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

No. 25-579

In the Supreme Court of the United States

DEPARTMENT OF THE AIR FORCE, ET AL.,

v.

Petitioners,

PRUTEHI GUAHAN,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE STATES OF WASHINGTON,

COLORADO, DELAWARE, MAINE, MARYLAND,

MICHIGAN, MINNESOTA, NEW MEXICO, NEW YORK,

OREGON, AND THE DISTRICT OF COLUMBIA IN

SUPPORT OF RESPONDENT

NICHOLAS W. BROWN

Attorney General

State of Washington

NOAH G. PURCELL

Solicitor General

PETER B. GONICK

Deputy Solicitor General

Counsel of Record

Elizabeth Harris

Assistant Attorney General

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6200

Peter.Gonick@atg.wa.gov

i

TABLE OF CONTENTS

INTRODUCTION AND INTERESTS

OF AMICI CURIAE .................................................... 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT................................................................ 4

A.

RCRA is Neither Substantially Similar

nor Equivalent to NEPA ..................................... 5

1.

RCRA ensures a hazardous waste

disposal action meets environmentally

protective standards .................................... 7

2.

NEPA ensures informed agency

decision-making........................................... 9

3.

NEPA provides unique benefits to the

Amici States where a federal agency

applies for a RCRA permit ........................ 13

a.

NEPA improves state agency

RCRA permitting............................... 13

b.

NEPA’s alternatives analysis

provides a unique opportunity to

shape federal decision-making ......... 17

c.

NEPA’s broader scope provides

States with valuable information ..... 21

CONCLUSION .......................................................... 25

ii

TABLE OF AUTHORITIES

Cases

Alabama ex rel. Siegelman v. EPA,

911 F.2d 499 (11th Cir. 1990) ..................................5

Baltimore Gas & Elec. Co. v.

Nat. Res. Def. Council, Inc.,

462 U.S. 87 (1983) ..................................................10

City of Chicago v. Env’t Def. Fund,

511 U.S. 328, 331 (1994) ..........................................7

Massachusetts v. EPA,

549 U.S. 497 (2007) ................................................12

Meghrig v. KFC W., Inc.,

516 U.S. 479, 483 (1996) ..........................................7

Motor Vehicle Mfr. Ass’n of the U.S., Inc. v.

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ..................................................18

New Mexico ex rel. Richardson v.

Bureau of Land Mgmt.,

565 F.3d 683 (10th Cir. 2009) ................................19

Prutehi Litekyan: Save Ritidian v.

U.S. Dep’t of the Air Force,

128 F. 4th 1089 (9th Cir. 2025),

cert. granted sub nom.

Dep’t of the Air Force v. Prutehi Guahan,

146 S. Ct. 1794 (2026). .......................................4, 22

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) ................................................11

San Luis & Delta-Mendota Water Auth. v. Jewell,

747 F.3d 581 (9th Cir. 2014) ....................................5

iii

Seven Cnty. Infrastructure Coal. v. Eagle County,

605 U.S. 168 (2025) ............................................9, 18

Vermont Yankee Nuclear Power Corp. v.

