[25-579] Department of Air Force v. Prutehi Guahan

0:00John G. Roberts, Jr. We will hear argument this morning in Case 25-579, Department of the Air Force versus Prutehi Guahan. Mr. Joshi.

0:08Sopan Joshi Mr. 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.

0:36Sopan Joshi 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 tolled 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.

1:15Sopan Joshi Now Respondent's claim also fails on the merits. 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. Respondent's 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.

1:47Sopan Joshi 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 Respondent's claim on the merits here.

2:10Sopan Joshi I welcome the Court's questions.

2:13Clarence Thomas Is there any point in this process at which the Air Force has made a final -- engaged in a final action?

2:22Sopan Joshi No, I don't think so. An application itself is not agency action, it's not final agency action, and it doesn't --

2:27Clarence Thomas Well, what -- when the permit is actually granted.

2:31Sopan Joshi 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 -- 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.

2:52John G. Roberts, Jr. So are you --

2:52Sonia Sotomayor Let's --

2:52John G. Roberts, Jr. - saying that there's no point at which the Air Force's decision can be challenged? Because even if the -- the -- the -- Guam goes ahead and says, okay, you know, granted, 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?

3:12John G. Roberts, Jr. Your -- the -- the Air Force's action is never final and, therefore, never reviewable?

3:17Sopan Joshi 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.

3:44Brett M. Kavanaugh Even at --

3:44Sonia Sotomayor Well, do they have a cause of action against -- under Guam law against the Guam EPA for its failure to demand a NEPA?

3:58Sopan Joshi Yes, they would have -- well, let me be clear. Guam E -- 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 --

4:09Sonia Sotomayor Yes, that's why I want to know in your --

4:10Sopan Joshi Yeah. I think -- I think Guam EPA, under their regulations and rules, they require -- 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. So I don't know if they're eligible to -- to, but --

4:36Sonia Sotomayor Assuming --

4:37Sopan Joshi - but assuming they were --

4:38Sonia Sotomayor - assuming -- assuming they were --

4:39Sopan Joshi Yeah. So --

4:39Sonia Sotomayor - eligible, there would be a cause of --

4:40Sopan Joshi - they could -- they could bring that claim against Guam EPA and say you --

4:43Sonia Sotomayor It does seem a little counterintuitive for us to say we have no jurisdiction but for you -- assuming that they're eligible, for you to have to redo this entire process if, at the end, a decision is made that NEPA was required.

5:02Sopan Joshi Yes. We --

5:02Sonia Sotomayor You're inviting -- you are inviting litigation to unravel perhaps years of work.

5:11Sopan Joshi That is what the final agency action rule is meant to implement. You save all the challenges and -- and channel them into one proceeding when everything's done. And, yes, that means sometimes interlocutory things are done and you proceed on that basis until you get to a final decision and you have to unwind it.

5:28Brett M. Kavanaugh But -- but --

5:28Sopan Joshi That's a formal feature --

5:29Brett M. Kavanaugh - I guess I'm not seeing how it would make any sense to say that it's not final but then that NEPA still applies, which is a possible outcome here, because then you go, as Justice Sotomayor correctly says, through the whole RCRA permitting process and then you get done and you go through the NEPA process. And that's just completely counterintuitive and extends everything and contrary to everything about trying to get these things done expeditiously.

6:06Brett M. Kavanaugh So what sense would it make to resolve only the first question without the second question or to resolve the first question to say not final and the second question to say, yeah, NEPA applies?

6:19Sopan Joshi Well, certainly, I don't think you could do that last thing you said because NEPA says it doesn't apply to a non-final action, so --

6:25Brett M. Kavanaugh And if we don't address it, some courts will probably say NEPA applies.

6:29Sopan Joshi Yeah. And we have no objection to your addressing it. I was just pointing out that, as a matter of prudence, there would -- there are --

6:35Brett M. Kavanaugh Well, that's what I'm challenging, the prudence point --

6:37Sopan Joshi Yeah.

6:37Brett M. Kavanaugh - because we're leaving great uncertainty then whether, as Justice Sotomayor raises the possibility of, of two processes back to back, which seems like the least sensible of all the options on the table here at least as I see it.

6:52Sopan Joshi That's fair. I don't think their claim would have merit if they ever were able to bring it. But you're -- you're absolutely right. That's precise -- that's one of the reasons why we don't think the NEPA process would apply to actions that are entirely covered by the RCRA permitting process. RCRA --

7:08Neil Gorsuch But that's a -- that -- that -- that's a risk you're willing to take. I mean, you're rolling the dice here and the government is well-advised and chooses its course of action with the input of scores of lawyers, some of whom are before us, and if you -- if you want to do the NEPA process, you can, and if you don't, you don't, and you -- you take your chances, right?

7:35Sopan Joshi I'm not sure I understood the question. (Laughter.) We are certainly -- an agency is -- can certainly --

7:42Brett M. Kavanaugh Well, you're rolling the dice -- I'll -- the -- can I jump in?

7:45Neil Gorsuch Please.

7:45Brett M. Kavanaugh You're roll -- you're rolling the dice --

7:47Neil Gorsuch If you can -- I thought it was a clear question --

7:48Brett M. Kavanaugh You're --

7:49Neil Gorsuch - but I'm sure it can be improved.

7:50Brett M. Kavanaugh No, it's not -- you're rolling the dice on the idea that you're going to end up with two processes required instead of one at the end of the day, I think.

