Department of Air Force v. Prutehi Guahan

Uh, is there any point in this process at which, uh, the Air Force has made a final, uh, engaged in, uh, a final action?

Uh, no, I don't think so.

An application itself is not agency action.

It's not final agency action, and it doesn't-

Well, when, when the permit is actually, uh, granted.

The, 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 s- 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, uh, the Air Force's decision can be challenged?

Uh-

Because even if they, the, the, uh, uh, Guam goes ahead and says, "Okay, you know, granted," y- you're saying you don't have to go forward with it.

You could always change your mind.

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

The, the Air Force's action is never final and therefore never reviewable.

The application is never going to become final agency action, and there is no cause of action under NEPA itself.

Congress didn't provide one, so any review would have to go through the APA, and I don't think the APA provides a cause of action for this application at any point in time.

If respondent wants to try to bring an ultra vires claim, it can try and do that if it meets the high bar for it, but that is the option that Congress has specified for this kind of claim.

Well-

Do they have a cause of action against, uh, under Guam law against, um, the Guam EPA for its failure to demand a NEPA?

Yes, they would have...

Well, let me be clear.

Guam EP- There is judicial review of a Guam EPA permit decision, and if they satisfy the requirements for that, and the reason I'm hedging is because-

Yes, that's why I wanted to know.

Yeah, I think, I think Guam EPA, uh, under their regulations and rules, they require, uh, they offer judicial review of the permit only if you actually took part in the permitting process beforehand, the public comment, et cetera.

And I believe, I'm not sure, Ms. Flynn can correct me if I'm wrong, I believe respondent attempted to submit a comment, but it was out of time.

It was like a month after the comment period closed.