Nat. Res. Def. Council, Inc.,

435 U.S. 519 (1978) ..................................................9

Yakima Valley Cablevision, Inc. v. FCC,

794 F.2d 737 (D.C. Cir. 1986) ................................ 18

Statutes

National Environmental Policy Act (NEPA),

Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified

as amended at 42 U.S.C. § 4321 et seq.).................. 1

42 U.S.C. § 4331..................................................10

42 U.S.C. § 4331(a) .............................................12

42 U.S.C. § 4332....................................................4

42 U.S.C. § 4332(2)(A) ........................................10

42 U.S.C. § 4332(2)(C) ........................................10

42 U.S.C. § 4332(2)(C)(i) ........................... 1, 21-22

42 U.S.C. § 4332(2)(C)(ii).............................. 21-22

42 U.S.C. § 4332(2)(C)(iii) ..............................1, 18

42 U.S.C. § 4332(2)(F) ........................................18

42 U.S.C. § 4332(2)(G) ........................................12

42 U.S.C. § 4336(b)(1) .........................................10

42 U.S.C. § 4336(b)(2) .........................................10

42 U.S.C. § 4336a(a)(1)(B) ..................................12

42 U.S.C. § 4336a(a)(3) .......................................12

42 U.S.C. § 4336a(c).................................11-12, 18

iv

Resource Conservation and Recovery Act of 1976,

Pub. L. No. 94-580, 90 Stat. 2795 (codified as

amended at 42 U.S.C. § 6901 et seq.) .................. 1-2

42 U.S.C. § 6901 (1976) ........................................7

42 U.S.C. § 6925(b) .............................................21

42 U.S.C. § 6925(c)(3) .........................................20

42 U.S.C. § 6926(b) ...............................................8

42 U.S.C. § 6926(d) ............................................... 8

State Statutes

Colo. Rev. Stat. § 25-15-301 ......................................24

Maryland Environmental Policy Act,

Md. Code Ann., Nat. Res. §§ 1-301–305................13

New York State Environmental Quality

Review Act,

N.Y. Envtl. Conserv. Law. art. 8 ...........................13

Washington State Environmental Policy Act,

Wash. Rev. Code §§ 43.21C.010-.914 .................... 13

Regulations

40 C.F.R. § 124.10(a)(1) ...............................................8

40 C.F.R. § 124.10(b) (2025) ........................................8

40 C.F.R. §§ 124.10-.12 (2025) ....................................8

40 C.F.R. §§ 260-270 (2006) ........................................8

40 C.F.R. § 264 ..........................................................22

40 C.F.R. § 270.13 (2006) ............................................8

40 C.F.R. §§ 270.14-.28 (2006) ....................................8

40 C.F.R. § 271.14(h) (1983)........................................8

v

State Regulations

N.Y. Comp. Codes R. & Regs. tit. 6, § 617 ................13

N.Y. Comp. Codes R. & Regs. tit. 6, § 617.15(a) ......16

Wash. Admin. Code § 173-303-806(4)(h) ..................15

Wash. Admin. Code § 173-303-840(1) .........................8

Wash. Admin. Code § 173-303-840(2) .........................8

Wash. Admin. Code § 197-11-610(3) .........................16

Wash. Admin. Code §§ 197-11-010 to -990 ............... 13

Wash. Admin. Code § 197-11-660 .............................13

Other Authorities

Dep’t of the Army, Destruction of Chemical

Munitions at Pueblo Chemical Depot, Colorado:

Final Environmental Impact Statement

(Mar. 2002), https://oitco.hylandcloud.com/

cdphermpop/docpop/docpop.aspx...........................24

Dep’t of War, National Environmental Policy

Act Implementing Procedures, (version 1.2,

Apr. 30, 2026), https://www.denix.osd.mil/

nepa/denix-files/sites/55/2026/05/DOWProcedures-Combined_05252026_V1.2.pdf..... 10-11

Energy.Gov, The Hanford Site, Understand

the PAST, https://www.hanford.gov/

page.cfm/understandPAST (last visited

July 22, 2026) .........................................................14

Nat’l Acads. of Scis., Eng’g, & Med.,

Alternatives for the Demilitarization of

Conventional Munitions (2019),

https://perma.cc/9Z2R-ALSQ .................................20

vi

U.S. Dep’t of Energy, DOE/EIS-0391: Final

Environmental Impact Statement (FEIS)

(Nov. 2012), https://www.energy.gov/nepa/

articles/doeeis-0391-final-environmentalimpact-statement-november-2012 ..................15, 19

U.S. Dep’t of the Navy, Final Environmental

Assessment on the Disposal of Decommissioned,

Defueled Naval Reactor Plants from USS

Enterprise (CVN 65) (Aug. 2012),

https://www.hanford.gov/files.cfm/final_

EA_aug2012.pdf .....................................................23

Wash. Dep’t of Ecology, Hanford Dangerous

Waste Permit 8C, Integrated Disposal Facility

Operating Unit Group 11 (OUG-11),

https://fortress.wa.gov/ecy/nwp/permitting/

hdwp/rev/8c/IDF/conditions.pdf (last visited

July 22, 2026) .........................................................16

Wash. Dep’t of Ecology, Hanford Facility Resource

Conservation and Recovery Act (RCRA) Permit,

Dangerous Waste Portion for the Treatment,

Storage, and Disposal of Dangerous Waste,

https://fortress.wa.gov/ecy/nwp/permitting/

hdwp/rev/8c/index.html (last visited

July 22, 2026) .........................................................15

1

INTRODUCTION AND INTERESTS OF

AMICI CURIAE

The States of Washington, Colorado, Delaware,

Maine, Maryland, Michigan, Minnesota, New Mexico,

New York, Oregon, and the District of Columbia

(Amici States) share an interest in protecting their

people, environment, and natural resources. Both

the Resource Conservation and Recovery Act (RCRA)

and the National Environmental Policy Act (NEPA)

provide tools to protect this interest, but in

significantly different ways. Whereas RCRA requires

hazardous waste permit applicants to meet a set of

substantive standards, NEPA asks federal agencies to

look before they leap, without directing an outcome.

Precisely because of this structural difference, NEPA

benefits the Amici States and the public in a way that

RCRA cannot. When both statutes apply, NEPA

ensures the development of alternatives and

meaningful analysis before an applicant submits a

RCRA permit application. This difference leads to

concrete benefits within our states.

For over fifty years the Amici States have used

NEPA, Pub. L. No. 91-190, 83 Stat. 852 (1970)

(codified as amended at 42 U.S.C. § 4321 et seq.) to

protect their interests. NEPA recognizes that major

federal actions do not occur in isolation from the

environment. For this reason, NEPA ensures that

federal agencies consider the reasonably foreseeable

environmental impacts of, as well as a reasonable

range of alternatives to, a proposed major federal

action. 42 U.S.C. § 4332(2)(C)(i), (iii). This informed

decision-making ensures federal agencies can choose

2

an alternative action or incorporate mitigation

measures to lessen anticipated environmental effects

within our states.

The federal RCRA, Pub. L. No. 94-580, 90 Stat.

2795 (codified as amended at 42 U.S.C. § 6901 et seq.)

works to minimize hazardous waste generation and to

ensure that the minimized waste generated

nonetheless is treated, stored, and disposed of in

alignment with regulatory standards. The statute

establishes a hazardous waste management system

that provides critical guardrails for preserving Amici

States’ interests in keeping their environment,

natural resources, and people safe. The responsible

disposal and storage of hazardous waste management

is a grave safety issue for Amici States. Improperly

handled hazardous waste can expose humans to

toxic chemicals, leach into water supplies and soil, or

volatilize into the air. When things go wrong at the

storage, treatment, or disposal stage, hazardous

waste has the potential to cause serious lasting health

effects and devastate the environment and critical

natural resources within our states.

Many Amici States administer hazardous

waste programs that have been authorized by

the Environmental Protection Agency (EPA) under

RCRA. When evaluating applications for hazardous

waste disposal permits, the States must determine

if the application meets the substantive standards

mandated in RCRA-equivalent state law.