7:59Sopan Joshi That -- that -- that's fair. And, obviously, we raised the question presented, we briefed it, both sides have briefed it, so it's -- it's ripe for your review. I think it's just this Court tends to say if it's not necessary to decide something, it's necessary to --

8:13Sonia Sotomayor Well, how can --

8:14Sopan Joshi - decide it, and --

8:14Sonia Sotomayor - we decide it if we have no jurisdiction?

8:16Sopan Joshi Oh.

8:16Sonia Sotomayor If there's no final agency action, how are we deciding a question over which we have no jurisdiction?

8:23Sopan Joshi Well -- well, this Court has jurisdiction. And I want to be very careful here: Whether final agency action is a jurisdictional requirement is a subject of a circuit conflict. The Ninth Circuit says it is. The D.C. Circuit says it isn't. I think the Fifth says it is. So I don't want to weigh in on that. You shouldn't either.

8:38Sonia Sotomayor So, if it's part of a circuit conflict, we have to address that before we reach the second question.

8:44Sopan Joshi No.

8:44Amy Coney Barrett Only if we decided --

8:44Sopan Joshi So I want --

8:45Amy Coney Barrett - only if we decided it wasn't final agency action.

8:48Sonia Sotomayor Right, right.

8:49Amy Coney Barrett Yeah.

8:49Sonia Sotomayor Exactly.

8:49Sopan Joshi Right. If you do decide that it's final agency action, that is not only a threshold issue that would make it potentially unnecessary to resolve the second question presented, but, in fact, this case has an oddity where that sort of ruling would actually resolve QP 2 on the merits because NEPA doesn't apply to non-final actions.

9:07Sonia Sotomayor Can -- can I --

9:07Sopan Joshi But you --

9:08Sonia Sotomayor - ask one fundamental question in this case? How is -- how are RCRA and NEPA irreconcilably conflicting? I mean, they may cover some of the same ground, but NEPA starts before a decision is made. RCRA occurs during the decision. So how are they irreconcilably conflicting?

9:33Sopan Joshi So we are not relying on the "irreconcilable or clearly and fundamentally conflict" line from Flint Ridge or -- or the new NEPA amendment. We --

9:41Sonia Sotomayor So read me the statute. What does the statute say now?

9:45Sopan Joshi The statute now says that a agency is not required to -- to prepare a document under NEPA if ... the agency action is excluded pursuant to ... another provision of law. And we view that as saying -- it doesn't say expressly excluded; it just says excluded. And the general-specific canon and -- or if you like the term "functional equivalence," which is what the lower courts have used, that is a well-established legal basis to say that a highly reticulated, more specific scheme excludes application of the more general scheme.

10:19Sopan Joshi And we do think it -- it --

10:19Sonia Sotomayor I'm sorry, counsel. This -- these words, "irreconcilable," "functional equivalent," where is it in any of our cases?

10:27Sopan Joshi No, that --

10:27Sonia Sotomayor I -- I --

10:27Sopan Joshi - that's why I said the lower courts use the term "functional equivalence."

10:30Sonia Sotomayor I know, but I'm not even sure where they got it. We know that Congress explicitly does away with NEPA in a bunch of different ways, and they know how to do it because they do it frequently. But they haven't done it in this context. So tell me why we're looking for functional equivalency when our conflict law basically says it has to be irreconcilably --

10:59Sopan Joshi So --

11:00Sonia Sotomayor - irreconcilable.

11:01Sopan Joshi - again, the -- the irreconcilable or clearly and fundamentally conflict is not the only time in which a more specific statute can displace NEPA. So there are multiple other ways in which that's true. And --

11:14Neil Gorsuch We -- we usually say, though --

11:15Sopan Joshi - I -- I want to be clear --

11:15Neil Gorsuch - don't we usually say that if you can do both, if you can comply with both of Congress's commands, you should do so?

11:24Sopan Joshi No, I don't think it's that absolute. I think where a more specific statute is just inconsistent with the general one --

11:32Neil Gorsuch Yeah, I didn't say "inconsistent," counsel. I said, if you can do both, there's no conflict. And we try to reconcile and obey all of Congress's commands normally. And I -- I thought the new NEPA, the new statute, says you don't have to do it when preparing such a document would clearly and fundamentally conflict with the requirements of another provision, right?

11:57Sopan Joshi We're relying on the paragraph before then.

12:00Neil Gorsuch Okay. All right. Got you.

12:01Sopan Joshi The -- the one --

12:01Neil Gorsuch Okay. All right. Fine. Either way, there's some sense that, you know, you don't do it when there's a conflict. And -- and that -- and that was a response to me just a moment ago, conflict. And I'm saying, let's say there's no conflict. Let's say -- let's say you can do both. There's some duplication maybe, but there's no conflict.

12:18Sopan Joshi So I would view this as being a conflict, and maybe we just differ on how we're defining conflict. But I think, when RCRA says: Here is a -- a -- a very reticulated set of procedures for a permit, and there are varying levels of environmental analysis that take place at each step, so the application has certain requirements in it that -- by statute and by the regulations, and in order to fill out an application, the Air Force has to do some degree of environmental analysis at that stage.

12:45Sopan Joshi Then there's a review by the permitting agency, here, Guam EPA. Then there's public notice and comment. Then there's a public hearing. Then there's written responses to the comments. So the environmental analysis under RCRA, Congress has said and the regulations say, is broken up into each discrete step of the process.

