The U.S. Supreme Court heard oral arguments this week in a case that could have far-reaching consequences for deciding how much the National Environmental Policy Act (NEPA) applies to federal permits when other laws may also apply, sources said.
The case – Department of the Air Force v. Prutehi Guåhan — It could also “influence when and how the public can challenge environmental decisions by federal agencies in court,” said Earthjustice, which is representing the Guam-based environmental advocacy group Prutehi Guåhan in the case.
At issue is the US Air Force’s May 2021 renewal application for a Resource Conservation and Recovery Act (RCRA) permit to continue its decades-old practice of detonating munitions on Guam’s Tarague Beach. The permit application is still being reviewed by the Guam Environmental Protection Agency. However, Prutehi Guåhan sued the Air Force in January 2022, alleging that the government violated NEPA by failing to conduct an environmental review when he tried to renew the permit and that he continued to detonate on the beach with an expired permit.
In 2024, a district court in Guam dismissed Prutehi Guåhan’s case, finding that the permit application was not a “final agency action” under the Administrative Procedure Act (APA) and that NEPA review was not necessary because the Resource Conservation and Recovery Act is the “functional equivalent” of NEPA. In 2025, the Ninth Circuit reversed the lower court’s decision, and the Air Force subsequently asked the Supreme Court to review the case.
The Supreme Court justices are considering two questions: Does the conservation and resource recovery permit application constitute a final agency action immediately reviewable under the Administrative Procedure Act, and must the government comply with NEPA’s general environmental review procedures before filing a RCRA permit renewal application?
Earthjustice attorney Caroline Flynn told the court that NEPA is an “umbrella law” meant to harmonize with other environmental laws. “It aims to consolidate and streamline all the necessary environmental analyzes at an early stage to ensure a better decision and better planning,” he said.
Sopan Joshi, an assistant U.S. attorney representing the Air Force, responded that the permit request was not a final action by the agency, as it is still pending before the Guam EPA. “It’s a request to someone else to take action. … Treating a request as final would just lead to a multiplicity of demands throughout an authorization process, which I think defeats the entire requirement of finality,” he said.
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Judge Ketanji Brown Jackson asked Flynn about the “problem of finality” in the case because of the pending decision by the Guam EPA. “We don’t even know in this situation what the final terms will be because it’s subject to the other regulator responding,” he said.
Flynn responded that the issue of purpose is important and that any review the Guam EPA may make will not affect the Air Force’s “fundamental decision” to conduct open detonations at Tarague Beach. “We know that the Air Force is committed to this decision because it has, in fact, been acting on them … continuing these detonation operations into September 2021 when they would have otherwise ceased,” he said.
The US Chamber of Commerce, along with the Associated General Contractors of America (AGC) and several other trade groups, filed an amicus brief in support of the Air Force.
“The Ninth Circuit’s expansive view of the agency’s final action would destabilize established APA doctrine and subject the federal authorization process to premature litigation,” they said in the filing. Requiring NEPA review in addition to RCRA requirements is neither necessary nor adequate to ensure the safety of permitted activities or to inform the public of environmental risks, they said.
“Since the enactment of RCRA in 1976, EPA has understood that “all RCRA permits . . . are not subject to the environmental impact statement provisions of [NEPA]”, they said.
In a separate amicus brief, several other groups, including community-based organizations, the Virgin Islands Bar Association, 11 US states and four Democratic members of the US House Natural Resources Committee expressed their support for Prutehi Guåhan.
Filed by Reps. Jared Huffman (D-CA), Julia Brownley (D-CA), Debbie Dingell (D-MI) and Pablo Jose Hernandez (D-PR), the brief urges the justices to uphold the Ninth Circuit’s decision in this case.
“Simply put, NEPA’s statutory text, Congress’s understanding of that text, and the Department of Defense’s own history of following that text point to one conclusion: NEPA complements other federal environmental laws (both pre-1969 and post-1969) and does not supersede them,” they said.