The point of NEPA is for a federal agency to

conduct an analysis to inform its decision before it

gets to the point of deciding what action it will take.

Only after deciding what it will actually do, and

3

completing a NEPA analysis of that proposed action if

required, can the agency apply for permits. For this

reason, a RCRA permit application is not a substitute

for NEPA.

This Court should recognize that NEPA

requires environmental analysis of major federal

actions significantly affecting the environment that

also require a RCRA permit.

SUMMARY OF ARGUMENT

Where both NEPA and RCRA apply to a major

federal action, their different approaches provide

distinct benefits to the Amici States, and one does not

supplant the other.

Congress codified two different approaches to

environmental protection, employing two different

tool sets, through passage of NEPA and RCRA. The

timing of NEPA’s environmental analysis, requiring

both public participation and the development of

alternatives before an agency decides on an action,

ensures that federal agencies make an informed

decision. Federal agencies can then develop less

environmentally impactful actions, to the benefit of

Amici States. In contrast, the RCRA permit

application process does not generally require the

analysis of alternatives and is submitted after an

applicant has already settled on a proposed waste

disposal action.

NEPA’s requirements to consider any

reasonably foreseeable adverse environmental effects

and to analyze the impact of the entire major federal

action give the Amici States vital information. Amici

4

States use this information to protect their interests,

including through the development of protective

RCRA permit conditions. RCRA’s narrower focus

ensures an applicant meets standards for a disposal

action. The arguments of the Air Force and other

amici states that NEPA impedes permitting are

overblown. NEPA’s environmental analysis often

supplies needed information for a RCRA application

and improves, rather than impedes, the permitting

process.

Through the NEPA process, the Amici States

understand the impacts of federal activities within

their states, influence federal decision-making, and

craft state-level action to address impacts within

their states. RCRA standing on its own does not afford

the Amici States these same opportunities. For

these reasons, this Court should hold that the RCRA

permit application process does not displace NEPA’s

statutory mandate for major federal actions

significantly affecting the environment.

ARGUMENT

The Ninth Circuit correctly recognized that the

RCRA application process “complements, but does not

substitute for, environmental review under NEPA.”

Prutehi Litekyan: Save Ritidian v. U.S. Dep’t of the Air

Force, 128 F. 4th 1089, 1114 (9th Cir. 2025). Congress

directed federal agencies to implement NEPA “to the

fullest extent possible[.]” 42 U.S.C. § 4332. However,

there are limited circumstances where circuit courts

have found another federal statute’s environmental

review process can replace NEPA. While circuit courts

provide varying formulations of this analysis, a RCRA

permit application from a federal agency would not

5

meet the standard in any circuit. In the Ninth Circuit,

courts look to see if a statute’s process is either

“sufficiently similar,” rendering NEPA unnecessary,

or

“sufficiently

different,”

rendering

NEPA

compliance unworkable, to determine if a federal

agency must also conduct a NEPA review. San Luis &

Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581,

650 (9th Cir. 2014). The Eleventh Circuit has held

that in the specific circumstance of EPA’s review

of a RCRA permit application, that review is the

“equivalent and more specific counterpart of NEPA.”

Alabama ex rel. Siegelman v. EPA, 911 F.2d 499, 505

(11th Cir. 1990). This is distinct from the situation

where a federal agency applies for a RCRA permit

from an authorized state agency. In that situation

the application is neither the “equivalent and more

specific counterpart” of nor “sufficiently similar”

to NEPA analysis of the agency’s proposed major

federal action to displace NEPA’s statutory mandate.

A federal agency’s NEPA review of its own proposed

major federal action differs significantly from the

analysis in a RCRA permit application. These

differences ensure that States have the opportunity

to influence federal decision-making, as Congress

intended in NEPA, and gives States information

necessary to protect their environment, people, and

resources. In this way NEPA improves federal

decision-making to the benefit of the Amici States

without burdening the RCRA application process.

A.

RCRA is Neither Substantially Similar nor

Equivalent to NEPA

NEPA and RCRA serve different purposes,

protect different interests, and generate different

information. RCRA ensures that permittees meet

6

substantive environmental protection standards

related to waste management and disposal. NEPA, on

the other hand, ensures that agencies take a

holistic look at environmental impacts and consider

alternatives before making a decision, but does not

mandate a substantive outcome. These differences

mean that submitting an application for a RCRA

permit does not, on its own, exempt a federal agency

from complying with NEPA.

Initially, this Court should recognize the

difference between the NEPA review process and a

RCRA permitting agency’s review of a RCRA permit

application. What is at issue in this case is how a

federal agency makes the decision that leads to

the need for a RCRA permit in the first place. That

decision is broader than a RCRA application review

because it can cover a bigger action than just the

disposal of hazardous waste and it includes

the consideration of alternatives. The RCRA permitissuing agency does not need to consider the

environmental impacts of a broader agency action—it

must only consider whether the proposed hazardous

waste storage, treatment, and/or disposal activities

meet RCRA’s standards for ensuring the safe

management and disposal of the hazardous waste.

Similarly, the RCRA permit issuing agency does not

need to consider potential alternatives to a waste

disposal action. The necessary NEPA review is not

merely on the action of submitting a RCRA permit

application. The NEPA review is of the proposed

major federal action that requires a RCRA permit.

7

1.