13:03Sopan Joshi What Respondent would have us do is say: You have to do basically all of that work before you even file the application. I view that as an inconsistency. If Statute 1 says here is the order in which you do things and Statute 2 says, actually, do them all right at once before you even start that --

13:20Sonia Sotomayor I'm sorry, all it -- all it's saying to you is, do them; when you get into RCRA, you've got it done, so just give them the answers. What's the problem with that? That's not an irreconcilable conflict.

13:30Sopan Joshi It is --

13:30Sonia Sotomayor I'm sorry, you didn't use -- I'm looking at the provision of the law now, and it says the preparation of such document "would clearly and fundamentally conflict with the requirements of another provision of law." That's the current law, "would clearly and fundamentally conflict."

13:49Sopan Joshi Yes, that's paragraph 3. But I -- I think I would refer Your Honor to paragraph 2, "The proposed agency action is excluded pursuant to ... another provision of law."

13:59Sonia Sotomayor The problem is --

14:00Sopan Joshi That is picking up --

14:01Sonia Sotomayor - the -- you're -- you're tying 2 away from 3, but 3 tells you what the other provision of law has to be.

14:07Sopan Joshi Oh, I don't -- I don't think that's correct. I think 1, 2, 3, and 4, Congress was clearly -- and I think the Seven County footnote makes clear that Congress was just trying to incorporate and codify what NEPA was already understood to mean in the lower courts. I think 1 and 2 are picking up a regulatory practice that had developed, including under the former CEQ regulation.

14:29Neil Gorsuch Well, can you explain --

14:29Elena Kagan Mr. Joshi --

14:30Sopan Joshi Three and 4 are --

14:30Neil Gorsuch Let me say I agree with that. I'll just spot you that for the moment. And I -- I'm sorry, I don't -- I don't want to occupy too much time here. But, under 2, which is what you're relying on, it's -- it has to be excluded by another provision of law.

14:44Sopan Joshi It doesn't say "expressly excluded," and that's our argument.

14:47Neil Gorsuch Oh, okay. All right. Okay. So it's implicitly excluded is your --

14:51Sopan Joshi Correct. Correct.

14:52Neil Gorsuch Okay. And how is it implicitly excluded?

14:55Sopan Joshi Under the specific-general canon. That is a well-known doctrine of law in which a more specific statute --

15:01Neil Gorsuch Okay. But, if I disagree with you about that, the general and specific applies when there's a conflict?

15:07Sopan Joshi Then we -- then we lose on the --

15:08Neil Gorsuch Then you lose. Okay. All right. Thank you.

15:09Elena Kagan So sorry to toss you around, Mr. Joshi, but if we could return to the final agency action question, which, as you say, if you win on that, the whole thing is over. Does that mean that any agency action that's subject to regulatory approvals is non-final? I mean, you can imagine, for example, a project, a big construction project or a massive cleanup project or, you know, you name it, that requires not just one but multiple regulatory approvals: state, federal, territorial in this case.

15:48Elena Kagan Is that just not, you know, because it's contingent on regulatory approvals, there's no way to challenge what appears to be the agency decision to go ahead with this, let's call it, massive construction project?

16:03Sopan Joshi That -- that's -- our argument doesn't go that far here. I think our argument --

16:07Elena Kagan Well, why doesn't it? Like, how would you draw the line?

16:10Sopan Joshi Typically, the way these things progress, if there's a large project that requires multiple permits and other things beside, is that the -- the permitting process addresses only the stuff covered by that particular permitting scheme. The overall project itself might well be challengeable as a final agency action in that circumstance.

16:30Sopan Joshi There may even be -- and I don't -- I don't know, I haven't canvassed --

16:33Elena Kagan Well, that seems a little bit more -- a little bit fortuitous. I mean, if I understand what you just said -- I don't want to put words in your mouth -- but it's like, then, if it's multiple regulatory approvals, you're separating out the decision from any given approval. But, here, just because it's a single regulatory approval, you're saying there's no such thing as the decision putting aside the contingency of the approval. And why should that be, really, as a conceptual matter?

17:01Sopan Joshi As a conceptual matter, I think it goes back to -- we pointed this out in our brief -- when an agency -- I mean, most of these permits, the applicants are private entities, right? When an agency applies for a permit, permission from someone else, the agency isn't really acting as a sovereign regulator. And the APA is all about being able to review regulatory actions by agencies.

17:24Sopan Joshi The agency is acting more in a proprietary capacity. And so that piece of the agency's action, it shouldn't be surprising that it wouldn't qualify as final agency action under the APA. But a larger project, which the agency is undertaking in its regulatory capacity, you can see how you'd reach the opposite conclusion there. And --

17:41Ketanji Brown Jackson So this is -- so it's -- it's the nature of this particular permitting scheme that is leading us to the result that you want? I mean, this is just piggybacking on --

17:50Sopan Joshi I -- I think any -- any permit application under this kind of scheme or a similar scheme is not going to be final agency action. I mean, you could look at the definition of "agency action" in the APA.

18:02Elena Kagan But, when you say that, is it that you're saying this is a pleading problem, that they challenged the permit application as opposed to the decision? Or are you saying that it's a more fundamental problem that even if they had pleaded it by challenging the decision to -- to -- to -- to continue operations, that that would be no good because it's subject to some kind of contingency?

18:27Sopan Joshi Yes. The -- the --

18:28Elena Kagan Which one? That was --

18:29Sopan Joshi - the -- the --

18:29Elena Kagan - that was not a "yes." (Laughter.) That was a -- the first or the second?

18:33Sopan Joshi The second. I was saying, yes, I understood the question. It's -- it's more the second and also because the APA doesn't really authorize review of internal decisions. It's final agency action. "Agency action" is a defined term. This Court has case law on finality.

