When a federal agency applies for a permit, has it made a “final” decision that courts can review, or is it just one step in a longer regulatory process? And to what extent do the environmental review requirements of one foundational environmental statute displace that of another?
The Supreme Court will take up these questions in Department of the Air Force v. Prutehi Guahan, No. 25-579, set for argument in the term beginning October 2026. Although arising from a hazardous waste dispute on Guam, the case could have broader implications for lawsuits challenging federal permit applications, as well as for how courts handle the overlap between the National Environmental Policy Act (NEPA) and other federal environmental statutes.
Background
Since 1982, the Air Force has operated a hazardous waste treatment facility at Andersen Air Force Base on the U.S. territory of Guam. The facility uses open burning and open detonation (OB/OD) operations to destroy unexploded World War II-era munitions on Tarague Beach. It operates under permits administered by the Guam Environmental Protection Agency (Guam EPA) under the federal Resource Conservation and Recovery Act (RCRA), for which the Air Force must apply for renewal every three years. In May 2021, the Air Force submitted an application for renewal—its latest in a decades-long series—without first conducting any environmental review under NEPA.
Prutehi Guahan (formerly Prutehi Litekyan), a Guam-based nonprofit focused on protecting the island’s natural and cultural resources, sued. The group alleged that the Air Force’s OB/OD operations posed serious environmental risks—including to drinking water, endangered green sea turtles, and the air and ocean—and argued that the Air Force should have been required under NEPA to evaluate those impacts and consider alternatives before committing to its disposal plan in its permit application. Critically, the lawsuit doesn’t challenge any final permit renewal decision, which Guam EPA still hasn’t issued.
The district court dismissed the suit, finding that the permit application wasn’t a “final agency action” reviewable under the Administrative Procedure Act (APA) and concluding that RCRA’s environmental review procedures were the “functional equivalent” of NEPA review in this context. A divided Ninth Circuit panel reversed on both issues and sent the case back to the district court. The government asked the Supreme Court to review the Ninth Circuit’s decision, and the Supreme Court has now agreed to do so.
The Two Questions Before the Court
- Is a Permit Renewal Application “Final Agency Action”? Under the APA, courts can only review “final agency action,” which is defined as an agency action that (1) marks the “consummation” of the agency’s decisionmaking process and (2) determines legal rights or obligations or produces legal consequences. The government argues that a permit application still pending before Guam EPA is “a far cry from final agency action” because it begins a regulatory process rather than ending one, and it carries no legal consequences until the permitting authority acts. According to the Ninth Circuit, the application committed the Air Force to its decision about how and where to dispose of waste, and it imposed a concrete legal consequence because any renewed permit would be “predicated on the representations made and the disposal plans set forth in the Air Force’s application.”
- Does RCRA Displace NEPA for Federal Permit Applicants? The second question is whether a federal agency that follows RCRA’s hazardous-waste permitting procedures must also separately comply with NEPA’s environmental review requirements. The government argues that RCRA is a “comprehensive environmental statute” whose review provisions serve as the “equivalent and more specific counterpart of NEPA” here, and points to Eleventh Circuit precedent and a longstanding EPA regulation that exempts RCRA permits from certain NEPA requirements. Prutehi Guahan responds that prior cases exempting agencies from NEPA applied only to environmental agencies like EPA tasked with enforcing environmental statutes, not to operational agencies like the Air Force; that the EPA regulation petitioners cite applies only when EPA is the permitting authority (and Guam EPA hasn’t adopted it); and, unlike NEPA, RCRA doesn’t typically require evaluation of alternatives—one of NEPA’s core functions.
Why This Case Matters
This case matters on two fronts. First, how the Supreme Court decides the “final agency action” question could significantly affect the timing and strategy of challenges to a broad range of federal permitting decisions. The government warns that treating permit applications as final agency action would open the door to APA challenges against “each and every permit application” submitted by federal agencies.
Second, the NEPA/RCRA displacement question goes to whether federal agencies can skip NEPA’s “hard look” requirements when they are already subject to another environmental statute’s permitting regime. How the Supreme Court decides the issue has potential implications beyond hazardous waste; it could influence how courts treat the relationship between NEPA and other environmental statutes.
Anyone who regularly deals with federal environmental permitting—whether as a regulated entity or as an agency—should consider how Prutehi Guahan might affect their litigation strategy and compliance posture. We’ll be tracking this case as it heads toward argument, likely in the fall, with a decision expected sometime in early 2027.