RCRA

ensures

waste

disposal

environmentally

standards

a

hazardous

action

meets

protective

Congress enacted RCRA in 1976 as an Act to

recover “energy and other resources from discarded

materials and for the safe disposal of discarded

materials, and to regulate the management of

hazardous waste.” 42 U.S.C. § 6901 (1976); see also

Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996)

(“RCRA’s primary purpose, rather, is to reduce the

generation of hazardous waste and to ensure

the proper treatment, storage, and disposal of

that waste which is nonetheless generated, ‘so as to

minimize the present and future threat to human

health and the environment.’ ” (quoting 42 U.S.C.

§ 6902(b))). The Act is intended to ensure compliance

with environmentally protective standards, providing

a comprehensive framework to “regulate hazardous

wastes from cradle to grave[.]” City of Chicago v. Env’t

Def. Fund, 511 U.S. 328, 331 (1994). As such, RCRA

empowers EPA and States to control the full lifecycle

of hazardous waste.

RCRA accomplishes this part of the goal

through a permitting process for all facilities dealing

with the treatment, storage, and disposal of

hazardous waste. These facilities are required to

obtain permits under the Act in order to operate

in alignment with RCRA’s design, operation, and

monitoring standards. The RCRA permit process is

broken into two parts. Part A of the application

process requires the applicant to specify the particular

hazardous wastes that are to be treated, stored, or

disposed of at the facility and the particular process to

8

be used for the treatment, storage, and disposal of

the waste. 40 C.F.R. § 270.13 (2006). Part B of the

permit application contains site-specific information

including geologic, hydrologic, and engineering data.

40 C.F.R. §§ 270.14-.28 (2006). The processes and

details proposed must comply with the minimum

standards established by RCRA. See 40 C.F.R. §§ 260270 (2006).

RCRA has a public participation process

described in EPA’s RCRA regulations at 40 C.F.R.

§§ 124.10-.12 (2025), which also applies to State

RCRA permitting programs. 40 C.F.R. § 271.14(h)

(1983). Public notice and an opportunity for comment

is required for RCRA permit applications after

tentative denial of a permit application, preparation

of a draft permit, or scheduling of a public hearing.

40 C.F.R. § 124.10(a)(1), (b) (2025).

State environmental agencies can seek

approval from the EPA to administer a hazardous

waste disposal permitting program in conformance

with RCRA. 42 U.S.C. § 6926(b). To be so authorized,

state law (including implementing regulations)

must be at least as stringent as RCRA and EPA’s

RCRA-implementing regulations. In such “RCRA

authorized” states, hazardous waste regulation—

including issuing hazardous waste disposal permits—

is accomplished under state law in lieu of RCRA.

These actions “have the same force and effect as” an

EPA action. 42 U.S.C. § 6926(d). Under this regime,

the state permitting agency has the ultimate decisionmaking authority to accept as complete or deny a

permit application. See, e.g., Wash. Admin. Code

§ 173-303-840(1), (2).

9

RCRA provides for permitting of a wide variety

of actions, from an action which consists solely of

detonating ordnance on a beach, as in the underlying

case, to the long-term landfilling of hazardous wastes

from multiple sources.

Importantly, a RCRA permit may only cover a

portion of a major federal agency action. For instance,

where a federal agency undertakes the cleanup of a

contaminated site, it may need to seek a RCRA permit

for the waste disposal portion of the action if the waste

generated by the cleanup is being disposed of on site.

However, the RCRA permit may not cover other

aspects of the cleanup action such as investigation of

the site, remediation or treatment activities that occur

on site, transportation of the waste to a disposal

facility, construction of temporary facilities on site,

water use or diversion, or any number of other parts

of a cleanup action that do not require a RCRA permit.

As described below, many of these actions may be

covered by NEPA.

2.

NEPA ensures informed

decision-making

agency

While NEPA is a procedural law, its

substantive goal is to “. . . inform agency

decisionmaking,” Seven County Infrastructure

Coalition v. Eagle County, 605 U.S. 168, 173 (2025),

and ensure a “well-considered decision[.]” Vermont

Yankee Nuclear Power Corp. v. Natural Resources

Defense Council, Inc., 435 U.S. 519, 558 (1978).

NEPA’s procedures “ ‘place[ ] upon an agency the

obligation to consider every significant aspect of

the environmental impact of a proposed action,’ ” and

“ensure[ ] that the agency will inform the public that

10

it has indeed considered environmental concerns in its

decisionmaking process.” Baltimore Gas & Elec. Co. v.

Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)

(quoting Vt. Yankee Nuclear Power Corp, 435 U.S.

at 553). In order to inform a decision, an analysis must

necessarily happen before the decision is made.

Congress codified this foundational idea

by mandating that federal agencies complete a

“detailed statement” on the “reasonably foreseeable

environmental effects” and “a reasonable range of

alternatives” on a proposed major federal action that

may significantly impact the environment. See, e.g.,

42 U.S.C. § 4332(2)(C). This detailed statement is

an environmental impact statement, or EIS. Id.

at § 4336(b)(1). For actions that will not have a

reasonably foreseeable significant effect, or where it is

unclear if the effect will be significant, the agency can

complete a shorter environmental assessment (EA).

