The Recent Evolution of NEPA
Born out of the environmental ethos of the late 1960s, the National Environmental Policy Act of 1969 (NEPA) has stood as the gateway through which “legislation and other major Federal actions significantly affecting the quality of the human environment” must go before coming to fruition. NEPA requires that agencies with discretionary approvals over a given action follow a procedural process in which they must take a “hard look” at the environmental impacts of the proposed action and consider alternative options that may be less detrimental to the environment.
Many decisions over the past several years have limited the scope and reach of NEPA in the name of streamlining environmental reviews, which are notoriously time-consuming. These include: the Fiscal Responsibility Act of 2023, which amended NEPA to require the evaluation of only “reasonably foreseeable” environmental effects from the proposed action, and allow agencies to only consider alternatives that “meet the purpose and need of the proposal;” Executive Order 14154, which led the Council on Environmental Quality (CEQ) (the federal agency responsible for promulgating NEPA regulations) to rescind all of NEPA’s implementing regulations (leaving the question of how to implement NEPA in the hands of individual agencies); and Seven County Infrastructure Coalition v. Eagle County, Colorado, in which the Supreme Court directed lower courts to defer to agencies’ discretion when it comes to deciding how much analysis is required under NEPA.
Given these recent changes to how NEPA is implemented, the future of the Act and its requirements are uncertain.
The Next NEPA Question: Department of the Air Force v. Prutehi Guahan
In Department of the Air Force v. Prutehi Guahan (the Case), the Supreme Court will address whether an agency’s submission of a permit application triggers NEPA review and whether the procedural environmental review requirements of a permit application can stand in for a traditional NEPA review.
Facts and Background
The Case centers around the Andersen Air Force Base (AAFB), located in Guam, which uses a beach area to dispose of munitions—some of which contain hazardous materials—via open burning and open detonation operations. The disposal area is located over an aquifer that supplies nearly all of Guam’s drinking water.
AAFB has been disposing of munitions in this location and in this manner since the early 1980s, an activity authorized by a hazardous waste management facility permit, issued in compliance with the Resource Conservation and Recovery Act (RCRA). AAFB must apply to renew its RCRA permit every three years. In 2021, the Air Force submitted a RCRA permit renewal application to the Guam Environmental Protection Agency without conducting a NEPA review. Notably, in addition to seeking continued open detonation, the 2021 application proposed restarting open burning operations that had been inactive for years.
Under the Administrative Procedure Act (APA), when a permittee submits a timely and sufficient permit renewal application, the permittee’s existing permit will continue to be in effect until the permitting agency makes a final determination on the renewal application. As a result, the Air Force has been allowed to continue disposing of munitions under its previous permit while the renewal remains pending.
In response, Prutehi Guahan, an environmental nonprofit organization, challenged the submission of the renewal application as a violation of NEPA. While the District Court of Guam dismissed the suit, the 9th Circuit reversed in a 2-1 decision, holding that the Air Force engaged in a final action when they committed to continuing to dispose of munitions in this manner and location by submitting its RCRA permit renewal application. The court also found that the Air Force did not take the requisite “hard look” at the environmental impacts of such prior to submitting their application.
Two Questions: Final Agency Action and Functional Equivalence
The legal arguments in the Case fall into two administrative issues:
First, what constitutes final agency action?
Under the APA, an action is not judicially reviewable unless it is a “final agency action,” so a primary question raised by the Case is whether applying for a hazardous waste management facility permit can constitute a final agency action. The Air Force argues that under existing Administrative Law jurisprudence, an application for a permit is typically considered a non-final action, as the agency with discretion to grant the permit has not yet made a final decision on the permit application.
However, Prutehi Guahan argues that submitting the permit application is a manifestation of the Air Force’s commitment to conduct munitions disposal in the proposed location. Submitting the renewal application also allows the Air Force to continue operating under their previously issued RCRA permit. Therefore, the application submission constitutes a final agency action that required prior review under NEPA.