18:46Elena Kagan Well, I guess, in -- in my hypotheticals, it does seem to be final agency action. In other words, the agency has done everything it can do. It's deliberated to the full extent that it wants to. It knows what it wants to do. It's ready to do it. Now it turns out that in life, the agency is just not, in many circumstances, an independent actor and needs certain things to happen before the agency can actually follow through on its commitment. But it is a commitment.

19:18Elena Kagan And I guess the question is: If you're willing to spot me that on the multiple approvals kind of project, why isn't this the same?

19:27Sopan Joshi I think because the -- the only thing happening here is requesting permission to do something that is covered by a different regulatory agency, and it is that regulatory agency that takes the regulatory action that, if it were a federal agency, would be subject to judicial review under the APA's final agency action.

19:48Sopan Joshi When an agency acts in a capacity no different from that of a private individual, that's just not going to be final agency action under the APA. But if --

19:57Amy Coney Barrett Would it be possible for the Guam EPA to be designated as a lead agency under NEPA? And then, if that happened, what would the consequence be? I just don't know how that would play out --

20:06Sopan Joshi Yeah. I --

20:07Amy Coney Barrett - because it seems like, I mean, our intuition here is that, really, the final action would be the approval or disapproval of the application, which is on the Guam EPA. But could the Guam EPA actually have to comply with NEPA? Because there is a provision in NEPA that says you can have a state agency designated --

20:24Sopan Joshi Correct.

20:25Amy Coney Barrett - as a lead agency.

20:26Sopan Joshi As a -- I suppose it's theoretically possible. As it turns out, EPA, since very shortly after RCRA was enacted in the -- in the '70s, has a regulation that says, when EPA is the permitting authority under RCRA, which is still true, I think, in Iowa, might be the only state where federal EPA still does it, EPA will not prepare a NEPA analysis if it's already doing the RCRA permitting process because it's basically duplicative.

20:52Amy Coney Barrett But EPA could otherwise be sued under the APA?

20:56Sopan Joshi EPA could be sued under the APA review provisions --

20:58Amy Coney Barrett Yeah.

20:58Sopan Joshi - for their final actions, but, yes, and EPA --

21:00Amy Coney Barrett Yeah. And the problem here is Guam can't -- that Guam isn't subject to the APA?

21:05Sopan Joshi Correct, but Guam has its own judicial review --

21:07Amy Coney Barrett Right.

21:07Sopan Joshi - proceedings. And EPA does not authorize any state or territory to administer RCRA without that state or territory having judicial review provisions as part of the RCRA process.

21:18Amy Coney Barrett One other question. Are you -- is the government now conceding, Mr. Joshi, that the application is the final agency action that the Respondents are challenging here? Because Judge VanDyke's dissent raised the possibility that it was, said, like, oh, that's been a moving target, and maybe the final agency action they're really complaining about is the decision not to submit or do an EA or submit an EIS.

21:44Sopan Joshi So I will leave to Ms. Flynn to describe what her client's actual challenge is. It has been a moving target throughout this litigation. If it's the application, which is how I read the briefing in this Court to be --

21:55Amy Coney Barrett Right.

21:55Sopan Joshi - that's not final agency action. If it's what Judge VanDyke called "application plus," which is the internal decision to submit the application, we think that's sort of ephemeral, and Biden against Texas says you can't do that either. If it's just the decision to conduct these activities writ large, then I think VanDyke -- Judge VanDyke has a point, which is that decision was made in the '80s, when the Air Force said, we need to dispose of these waste munitions on the island and we're going to do it as long as Air -- Andersen Air Force Base is in operation.

22:26Elena Kagan Well, what if that's not true, Mr. Joshi?

22:28Sopan Joshi But --

22:28Elena Kagan What if, in fact, the -- the Air Force treats this as a kind of -- you know, it made the initial decision, but then it's going to keep making decisions, whether it's every three years or every 10 years or whatever it is. I mean, no decision is just thought, or very few, to -- to be eternal. So why wouldn't it be, well, there's been a decision to re-up these operations, sort of putting aside the formal application process?

22:57Sopan Joshi I -- I still think the decision to re-up for another three years is a kind of internal decision that the APA simply doesn't cover. What the APA covers are final agency action. "Agency action" is a defined term. And if you look at it, it does use the word "includes," but the things it lists are all things that an agency does as a regulator that directly dictate rights and responsibilities. Rule: This is what the law or policy is. Order: You must do this. License: You have permission to do this. Sanction: I'm punishing you. Relief: I'm rewarding you.

23:31Sopan Joshi These are all things that agencies do as regulators. And seeking a permit and permission to do something is not an agency acting in that capacity covered by the APA. The permitting agency is acting in that capacity, and there may be judicial review for that kind of action if it's a federal agency, in this case, under the Guam scheme. But that's how we view the world.

23:53Ketanji Brown Jackson How much of your --

23:54Brett M. Kavanaugh So --

23:54Ketanji Brown Jackson Go ahead.

23:55Brett M. Kavanaugh Go ahead.

23:55Ketanji Brown Jackson I was just going to say how much of your argument depends on the fact that, in this particular circumstance, Guam EPA retains or has the capacity to change all of the terms and conditions?

24:09Sopan Joshi That is certainly extremely helpful to us in that there is a back-and-forth contemplated by this process. I'll point out that in Franklin and Dalton, there was no contemplation of a back-and-forth. The President was just going to decide whether to accept the Secretary's report or accept the -- the base closure recommendation.