Id. at § 4336(b)(2). Federal agencies conducting

such actions then have the option of choosing an

action that reduces potential harm and enhances

ecological, social, and economic well-being. See, e.g.,

id. at §§ 4331, 4332(2)(A). For instance, the

Department of War can use “an early and open”

NEPA scoping process to identify “substantive

issues that meaningfully inform the consideration

of environmental effects and the resulting decision

on how to proceed[.]” Dep’t of War, National

Environmental Policy Act Implementing Procedures

14, (version 1.2, Apr. 30, 2026), https://www.denix.

osd.mil/nepa/denix-files/sites/55/2026/05/DOWProcedures-Combined_05252026_V1.2.pdf. Federal

agencies can even choose to implement mitigation to

reduce environmental impacts and in some cases

11

reach a finding that the mitigated action will lead to

no significant environmental impacts (a “Finding of

No Significant Impact,” or FONSI). See, e.g., id. at 12

(“If DoW finds no significant effects based on

mitigation, the mitigated FONSI will state any

mitigation requirements enforceable by the DoW or

voluntary mitigation commitments that will be

undertaken to avoid significant effects.”). Where an

agency finds that mitigation avoids significant

impacts and issues a FONSI, the agency would not

need to complete an EIS.

Public participation is built into NEPA’s

structure in order to improve agency decision-making.

Each notice of intent to prepare an EIS must include

a request for public comment before an agency has

determined which form of action to take. 42 U.S.C.

§ 4336a(c). This Court has recognized that the

publication of an EIS serves as a “springboard” for

further public participation through public comment.

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

332, 349 (1989). Providing notice to the public also

begins the NEPA scoping process, providing further

opportunities to interested parties to provide input

on the range of issues to be addressed in an EIS.

42 U.S.C. § 4336a(c). The federal agency can then

incorporate this information into their analysis and

ultimate choice of action.

NEPA also creates an important role for

States in the environmental review process. When

enacting NEPA, Congress declared that the federal

government must act “in cooperation with States

and local governments” to evaluate potential

environmental impacts and directly incorporated

12

states into the process. 42 U.S.C. §§ 4331(a),

4332(2)(G), 4336a(a)(1)(B), 4336a(a)(3). The Amici

States rely on this participation in the NEPA

process to protect their quasi-sovereign interest

in preventing harm to the health of natural

resources and ecosystems. In this regard, States are

entitled to “special solicitude” in seeking redress

for environmental harms within our borders.

Massachusetts v. EPA, 549 U.S. 497, 519-22 (2007).

States secure meaningful participation and

opportunities to protect their people and resources

under NEPA through serving as a Joint Lead Agency

or Cooperating Agency, federal consultation with

state agencies, and public comment opportunities.

42 U.S.C. §§ 4332(2)(G), 4336a(a)(1)(B), 4336a(a)(3),

4336a(c). Through these engagement opportunities,

States share information about potential state

environmental impacts with the lead federal agency.

This information is especially meaningful where the

federal agency was not aware of these potential

impacts. This can happen, for instance, where states

share information about state endangered species or

the location of cultural resources. They can also work

with the federal agency to better understand the

proposed action and thus how the action could impact

State interests.

NEPA’s enactment served as a model to the

States, many of which enacted their own

environmental review laws or “little NEPAs” to

protect public health and the environment.1 Examples

1 NEPA.Gov, State, Tribe, and Local Government

Information,

https://nepa.gov/content/state-tribe-and-localgovernment-information (last visited July 22, 2026).

13

include the Maryland Environmental Policy Act, Md.

Code Ann., Nat. Res. §§ 1-301–305, New York’s State

Environmental Quality Review Act, N.Y. Envtl.

Conserv. Law. art. 8; N.Y. Comp. Codes R. & Regs.

tit. 6, § 617, and Washington’s State Environmental

Policy Act, Wash. Rev. Code §§ 43.21C.010-.914;

Wash. Admin. Code §§ 197-11-010 to -990. These little

NEPAs create a process so that states can protect

their own state resources. Some of the little NEPAs

also include mitigation provisions that provide a

powerful tool for states to reduce environmental

impacts. See, e.g., Wash. Admin. Code § 197-11-660.

The public participation built into NEPA gives

states and the public a unique opportunity to

participate in agency decision-making before an

agency has determined the exact contours of their

project.

3.

NEPA provides unique benefits to

the Amici States where a federal

agency applies for a RCRA permit

The different structures and requirements of

RCRA and NEPA mean that one is not the substitute

for the other.

a.

NEPA improves state agency

RCRA permitting

NEPA’s mandate applies before a federal

agency determines which major federal action it will

take. It is not until after the completion of the NEPA

process, and making a final decision, that a federal

agency knows the specifics of the type of storage,

treatment, or disposal action it will take. Because of

this, the NEPA process happens before the federal

14

agency would even apply for a RCRA permit. It is

precisely for this reason that the NEPA process can

improve the RCRA permitting process by providing

data about environmental impacts to inform the

RCRA permitting process.

States can use this information to craft RCRA

permit terms to protect their state interests. And

contrary to the Air Force and its amici’s arguments,

requiring NEPA review prior to submitting a RCRA

application is workable and routine. A good example

of the benefits of NEPA and RCRA working together

is the Hanford cleanup site located in Southeast

Washington State. Starting in 1940, the federal

government developed and operated nuclear reactors

at Hanford to produce plutonium for World War II’s

Manhattan Project. See generally Energy.Gov,

The Hanford Site, Understand the PAST,

https://www.hanford.gov/page.cfm/understandPAST

(last visited July 22, 2026). While critical to America’s

defense systems, this process created staggering

amounts of hazardous waste and radiological

material, which accrued over a fifty-year period. This

left Hanford the biggest cleanup site in the United

States, and one of the biggest in the world. Beginning

in 1987, the Department of Energy (DOE) and the

EPA worked with Washington State to start cleaning

up the Hanford Site.

