The Supreme Court recently agreed to review the 2025 decision of the Ninth Circuit Court of Appeals in Prutehi Litekyan: Save Ritidian v. United States Dep’t of the Airforce, a case challenging the Air Force’s disposal of unexploded ordnance on Tarague Beach in Guam.[1] In a 2-1 ruling, the Ninth Circuit panel held that (1) the Air Force’s decision to seek renewal of a longstanding hazardous waste permit constituted final agency action under the Administrative Procedure Act (APA), and (2) the Air Force should have evaluated the permit renewal under the National Environmental Policy Act (NEPA) before going forward. Given the Supreme Court’s recent attention to both NEPA and the APA, its grant of certiorari in Prutehi suggests continuing interest in clarifying the scope of one or both of these bedrock statutes. The Court’s decision may also address the relation of NEPA to the permitting review requirements of the Resource Conservation and Recovery Act of 1976 (RCRA).[2]
Background
The plaintiff, a nonprofit organization focused on protecting natural and cultural resources on Guam, challenged a 2021 application by the Air Force to renew its hazardous waste treatment and disposal permit under the RCRA. The permit, first issued in 1982 and repeatedly renewed by the Guam Environmental Protection Agency (Guam EPA), allowed “open burning/open detonation” (OB/OD) of unexploded ordnance on a beach in Guam. Plaintiff argued that the Air Force should have complied with NEPA before seeking permit renewal. The district court granted the Air Force’s motion to dismiss, holding that (1) there was no final agency action and (2) NEPA compliance was not required because RCRA is the “functional equivalent” of NEPA. The Ninth Circuit reversed on both grounds.
APA Final Agency Action
The Ninth Circuit relied on the Supreme Court’s two-prong test for “final agency action,” announced in Bennett v. Spear, 520 U.S. 154 (1997): (1) a challenged action “must mark the consummation of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature,” and (2) “it must be one by which rights or obligations have been determined, or from which legal consequences will flow.” The majority found that the Air Force had reached the “consummation” of its decisionmaking process when it filed the permit application. Further, the court found that the permit application imposed legal obligations on the agency because if it were granted, the agency’s conduct would have to conform to representations in the application, or other requirements imposed by Guam EPA. The court also noted that under Guam law, existing permit conditions remain in effect while the agency considers the renewal application, bolstering consistency with Bennett v. Spear’s second prong since legal consequences began to flow for the Air Force immediately when it filed the renewal permit application. (As the government pointed out in its petition, the existence of a similar tolling provision in the APA (5 U.S.C. § 558(c)), could make “every permit renewal application” reviewable final agency action).
Dissenting at length on the “final agency action” point, Judge VanDyke concluded that the application was not “the culmination of Defendants’ decisionmaking process, and it caused no change to the status quo,” but was merely “a routine part of implementing a pre-existing operational plan” that the agency had implemented “for decades.” Id. 1133.
NEPA and RCRA
The court’s NEPA holding relied on Ninth Circuit NEPA doctrine,[3] which asks whether NEPA review processes and those in the alternative statute are “sufficiently similar” that the overlap renders NEPA superfluous, or “significantly different” such that the divergence evidences congressional intent to replace NEPA. Despite noting some similarities, the court concluded that RCRA requirements could not suffice as the “functional equivalent” of NEPA environmental review. Among other things, NEPA requires review before decision-making occurs, while seeking a RCRA permit happens after the government has already decided what it will do. RCRA review therefore does not include the alternatives analysis that is at the heart of NEPA, or the “hard look” at environmental consequences. Id. 1116. The court also noted that the Ninth Circuit has limited “NEPA redundancy exemptions to agencies whose focus is protecting the environment,” and that the Department of Defense is not an environmental protection agency and was not seeking the hazardous waste permit to protect the environment. Id. 1117. Finally, the court noted that in other cases where NEPA compliance was excused, the agency was sued in its capacity as an approving agency or regulator, not as an applicant.
The court also rejected the Air Force’s “significantly different” argument that “’RCRA leaves little room for the imposition of the NEPA requirements.’” The Air Force pointed to an EPA RCRA rule (40 C.F.R. § 124.9(b)(6)) providing that RCRA permits are not subject to NEPA compliance. The court rejoined that the relevant issue was not whether NEPA applies to the permitting process, but whether a government agency must comply with NEPA before it decides to seek a RCRA permit. Id. 1118.
Supreme Court Outlook
The Air Force invoked the recent Supreme Court decision in Seven County Infrastructure Coal v. Eagle County, 605 U.S. 168 (2025), in its petition for certiorari and highlighted the military’s “dangerous munitions that must be quickly destroyed.” This framing is clearly aimed at the Supreme Court’s reservations – expressed emphatically in Seven County – about the excesses of lower courts’ interpretation of NEPA, and its reluctance to allow NEPA to be used to hinder military operations. See, e.g., Winter v. NRDC, Inc., 555 U.S. 7 (2008). It is equally possible, however, that the Court’s primary interest in reviewing Prutehi is to address the increasingly common threshold issue of what constitutes “final agency action.” As the government pointed out in briefing the Prutehi petition, the issue has recently arisen in NEPA cases, including the “Alligator Alcatraz” case in the Eleventh Circuit, and in innumerable instances involving the announced intentions and plans of high-ranking government officials in executive orders, press releases, speeches, and even social media posts regarding government funding, permitting, and personnel decisions.
Case-Framing Challenges for Litigants
The Prutehi case illustrates some challenges that are common for litigants in framing claims and defenses in cases challenging agency action, under NEPA or other statutes. On the plaintiffs’ side, it is often difficult to challenge agency practices that are longstanding and entrenched (and in some cases, predating even the passage of NEPA). Here, a NEPA challenge to the Department’s operations may have held more promise if asserted at the time the agency began permitting those operations in 1982 (the government had raised a statute of limitations defense in the district court), when the departure from the status quo might have more easily have been characterized as a final agency action.
Another recurring challenge for plaintiffs is the APA’s antipathy for challenges to “programs” that are difficult to differentiate from the agency’s day-to-day activities. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 899 (1990) (BLM’s “land withdrawal program” was unreviewable because it constituted “BLM’s day-to-day operations,” not a discrete agency action); Ctr. For Biological Diversity v. United States Forest Serv., No. EDCV152098JGBDTBX, 2016 WL 5334474, at *8 (C.D. Cal. Sept. 20, 2016) (rejecting plaintiffs’ argument that Forest Service’s annual collection of fees under special use permit issued to bottled water company in 1978 was “final agency action.”). To satisfy both the APA’s threshold definition of “agency action” and the first prong of Bennett (decisional finality), plaintiffs must identify a “decision” that consummates the agency’s process when challenging such programs, which government defendants often characterize as merely the extension or implementation of an earlier (and sometimes time-barred) decision.
Finally, the case reflects tensions that arise when federal laws (like RCRA, the Clean Air Act, and the Clean Water Act) delegate or assign permitting authority to state regulators. Here, to support its argument that RCRA displaces NEPA, the government cited an EPA regulation stating that RCRA permits are not subject to NEPA. Rejecting that rationale, the appeals court observed that the regulation applied by its terms only to the EPA. Id. 1118 & n.11.
[1] 128 F.4th 1089 (9th Cir. 2025), cert. granted sub nom. Dep’t of Air Force v. Prutehi Guahan, No. 25-579, 2026 WL 642829 (U.S. Mar. 9, 2026).
[2] 42 U.S.C. § 6901 et seq.
[3]Wild Fish Conservancy v. Jewell, 730 F.3d 791, 801-02 (9th Cir. 2013).