24:25Ketanji Brown Jackson But, if he didn't --

24:26Sopan Joshi And that did not change --

24:27Ketanji Brown Jackson - but, if he didn't, I guess that would change the initial ask to some extent because then they would say we don't want to do it anymore. In other words, I -- Justice Kagan points out a very interesting line-drawing problem depending upon how you set this up. And I suppose one response that distinguishes the two categories that she laid out is that in a world like this one, the one that we have, the Air Force is really making a proposal insofar as everything it says it would like to do in its permit application is subject to the permitting agency saying, no, you can't do X, Y, and Z. So there isn't this sort of big project out there independent of anything the Guam EPA would say about it.

25:14Sopan Joshi I don't disagree with that, but -- and, as I say, I think it's helpful to us that the regulatory scheme contemplates this back-and-forth and amendment. But I don't think it's actually necessary, but it's certainly helpful to us.

25:28John G. Roberts, Jr. Thank you, counsel. Justice Thomas, anything further? Justice Alito? Justice Sotomayor?

25:34Sonia Sotomayor I'm reading the question. I think the question presented answers what position Respondent has taken. It depends on whether the federal government's submission to a state or territorial regulator of an application to renew a previously issued RCRA permit is final agency action. So they've sort of disavowed Judge VanDyke's view that what they were challenging was the decision qua decision, not the submission, correct?

26:07Sopan Joshi Sure. All the better for us.

26:09Sonia Sotomayor All the better for you. So that question is really an interesting one because you're right. You yourself concede that there are circumstances in which a proprietor could have made decisions even though they're awaiting certain other permits. I fear that you're seemingly suggesting that that's not the case.

26:34Sopan Joshi In this case --

26:36Sonia Sotomayor In this case, you're happy to live with just the question presented?

26:38Sopan Joshi This case is a RCRA permit renewal that involves only --

26:41Sonia Sotomayor The submission. Okay.

26:42Sopan Joshi Yeah.

26:43Sonia Sotomayor That's the only issue before us in this?

26:45Sopan Joshi Correct.

26:47John G. Roberts, Jr. Justice Gorsuch?

26:49Neil Gorsuch It's not like the Navy could go ahead and continue dumping things without a permit, right?

26:57Sopan Joshi Correct.

26:58Neil Gorsuch Okay. And then, as to the extension, so -- so there's no fact in the world they could continue to do and operate unless Guam's EPA says yes? Yeah?

27:11Sopan Joshi Correct.

27:11Neil Gorsuch All right. On -- on the extension, could that be challenged as agency action by EPA, by Guam EPA, and allowing you to continue to do it while the application is pending?

27:24Sopan Joshi I -- I've thought about this. I -- I suppose the only way you could do it is if you thought -- because the only way the extension kicks in is if Guam EPA doesn't reach a decision on the permit by the expiration date.

27:36Neil Gorsuch But --

27:36Sopan Joshi And --

27:36Neil Gorsuch - but it operates by rule, doesn't it, under --

27:38Sopan Joshi It operates by rule, but it's -- it's only because Guam EPA didn't reach a decision by the old permit's expiration that --

27:45Neil Gorsuch Is -- is Guam --

27:45Sopan Joshi - it extends. And so I -- I suppose you could, if Guam EPA allows it, bring a suit for agency action unlawfully withheld, but it seems like an awfully high bar when the reason Guam EPA didn't rule initially was they sent us a letter saying we have received, underlined, significant public comments that we want to take time to respond to. So Guam EPA is doing its job.

28:06Sopan Joshi And then they --

28:07Neil Gorsuch I get the action withheld, but I'm wondering about action itself. Is -- is -- is it -- is it effectively an action because they have a rule that -- I mean, so what if they didn't do it in an individual adjudication, they did it by rule?

28:21Sopan Joshi I -- I -- I don't -- I don't -- I don't think so. And -- and if you go down that route, it's really going to blow up administrative law because this extension is in the APA itself. It's in 558. And so now every permitting regime known to man, every single time there's a pending application, just an application to renew, you're going to have final agency action, and plaintiffs are going to rush to court. That can't possibly be what Congress intended.

28:46John G. Roberts, Jr. Justice Kavanaugh?

28:47Brett M. Kavanaugh Just so I clarify, following up on the Chief Justice's initial questions, if it's not final, as you say, and if the permitting agency is not a federal agency, your position is that you can never bring a challenge saying that NEPA was not complied with, correct?

29:09Sopan Joshi Not quite. As I say, as a practical matter, EPA requires every non-federal permitting agency that's operating the federal RCRA scheme, which includes 49 states and Guam and some other territories, to have judicial review of the RCRA permit. And so Respondent couldn't bring its current claim about the application, but -- but a different plaintiff, if a different plaintiff thought that a RCRA permit should not issue without an agency applicant's having completed a full-blown NEPA analysis as a precondition for getting that permit, they could bring that claim and say, Guam EPA --

29:46Brett M. Kavanaugh Where? Where do they bring that claim?

29:48Sopan Joshi They could either go to -- sue Guam EPA under the -- the judicial review provisions of -- of Guam RCRA and say, Guam EPA --

29:55Brett M. Kavanaugh Which are similar to the state ones or --

29:57Sopan Joshi Yeah. Yeah.

29:59Brett M. Kavanaugh Mm-hmm.

29:59Sopan Joshi And they'll say, Guam EPA, you shouldn't have issued the permit because this applicant was required to do NEPA, and it didn't do NEPA, and, therefore, you need to --

30:07Brett M. Kavanaugh Is that a matter of federal law or Guam law at that point or --

30:11Sopan Joshi Well, Guam would --

30:12Brett M. Kavanaugh - or state law?