The federal government has completed

multiple NEPA reviews and needed multiple

modifications of its state-issued RCRA hazardous

waste permit in undertaking this long-term, multipart cleanup. One of these modifications addresses

construction and operation of a key landfill known as

the Integrated Disposal Facility, which is intended for

15

waste treated by Hanford’s massive Waste Treatment

Plant complex. Wash. Dep’t of Ecology, Hanford

Facility Resource Conservation and Recovery Act

(RCRA) Permit, Dangerous Waste Portion for the

Treatment, Storage, and Disposal of Dangerous Waste,

https://fortress.wa.gov/ecy/nwp/permitting/hdwp/rev/

8c/index.html (last visited July 22, 2026). This

proposed landfill construction and operation action

also triggered NEPA. See U.S. Dep’t of Energy,

DOE/EIS-0391:

Final

Environmental

Impact

Statement (FEIS) (Nov. 2012), https://www.energy.

gov/nepa/articles/doeeis-0391-final-environmentalimpact-statement-november-2012. DOE worked with

the Washington State Department of Ecology to draft

the EIS, see 1 FEIS, Ecology Foreword, at 2-3, which

includes extensive analysis of waste disposal

alternatives for the landfill. See e.g., 1 FEIS, at 5-421–

5-1292 (ch. 5, pts. 3-6).

The analysis in this EIS was not required

by RCRA itself to secure a landfill permit. The

Washington State RCRA implementing regulations

for landfill permit applications found at Wash. Admin.

Code § 173-303-806(4)(h) lay out the requirements for

securing a RCRA landfill permit. While extensive,

these requirements do not include the in-depth and

comparative alternatives analysis required by NEPA,

which allowed DOE and Ecology to model long-term

impacts from disposal at the landfill of several

different waste treatment technologies for hazardous

waste generated through cleanup of the site. This

information provided the basis for waste disposal

conditions to protect against the impacts identified

through the NEPA process included by the

Department of Ecology in the RCRA permit

16

chapter for the landfill. See Wash. Dep’t of Ecology,

Hanford Dangerous Waste Permit 8C, Integrated

Disposal Facility Operating Unit Group 11 (OUG-11),

at condition III.11.E Waste Stream Acceptance,

https://fortress.wa.gov/ecy/nwp/permitting/hdwp/rev/

8c/IDF/conditions.pdf (last visited July 22, 2026). It

was the NEPA process, not the RCRA permit

application, that gave Washington the information it

needed to craft permit conditions to protect the state

from the environmental impacts of hazardous waste

disposal.

Additionally, States can use the NEPA process

to reduce delays in the RCRA permitting process. A

state permitting agency reviewing a RCRA permit

application will often conduct a state environmental

review of the state agency’s issuance of a RCRA

permit. When a federal agency is proposing a major

federal action requiring a RCRA permit, the state

agency can build off the federal agency’s NEPA

process to fulfill their own state review requirements.

In some cases, state agencies can even use a federal

EIS to fulfill their obligations under a state

environmental review law. See, e.g., Wash. Admin.

Code § 197-11-610(3); N.Y. Comp. Codes R. & Regs.

tit. 6, § 617.15(a).

Were NEPA not to apply to major federal

actions requiring a RCRA permit, this absence would

increase the burden on the Amici States with a

little NEPA. Without a NEPA analysis from the

federal agency, a state permitting agency would face

the burden of conducting analysis and producing

environmental documents under its own state statute.

This would place an additional burden on existing

agency staff and potentially introduce delay.

17

Because a RCRA permit application does not

include all the information required of a NEPA or

little NEPA analysis, States may also have to

take the additional step of requesting information

from the federal agency in order to conduct their

own state level environmental analysis. For instance,

the federal agency may have exclusive access to

the transportation plans for a disposal action or the

modeling of groundwater effects thousands of years

into the future necessary to understand the impacts

of radiological materials disposal. This additional step

of requesting information, including potential followup requests to ensure complete information, will take

time. This time will delay the ultimate permit

approval process. The federal agency is better placed

to conduct this analysis more efficiently in the first

place.

As a result, exempting major federal actions

requiring a RCRA permit from NEPA’s environmental

review mandate would not simplify or expedite the

permit process for states with a little NEPA. Rather,

the burden of environmental review would shift to

state and local jurisdictions with little NEPAs. This

could lead to additional processing time for a RCRA

permit and delay the proposed federal action.

b.

NEPA’s alternatives analysis

provides a unique opportunity

to shape federal decisionmaking

NEPA’s mandate that agencies analyze project

alternatives ensures that federal agencies have the

chance, though not the obligation, to take a less

18

environmentally impactful action. In contrast, RCRA

does not have a requirement that an applicant

propose, let alone analyze, reasonable alternatives to

the proposed disposal action.

NEPA requires an agency to analyze the

environmental impacts of three categories of potential

actions: the proposed action, not taking the proposed

action (the “no-action alternative”), and reasonable

alternatives to an agency’s proposed action in an EIS.

See 42 U.S.C. §§ 4332(2)(C)(iii), (F). This requires

agencies to “identify feasible alternatives that could

mitigate” the “significant environmental effects of a

proposed project[.]” Seven Cnty. Infrastructure Coal.,

605 U.S. at 172. This analysis is so fundamental

to NEPA that failure of an agency to consider

alternatives leads to reversal of the decision. Yakima

Valley Cablevision, Inc. v. FCC, 794 F.2d 737, 746 &

n.36 (D.C. Cir. 1986) (the “failure of an agency to

consider obvious alternatives has led uniformly to

reversal” (collecting cases)); see, e.g., Motor Vehicle

Mfr. Ass’n of the U.S., Inc. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 48 (1983) (failure to “even

consider the possibility” of “this alternative way of

achieving the objectives of the Act” was arbitrary and

capricious).

