OF AMICI
Marianas
Micronesia Climate Change Alliance (MCCA)
Tåno, Tåsi, Yan Todu
Birthworkers of Color Collective
Guåhan Sustainable Culture
Friends of the Marianas Trench
Refaluwasch Journal of Knowledge and Culture
URAALI Refaluwasch Association
Puerto Rico
Amigxs del Mar
El Puente Puerto Rico
FURIA Inc.
Mujeres de Isla
Resiliency Law Center
2a
U.S. Virgin Islands
St. Croix Environmental Association
St. JanCo: The St. John Heritage Collective
Virgin Islands Institute for Social Impact, Opulence,
and Noetics, Inc. (VIISION)
American Samoa
Finafinau
Pacific Global Citizens Inc.
Puipui Measina A Amerika Samoa
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.