30:12Sopan Joshi Yeah, Guam would provide the cause of action. Whether NEPA is required would be a matter of RCRA federal law. So that would be one way to bring that kind of --

30:21Brett M. Kavanaugh So it still would be the open question?

30:24Sopan Joshi It would be different from Respondent's question. Respondent's question is: Does NEPA need to be done as a precondition just for submitting the application? I'm in -- and -- and that would lose because of the non-finality, but --

30:35Brett M. Kavanaugh I'm talking about, if we don't answer Question 2, you're saying the NEPA issue will still be alive. It'll come up when you're challenging the state, here, Guam's, issuance of the permit and raising the argument that the permit should not have issued because NEPA was not complied with, correct?

30:52Sopan Joshi That would be how it could be raised. I don't think that claim would have merit, but that's a way that you could get a hearing for that claim. The other way, as I mentioned at the outset, would be, because the APA doesn't provide review because there's no final agency action here, I suppose a plaintiff in Respondent's shoes could attempt an ultra vires claim, a Hail Mary pass --

31:10Brett M. Kavanaugh Yeah.

31:10Sopan Joshi - against the Air Force. But, look, if they think it's that unlawful, what we're doing, then they should take their chances there.

31:17Brett M. Kavanaugh And -- and you aren't worried about that litigation down the road, that litigation uncertainty about the -- the permitting?

31:24Sopan Joshi We -- we really like the Hail Mary language in NRSC, and we just don't think that that sort of suit would succeed.

31:29Brett M. Kavanaugh No, I'm talking about in a state -- the review of the state permitting process.

31:34Sopan Joshi Look, there's a reason we raised the second question presented.

31:36Brett M. Kavanaugh Okay.

31:37Sopan Joshi And -- and we -- and we think NEPA does not apply to things covered solely by a RCRA permit, but we acknowledge that if you don't reach that issue here today, that that would be an available --

31:47Brett M. Kavanaugh That's the way it'll transpire. Thank you.

31:49Sopan Joshi Yeah.

31:50John G. Roberts, Jr. Justice Barrett?

31:51Amy Coney Barrett Mr. Joshi, I want to clarify one of your answers to Justice Kavanaugh. So you said EPA requires each of the states and territories to have their own RCRA review process. Is that by EPA rule, or is that by statute?

32:04Sopan Joshi It is by rule. EPA's rules for what a state or territory need to show to demonstrate that their RCRA scheme is at least the federal equivalent, at least as protective as the federal scheme, one of it is that it has judicial review provisions available to -- to challenge. And if you think about it, as we note in our brief, we, the federal government and our agencies, hold thousands and thousands of these permits. So we don't really want to be in a scheme where our permit is denied by a state regulator and we have no judicial review either. So it's in -- it's in our interest as well to make sure that there is full judicial review available in each of these states and territories.

32:44Amy Coney Barrett And does each state and territory get to design its own judicial review scheme, or is that dictated by EPA or otherwise?

32:52Sopan Joshi I believe each state and -- and territory will design it themselves. I think, in most cases, it's got some preconditions for when you can file, but, otherwise, it just proceeds through the -- the normal court system in those states, yeah.

33:06Amy Coney Barrett So it's difficult for you to imagine or identify a situation in which a decision, say, not to do -- not to comply with NEPA, not to file an EIS, would not be subject to challenge -- I understand you think the challenge would lose -- but would not be subject to challenge in the state judicial review process?

33:26Sopan Joshi They could bring that claim in the state judicial review process. As I say, I think it's meritless, but they could bring it.

33:31Amy Coney Barrett They could.

33:32John G. Roberts, Jr. Justice Jackson?

33:34Ketanji Brown Jackson Yeah. On displacement, I just want to be clear. Are you relying on the functional equivalence doctrine and not a textual basis, or where -- where are we getting this?

33:44Sopan Joshi We are -- we are relying on the standard principle of statutory interpretation that the specific governs the general. Now my understanding is that lower courts --

33:52Ketanji Brown Jackson But doesn't that -- doesn't -- doesn't that necessarily assume those two are actually covering the same thing?

33:58Sopan Joshi In a certain sense, yes.

33:58Ketanji Brown Jackson You're just assuming that. There's nothing about the text that tells us that RCRA -- RCRA was designed to be a more specific NEPA, or which one is the more specific?

34:09Sopan Joshi We're -- we're looking at the text of NEPA and the text of RCRA and we are saying both of these cover similar areas. Indeed, by hypothesis, Respondent's whole claim is that NEPA covers this area that is also covered by RCRA. But RCRA --

34:23Ketanji Brown Jackson And so you only have to do the more specific one in your view?

34:25Sopan Joshi You do the more specific one under a standard application of that principle. Now my understanding is that the lower courts that have done this analysis for the last 50 years have put the label of functional equivalence on it. We don't have any problem --

34:37Ketanji Brown Jackson Because it needs something, right? I mean, it needs something. I mean, we have two different statutes of Congress.

34:42Sopan Joshi Sure. Sure. We have --

34:42Ketanji Brown Jackson And as Justice Gorsuch points out, we ordinarily say that if you can do both, you need to do both.

34:48Sopan Joshi I -- I don't think that --

34:49Ketanji Brown Jackson So, if we're suddenly coming up with a principle that says, no, you can -- you -- you need only do the more specific one, there has to be some basis for -- for that determination, right?

