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

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.

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