NEPA explicitly requires agencies to solicit

“public comment on alternatives” as well as “impacts

and on relevant information, studies, or analyses with

respect to the proposed agency action” before the

federal agency has even begun drafting the EIS.

42 U.S.C. § 4336a(c). This statutory requirement

ensures that members of the public, including states,

can provide information the agency may not have

and propose potential alternatives the federal agency

19

may not have considered. See New Mexico ex rel.

Richardson v. Bureau of Land Mgmt., 565 F.3d 683,

708 (10th Cir. 2009) (“Without substantive,

comparative environmental impact information

regarding other possible courses of action, the ability

of an EIS to inform agency deliberation and facilitate

public involvement would be greatly degraded.”). This

information from States can include the location

of culturally sensitive resources, the distribution

of state-endangered species, the presence of

overburdened communities, and community-specific

patterns of resource use. Any of this information

could be used by the federal agency to develop an

alternative or modify an action to prevent or lessen

environmental impacts.

As one example, at the Hanford cleanup site in

Washington State, the NEPA alternatives process

played an important role in protecting Washington’s

environment. Through the NEPA cooperating agency

process, Ecology helped to “formulate the

alternatives” in the EIS. 1 FEIS, Ecology Foreword,

at 2. In this process, DOE and Ecology found that one

potential landfill location on the east of the site would

lead to fewer environmental impacts than another

location on the west of the site. 1 FEIS Ecology

Foreword, at 14. Because of the NEPA alternatives

analysis, the DOE ultimately applied for a RCRA

permit for a landfill located on the eastside of the site.

Were the DOE not required to consider alternatives

through NEPA, it may not have considered or

analyzed this location. Ecology, as the RCRA permit

issuing agency, would only be able to review the

proposed location in the application. If the more

impactful westside location could meet the standards

20

in RCRA, the less impactful eastside location may

never have been considered. In this scenario,

Washington would suffer the harm from the

additional environmental impacts of the more

impactful westside location that could have been

avoided through a NEPA analysis.

In stark contrast, RCRA does not require a

consideration of alternatives. It would be quite

a complicated permit application that included

environmental analysis and information for each

of several reasonable alternatives to the proposed

disposal action.

The Air Force points to a requirement in RCRA

to consider “improvements in the state of control and

measurement technology” as an alternatives analysis.

Pet’r’s Br. 38; 42 U.S.C. § 6925(c)(3). However, this is

not equivalent or even similar to a NEPA alternatives

analysis. This statutory provision requires an

applicant to keep up with advances in control and

measurement technology as a permit is renewed.

It does not require the applicant to consider

reasonable alternatives to the chosen disposal action.

For instance, it does not require the applicant to

consider alternative disposal locations, or alternative

transportation methods or routes. Neither does it

require the applicant to consider wholly alternative

disposal methods, as opposed to improvements in a

particular disposal method. The Air Force argues it

was limited in the available disposal methods in

this instance (see Pet’r’s Br. 38). Contra Nat’l Acads.

of Scis., Eng’g, & Med., Alternatives for the

Demilitarization of Conventional Munitions 1 (2019),

https://perma.cc/9Z2R-ALSQ (“Over time, a number of

technology alternatives to OB/OD have become

21

available and more are in research and

development.”). Even assuming this is true, it would

not apply to all RCRA permit applicants. It is possible

to imagine a different situation where the Air Force

could have transported expired ordnance to another

disposal site, for instance, or used alternative

technologies. Fundamentally, nothing in RCRA

requires the applicant to consider alternatives before

submitting a RCRA permit application.

To be sure, a state agency can put conditions on

a RCRA permit to ensure compliance with their

RCRA-equivalent state law. However, the state

agency does not have the authority to request

an applicant to consider information traditionally

developed only as part of a NEPA process, such as a

different disposal location, or to provide information

on the transportation method and routes expected to

be used.

The alternatives analysis under NEPA

provides states and the public with an opportunity

to impact the federal action to protect people and

resources in a way that is not possible under RCRA.

c.

NEPA’s

broader

scope

provides States with valuable

information

RCRA permit applications do not include

the same rigorous environmental analysis of all

reasonably foreseeable environmental impacts

required under NEPA. See 42 U.S.C. § 6925(b),

42 U.S.C. § 4332(2)(C)(i)-(ii). A RCRA permit

application’s environmental risk assessments are

discrete and site-specific, focusing on the

characteristics of the waste in question, facility

22

design, and protective measures for proximate soil

and water. As the Ninth Circuit observed, the

environmental disclosures in the Air Force’s RCRA

application are “short and minimally descriptive,” and

“certainly not ‘precise’ by scientific or environmental

standards.” Prutehi Litekyan: Save Ritidian v. U.S.

Dep’t of Airforce, 128 F.4th 1089, 1116 (9th Cir. 2025),

cert. granted sub nom. Dep’t of the Air Force v. Prutehi

Guahan, 146 S. Ct. 1794 (2026).

RCRA’s mandate to provide information to

determine if an applicant can meet the standards

under RCRA and the EPA’s implementing regulations

at 40 C.F.R. § 264 generate information about the

disposal action itself. In contrast, NEPA looks at

the reasonably foreseeable environmental impacts

of a proposed action, including “any reasonably

foreseeable

adverse

environmental

effects[.]”

42 U.S.C. § 4332(2)(C)(i)-(ii) (emphasis added). This

extends beyond the single act of storage, treatment, or

disposal for many major federal actions.