35:00Sopan Joshi I think that's just standard law. I mean, Home Builders, Association of Home Builders against Defenders of Wildlife, this Court encountered two environ --

35:09Ketanji Brown Jackson How do you explain -- how do you explain then the kind of other thrust of our case law that suggests that, as long as those two different requirements of Congress don't conflict, you have to do both of them? But you don't get to pick and choose, I'm only going to do the more specific one because it is more specific.

35:29Sopan Joshi And I think -- I think Home Builders illustrates what the word "conflict" or "conflict of these two statutes" actually means. It doesn't mean it's a metaphysical impossibility to comply with both. It can be practical difficulties, or it can also be just inconsistency in the scheme. Here, the inconsistency is in the timing of the scheme. Both review schemes, if you just look at the text of the statutes, seem to require largely identical stuff, like environmental considerations, alternatives, public notice and comment, public hearing, response to comments.

36:01Sopan Joshi But RCRA says you do pieces of it at different stages in the process, whereas NEPA says you have to do it all before you even embark on it. And that's an agency --

36:11Ketanji Brown Jackson And as Justice Sotomayor says, if you have to do it all before you embark on it, then you've already done it. And why can't you just use that in your subsequent RCRA --

36:19Sopan Joshi Because it's an entirely different set of comments and procedures. Under the statute and the regulations --

36:24Ketanji Brown Jackson So it's not the same. So it's -- you said they were the same. It's duplicative.

36:27Sopan Joshi It's -- it's --

36:27Ketanji Brown Jackson It's either not the same or it is the same.

36:29Sopan Joshi No, no, no. I'm saying, substantively, they cover the same ground. They are equivalent. But, as a procedural matter, the fact that you went through an entire NEPA process -- and, by the way, it's not just the NEPA process, it's then three years of litigation after it before you can even start to get your permit.

36:44Ketanji Brown Jackson Do they have -- do they have different purposes? I mean, my understanding of the reason why you're doing an environmental review at the outset is because you are informing the agency and others as to whether or not this proposal really has certain environmental impacts. And that seems to me to be quite different than the purposes of the various steps of RCRA.

37:06Ketanji Brown Jackson So does that matter in our consideration as to whether or not there's substantial overlap or conflict?

37:11Sopan Joshi I don't -- I don't view them as different. The point of RCRA is to, you know, as Respondent says, to take a hard look at the environment. And I think this Court has said multiple times RCRA incorporates a rule of reason. That is, you should do the -- the environmental analysis that is appropriate to the circumstances.

37:29Sopan Joshi Well, RCRA, in my view, reflects Congress's hard look at hazardous waste, and --

37:34Ketanji Brown Jackson But Congress, just to be clear, didn't say this is displacing NEPA, right?

37:39Sopan Joshi No. But we think, under standard principles of statutory interpretation --

37:43Ketanji Brown Jackson It does? MR JOSHI: Yes. All right. Thank you.

37:45John G. Roberts, Jr. Thank you, counsel. Ms. Flynn.

37:47Caroline A. Flynn Mr. Chief Justice, and may it please the Court: The Air Force was required to comply with NEPA before choosing to continue open detonation on Tarague Beach. And we can obtain judicial review of that violation now. On the question whether NEPA applies, the government's position is simply atextual. Congress has told us that NEPA is displaced only when it is excluded pursuant to another provision of law or there is a clear and fundamental conflict between NEPA and another law's requirements.

38:16Caroline A. Flynn That aligns with this Court's precedent, the strong presumption against implied repeals, and Congress's longstanding practice of drafting express exclusions to NEPA when it wants them. The government's response is that RCRA is specifically about hazardous waste. But, because the laws can be harmonized, that observation can't carry the day. Indeed, NEPA is meant to be harmonized with other environmental laws in this way. It is what agencies call an umbrella law. It is meant to consolidate and streamline all required environmental analysis at an early juncture to ensure a better decision and better planning.

38:51Caroline A. Flynn So, if the Air Force was wrong to ignore NEPA here, the only question should be when Prutehi Guahan can get judicial review of that violation. The Air Force's decision to continue OD at this location and submitting the renewal application was not tentative, and its application implementing the decision had, among other things, the concrete effect of authorizing open detonation operations past the date when they otherwise would have ended.

39:15Caroline A. Flynn The government is instead pushing a rule where the fact that the Air Force's decision required external sign-off means that it can't be final as a matter of law, perhaps, apparently, not even after that external sign-off occurs. That does not align with this Court's pragmatic approach to finality, and it is especially senseless when it comes to our claim of a procedural violation here.

39:35Caroline A. Flynn Indeed, this Court has already said in Ohio Forestry Association versus Sierra Club that a litigant with standing can "complain of a NEPA failure at the time it takes place for the claim can never get riper." There is nothing to be gained here by delaying our challenge to the Air Force's own decision-making about its own operations until a non-federal agency has made a different determination under a different law.

39:57Caroline A. Flynn I welcome the Court's questions.

40:00Clarence Thomas Ms. Flynn, normally, in these administrative cases, we have a regulatory body making a decision, and our determination has to be whether or not that is a final action for APA purposes. In this case, we have a regulated body applying to a regulatory body that you -- your argument is that the application process makes it a final decision.

40:29Clarence Thomas Do you have another example where the regulated body's decision to apply to a regulatory body is a final decision for APA purposes or a final action for APA purposes?

40:43Caroline A. Flynn Well, I can think of one fact pattern in this Court's cases involving another NEPA case, and that was the Winter versus Natural Resources Defense Council case. And, there, the Navy was continuing a series of training exercises for another two years that they had been doing previously, and they did the NEPA analysis before embarking on another two years of exercises.