Second, does NEPA require more environmental review than RCRA’s permitting regulations?
The Air Force notes that it has never before been required to do a NEPA review for any of its permit renewal applications since the early 1980s, and it argues that the environmental review considerations required by the RCRA permitting are the functional equivalent of a NEPA review, rendering a traditional NEPA review unnecessary.
Prutehi Guahan argues that while federal regulations exempt the permitting authority from completing a NEPA review when issuing a RCRA permit, that does not relieve a separate operational federal agency—such as the Air Force—from analyzing the environmental impacts of its own underlying decision to seek that permit. Additionally, other types of federal and federally delegated environmental permits also involve elaborate environmental review considerations, but do not preclude the need for agencies to comply with NEPA or any of its state law analogs.
Potential Rulings and Their Impact
Now that the Supreme Court has granted certiorari, there are three possible paths the ruling could take.
The Court may find that submission of an application is not a final agency action, meaning the Air Force’s submission of a renewal application is not reviewable. This would allow the Court to dispose of the Case without reaching the question of whether the Air Force should have conducted a NEPA review prior to submitting their application—a result aligned with traditional Administrative Law jurisprudence.
If the Court determines the Air Force’s submission of the application does constitute a final agency action, it could result in a significant upheaval in how federal agencies apply for permits and mark a divergence from the traditional conception of final agency actions. As a result, federal agencies would face an earlier and far more onerous NEPA compliance obligation, forcing environmental reviews to occur before a regulatory agency even evaluates the viability of a proposal.
On the other hand, if the Court finds in favor of the Air Force’s argument that the RCRA permitting process’s environmental review requirements make NEPA review unnecessary, it would fundamentally change requirements for environmental permit applicants across the country. Because many environmental permit application processes require thorough review of environmental impacts, finding that a permitting process’s environmental review can supersede NEPA review could make NEPA review unnecessary for all sorts of environmental permit applications. This would mark an enormous shift in how NEPA currently functions.
Striking a Balance Between Efficiency and Environmental Protection
As the Supreme Court considers Department of the Air Force v. Prutehi Guåhan, the overarching question is how to balance procedural environmental protections with increasing pressures to make government more efficient. A holding in favor of the Air Force could reduce a significant amount of time dedicated to potentially duplicative environmental reviews where comprehensive review frameworks like RCRA already govern. Conversely, a ruling for Prutehi Guahan would ensure that major federal commitments receive public and environmental scrutiny at the earliest possible stage, before agencies devote significant time and resources to taking a specific course of action. Whichever path the Justices take, the resolution should offer clarity on how environmental statutes must co-exist in an increasingly streamlined regulatory landscape.
Sources:
42 U.S.C. § 4321 et seq.
5 U.S.C. § 551 et seq.
Xan Fishman, How Does the Fiscal Responsibility Act Reform Permitting and Environmental Review? Bipartisan Policy Center (June 2, 2023), https://bipartisanpolicy.org/article/fiscal-responsibility-act-permit-reform/ (last visited Aug. 1, 2026).
Seven Cnty. Infrastructure Coal. V. Eagle Cnty, 605 U.S. 168, 169 (2025).
Council on Environmental Quality, Memorandum for Heads of Federal Departments and Agencies: Implementation of the National Environmental Policy Act (2025).
Petition for Writ of Certiorari, United States Department of the Air Force v. Prutehi Guahan, No. 25-579 (Nov. 14, 2025).
Brief of Petitioner, United States Department of the Air Force v. Prutehi Guahan, No. 25-579 (July 20, 2026).
Brief of Respondent, United States Department of the Air Force v. Prutehi Guahan, No. 25-579 (May 22, 2026).
Ritidian v. United States Dep’t of the Airforce, 128 F.4th 1089 (9th Cir. 2025).
Summary of Key Statutes That Affect Federal Facilities, Environmental Protection Agency (Oct. 2, 2025), https://www.epa.gov/fedfac/summary-key-statutes-affect-federal-facilities (last visited Aug. 1, 2026).