For example, the RCRA permit application

process for operation of a hazardous waste disposal

site in Southeastern Washington, the Hanford

disposal site, covered the environmental impacts of

the operation of a landfill to ensure it meets the

standards required under RCRA. But it did not look

at the environmental impacts of the ship, truck, or

train traffic necessary to transport waste to the

facility, which are completely outside any RCRA

permitting requirements. Some of this analysis

happened under NEPA when the United States Navy

proposed to transport waste to the facility. The Navy

assessed their plan to dispose of decommissioned,

defueled Naval Reactor Plants from USS Enterprise

23

at the Hanford disposal site in an environmental

assessment. U.S. Dep’t of the Navy, Final

Environmental Assessment on the Disposal of

Decommissioned, Defueled Naval Reactor Plants

from USS Enterprise (CVN 65) (Aug. 2012),

https://www.hanford.gov/files.cfm/final_EA_aug2012.

pdf (herein-after EA). The EA analyzed the impacts to

the environment at the Puget Sound Naval Shipyards,

the initiating site of the waste, then looked at the

impacts to the water transportation route used to

move the waste, and finally assessed the impacts from

the ultimate land disposal at Hanford. EA at 3-1–314. This analysis would not have happened under the

RCRA application for operation of the Hanford site.

Similarly, a RCRA application may document

how a disposal facility will meet RCRA requirements

for disposal of hazardous waste mixed with

radioactive materials. However, it does not compel the

analysis of reasonably foreseeable impacts to

groundwater continuing for thousands if not millions

of years. In contrast, NEPA would look at this

potential impact where it is reasonably foreseeable. A

State agency reviewing a RCRA application would not

have the benefit of this long-term impact analysis

unless the applicant also does a NEPA analysis.

Significantly, RCRA also does not require analysis of

the cumulative impact of one disposal action with

respect to other disposal actions. States can use this

information developed through the NEPA process to

better protect their environment, people, and

resources.

Another example of the broader scope of NEPA

review is the issuance of hazardous waste permits in

Colorado. The Colorado Department of Public Health

24

& Environment administers the Colorado Hazardous

Waste Act (CHWA), which operates in lieu of RCRA in

the state. Colo. Rev. Stat. § 25-15-301. Colorado also

does not have its own state-level environmental

review statute. There are currently three federal

facilities with CHWA permits in Colorado: the Pueblo

Chemical Depot, a former chemical weapons storage

facility; the Pueblo Chemical Agent-Destruction Pilot

Plant (PCAPP), a decommissioning chemical weapons

destruction facility built to destroy mustard agent

munitions previously stored at the Pueblo Chemical

Depot; and Fort Carson, an active army base with

hazardous waste storage facilities. During the initial

PCAPP permitting process, the Army conducted a

NEPA analysis regarding potential mustard agent

destruction impacts on the surrounding community.

See generally Dep’t of the Army, Destruction of

Chemical Munitions at Pueblo Chemical Depot,

Colorado: Final Environmental Impact Statement

(Mar. 2002), https://oitco.hylandcloud.com/cdpherm

pop/docpop/docpop.aspx.

In general, the NEPA analysis undertaken as

part of a state hazardous waste permit application in

Colorado provides an extra layer of protection for

citizens and adds value to the CHWA permitting

process. While there is some overlap between RCRA

and NEPA, that overlap is not complete. The

PCAPP NEPA analysis looked at traffic and safety

considerations, light pollution, and cultural resource

impacts. The NEPA analysis also considered air

quality issues beyond those analyzed as part of the

CHWA permit, including traffic-related vehicular

emissions, and possible impacts on organic farmers in

25

the rural area adjacent to the Pueblo Chemical Depot.

Provision of this information through the NEPA

process ensured that the public understood the

potential impacts of the proposed action and could

meaningfully participate in the decision-making

process before the Army decided on a particular

alternative. The NEPA process also ensured that

Colorado had relevant information about impacts to

state resources to inform their coordination with the

Army.

Under the RCRA permitting process, there is

not a clear path for a state permitting agency to

request information covered by NEPA, but not RCRA,

from the federal agency. Without the obligation

to conduct a NEPA review of major federal actions

requiring a RCRA permit, states and federal agencies

would be left in the dark.

RCRA’s lack of an alternatives analysis and

consideration

of

all

reasonably

foreseeable

environmental effects means it is neither “sufficiently

similar” to NEPA, nor the equivalent of NEPA.

CONCLUSION

The question here is whether a federal agency

must make an informed decision about how to store,

treat, and dispose of hazardous waste. NEPA requires

the federal agency to do exactly that. RCRA on its

own does not require the development of feasible

alternatives and the analysis of all reasonably

foreseeable environmental effects of a major federal

action. NEPA review of major federal actions that also

require a RCRA permit is instrumental to Amici

States in protecting their people, environment, and

natural resources.

26

History has shown how NEPA’s mandate

provides information and participation opportunities

beyond the RCRA permitting process. This better

equips states to protect their residents, environment,

and resources. It is not a meaningless paperwork

exercise—it has real, on-the-ground implications for

the human environment within our states. Federal

agencies use this information to develop less

impactful alternatives. Amici States can use the

alternatives analysis and the information developed

as part of the NEPA process to craft more protective

RCRA permit terms and advocate for protection of

their resources.

To resolve the second question presented, this

Court should hold that federal agencies proposing a

major federal action that requires a RCRA permit

must also comply with NEPA.

RESPECTFULLY SUBMITTED.

NICHOLAS W. BROWN

Attorney General

State of Washington

NOAH G. PURCELL

Solicitor General

PETER B. GONICK

Deputy Solicitor General

Counsel of Record

ELIZABETH HARRIS

Assistant Attorney General

July 27, 2026

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6200

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