The US Supreme Court on Wednesday mulled whether and how permit applicants must comply with environmental review statutes that have conflicting mandates and involve different agencies.
The case could tilt the delicate balance between federal and state regulators, which share authority over environmental permitting decisions. The Trump administration has consistently said the federal government exercises too much power over states, and has tried to push more control down to the state level.
During oral arguments in a dispute between the Department of the Air Force and the Guam-based environmental group Prutehi Guahan, several justices questioned the government’s claim that the permitting requirements of the Resource Conservation and Recovery Act conflict with those of the National Environmental Policy Act.
Justice Sonia Sotomayor questioned whether the two statutes conflict at all, even if they “may cover some of the same ground.”
Justice Department attorney Sopan Joshi said the government’s position isn’t that “there has to be a metaphysical impossibility of complying with both statutes.”
“I think a conflict can be just inconsistency between the two,” he said.
But that stance seemed only to trigger questions about why the Air Force couldn’t simply have complied with both RCRA and NEPA.
“Don’t we usually say, ‘If you can do both — if you can comply with both of Congress’ commands — you should do so?’,” asked Justice Neil Gorsuch.
Caroline Flynn of Earthjustice, representing Prutehi Guahan, voiced the same argument, saying NEPA’s provisions can be harmonized with RCRA’s, meaning the Air Force should comply with both.
Final Action?
At issue is the Air Force’s practice of blowing up and burning munitions laden with hazardous waste on a beach in Guam. The Air Force has held a permit from the Guam Environmental Protection Agency to carry out that activity since 1982, under RCRA.
But when the Air Force applied to renew its permit in 2021, Prutehi Guahan sued, arguing it should have first prepared an environmental assessment or environmental impact statement under NEPA — something the Air Force had never done here.
A Guam district court dismissed the suit in 2022, finding that the Air Force’s application for a permit renewal can’t be reviewed under the Administrative Procedure Act because it’s not a “final agency action,” and that RCRA has its own environmental review provisions that override NEPA’s provisions.
The Guam district court’s decision was overturned last year by the US Court of Appeals for the Ninth Circuit, which found the government must prepare an EIS under NEPA as part of the permit renewal process.
The majority of justices seemed to agree that the application for a permit was not a final action subject to APA review.
The Air Force’s position, laid out in its petition, is that the submission of its application to the Guam EPA “marked the beginning, not the end, of the process” by which the agency will decide whether to renew the permit.
The renewal request therefore wasn’t the consummation of an agency’s thought process, but merely an “interlocutory step along the way,” according to the petition.
Chief Justice John Roberts tested that position, asking Joshi if the government is arguing “there’s no point at which the Air Force’s decision can be challenged” because even if the Guam EPA has granted the permit, “you could always change your mind. You could say, ‘Oh, OK, now we’re going to do something different’?”
In response, Joshi said the application “is never going to become final agency action.”
“It seems like our intuition here is that, really, the final action would be the approval or disapproval of the application, which is on the Guam EPA,” said Justice Amy Coney Barrett.
Kevin Minoli, a former EPA acting general counsel who is not involved in the litigation, said he believed the court is “likely to simply conclude that the submission of an application is not a final agency action.”
Minoli, now a partner at Alston & Bird LLP, also said he was struck by how little the justices discussed the impact of a decision that an application for a permit filed by a federal agency is a final action would have on the many thousands of permits held by the federal government.
“Perhaps sensing that, counsel for the Air Force sought to make clear in his brief rebuttal that such a decision would open the floodgates for new litigation,” Minoli said.
The case is Dep’t of the Air Force v. Prutehi Guahan, U.S., No. 25-579, oral arguments 10/7/26.