The U.S. Supreme Court is weighing whether a federal agency has to run a NEPA environmental review before it even applies for a permit under another environmental law, a question that could decide how early opponents can sue over federally permitted work. The case is Department of the Air Force v. Prutehi Guåhan, No. 25-579, and the Associated General Contractors of America filed on the Air Force’s side.
The justices heard arguments Oct. 7. ENR’s account of the argument, published Oct. 15, laid out how the two sides framed it. No decision is expected for months.
The NEPA dispute behind the case
The facts aren’t about a building. For decades the Air Force has detonated munitions at Tarague Beach on Guam, next to Andersen Air Force Base. In May 2021 it applied to Guam EPA to renew its hazardous waste permit under the Resource Conservation and Recovery Act. Guam EPA still hasn’t ruled, and the Air Force has kept operating under its prior permit.
Prutehi Guåhan, a Guam advocacy group represented by Earthjustice, sued in January 2022. It argued the Air Force broke NEPA by applying for the renewal without an environmental impact statement. The district court in Guam dismissed the case as premature and held that RCRA’s own process stood in for NEPA review. A divided Ninth Circuit panel reversed in 2025, and the Air Force petitioned the high court, according to SCOTUSblog.
The court took two questions. Is a permit application final agency action that can be challenged right away under the Administrative Procedure Act? And does NEPA’s review process apply before an agency asks to renew a RCRA permit?
What the Air Force and contractors argued
Sopan Joshi, arguing for the government, said the application isn’t final because it’s still pending before Guam EPA. In his words, it’s a request to someone else to take action. Justice Ketanji Brown Jackson pressed the same point from the bench, noting nobody yet knows what the permit’s final terms will be.
Earthjustice’s Caroline Flynn countered that NEPA is an umbrella law meant to run alongside statutes like RCRA, and that the Air Force had already made its basic decision to keep detonating.
The U.S. Chamber of Commerce, AGC and other trade groups told the court the Ninth Circuit’s reading of finality would unsettle long-standing APA doctrine and invite early lawsuits. They also argued a NEPA review stacked on RCRA is unnecessary. Eleven states and several House members filed for the group.
Why NEPA timing matters for permitted projects
Construction firms rarely file permit applications in their own name on federal work, but they live with the schedule consequences. If applying for a permit counts as final action, a project could be sued before the permitting agency has written a single condition. That’s the scenario AGC wants the court to close off.
A ruling for the group would push NEPA analysis earlier in the life of federal facility permits. That adds front-end study, but it could also mean fewer fights later. It’s the same tension behind state efforts to take over federal review, such as Georgia’s bid to sign its own highway EISs, and behind supplemental reviews that reopen schedules on defense work like the Sentinel silos.
The detonation permit at issue covered operations through 2024. The Air Force has been running on the old one for close to five years, and the court’s answer on finality will apply well beyond Guam.