Department of Air Force v. Prutehi Guahan

Chief Justice, and may it please the Court, a permit application is not final agency action.

It's a request to someone else to take action.

Filing a permit application triggers a back-and-forth process whose outcome is, by definition, a moving target until a decision on the permit is issued.

Treating an application as final would just lead to a multiplicity of suits throughout a permitting process, which I think defeats the whole point of the finality requirement.

Now, Respondent says that the application reflects some internal Air Force decision to continue these activities for the next three years if Guam issues a permit.

But the if is precisely the kind of contingency that makes this not final.

Respondent also points out that the application enabled the old permit's expiration date to be told or extended.

But that is at most an incidental or indirect effect of the application, really, of Guam EPA's failure to rule on the application.

The direct and appreciable legal consequences of that extension flow from the terms of the old permit, which Respondent has not challenged.

Now, Respondent's claim also fails on the merits of RCRA is a comprehensive statute specifically targeting hazardous waste and specifically specifying which environmental review must occur at each step of a reticulated permit process.

Respondents attempt to take all of NEPA and just shove it into the application stage is not only duplicative of RCRA's requirements, which are the functional equivalent, but inconsistent with RCRA's specification of when each of those requirements should occur through the permitting process.

All of that said, I don't think you need to actually address the interaction of NEPA and RCRA in this case because NEPA by its terms does not apply to non-final agency actions.

And so if you agree with us, as I think you should, that the application is not final agency action, that would not only resolve the threshold issue in the case, it would also have the effect of resolving respondents' claim on the merits here.

I welcome the Court's questions.

Is there any point in this process at which the Air Force has engaged in a final action?

No, I don't think so.

An application itself is not agency action.

It's not final agency action.

Well,

when the permit is actually granted.

The permit, of course, would be a final action of Guam EPA.

Now, that's not an agency under the APA, but there is a separate judicial review scheme to challenge Guam EPA's issuance of a permit and respondent, if it meets the criteria for bringing such a claim, is welcome to bring such a claim if and when Guam EPA issues a final decision on the permit.

So you're saying that there's no point at which the Air Force's decision can be challenged? Because even if Guam goes ahead and says, okay, you know, grant it, You're saying you don't have to go forward with it.

You could always change your mind.

You could say, okay, now we're going to do something different.