41:07Caroline A. Flynn The Court -- you know, finality -- the Court did not decide finality in this case, but nobody seemed to think that there was any issue with --

41:13Clarence Thomas Was that an --

41:13Caroline A. Flynn - being able to review the NEPA analysis in that case.

41:15Clarence Thomas Was that an application for a permit in order to do the training? I'm -- my interest is that this is an odd case because we are not talking about a regulatory body making a decision to do something itself without permission. We are talking about a regulated body asking permission to do something.

41:41Caroline A. Flynn I understand, and I understand that that creates a contingency, but I guess what I would say is that the contingency -- the fact of the contingency shouldn't be determinative. So say that RCRA required the Air Force to put all of the information it would put in an application and just publish that document. I don't think we would be having a debate about final agency action there, even though it's action about the -- the Air Force's own operations.

42:06Caroline A. Flynn Here, yes, that has to go and get external sign-off from somebody else. But this Court has found final agency action where there is a contingency. For instance --

42:14Ketanji Brown Jackson But isn't it because your publication hypothetical doesn't contemplate the back-and-forth that I talked about with Mr. Joshi? I mean, it's -- it's -- if we had a world in which the requirement was just the Air Force has to publish everything that it was putting in a permit application -- that was your hypothetical -- there's nothing to come of that in terms of potential changes, in terms of it -- you know, conditions being placed on it.

42:43Ketanji Brown Jackson That's why I was focusing on the fact that, in this particular scheme, we have the Air Force making a proposal that is subject to totally being rewritten and redone by the regulator agency. And, in that case, isn't there a finality problem?

43:01Caroline A. Flynn I don't think so because this Court has been clear that the possibility of revision of the agency's decision, that it might change its mind, is not itself enough to say that a decision where the agency reached the culmination of its decision-making process is non-final. Here, yes, that possibility of revision might come because it's provoked by an outside entity, but I think that was also true in Biden versus Texas, where this Court found final agency action when there was -- DHS Secretary issued a memo saying: I am terminating immigration --

43:32Ketanji Brown Jackson But that's -- but the decision was within the agency's control. I mean, any agency can change its decision, so that would render, you know -- I don't know that -- that that's really the critical point. The point is we don't even know in this situation what the final terms are going to be because it's subject to the other regulator responding. And they're taking a long time, suggesting that they're actually looking at this and are possibly going to come back with significant revisions.

43:58Ketanji Brown Jackson And so then we don't really have the terms. What -- what would the Air Force even be evaluating at this point when it hasn't heard from Guam EPA about what this thing is going to look like?

44:10Caroline A. Flynn Well -- so I think it does matter here, and I think it should matter under this Court's pragmatic approach to finality, the kind of legal claim we're bringing here. So our NEPA claim is attached to the -- the process of decision-making the Air Force used before it decided in NEPA's terms to propose this major federal action and should not be --

44:30Ketanji Brown Jackson That's not what your QP says. You say submission, right? We're -- we're in --

44:33Caroline A. Flynn Right, but in --

44:33Ketanji Brown Jackson - the action is the submission.

44:35Caroline A. Flynn So -- but, to be clear, the NEPA violation, it's clear that it happened before resources were committed in this application. And because -- excuse me -- so, because the NEPA claim there is nothing -- or, sorry, I should say, because any revision that happens by Guam EPA with respect to, you know, particular procedures or something like that, that will not affect whether --

45:02Ketanji Brown Jackson The prior decision.

45:03Caroline A. Flynn - the fundamental decision to carry out these --

45:05Ketanji Brown Jackson Yeah.

45:05Caroline A. Flynn - open detonations at Tarague Beach. And we know that the Air Force is settled on that decision because it has, in fact, been acting on them past -- you know, by continuing these detonation operations past September 2021, when they otherwise would have ceased.

45:19Elena Kagan Can you bring your challenge and your demand for a NEPA analysis after the Guam EPA acts?

45:28Caroline A. Flynn I am not aware of a basis for us to bring this challenge on review of whatever Guam EPA does. I understand that's what my friend said here today, but Guam EPA has no NEPA obligation. It has no obligation to enforce the Air Force's NEPA obligations. So whatever -- if, you know, we have a basis -- if this permit is granted and we have a basis to challenge it before Guam EPA, that is a separate question.

45:51Elena Kagan Do you think that this is a question that's just specific to Guam? If we -- we were in a state rather than a territory, could the challenge be brought and the demand for a NEPA analysis made after the EPA acted?

46:07Caroline A. Flynn No, not against the state permitting agency. Now, you know, it's possible we could just bring the same suit but wait to bring it in federal court against the Air Force until after the permit issues. I think it would be odd to say that that's the point of finality because it would make finality turn on the decision of a non-federal actor. It would somehow make the previous decision by the Air Force non-final.

46:29Caroline A. Flynn But we do think that there has to be final agency action by the Air Force at some point given that there is a NEPA obligation here and we need to be able to enforce it. We don't think waiting to sue until after the permit issues serves anybody because, if the NEPA, you know, review produces a different application or, in our view, produces a determination not to seek a application from Guam at all because the Air Force decides to treat its waste somewhere else that's not in this location --

46:57Elena Kagan Well, let me do --

46:58Caroline A. Flynn - they would have wasted their time.

46:58Elena Kagan I'm sorry?

46:59Caroline A. Flynn They would have -- it would wasted the permitting agency's time to have ruled on that application and have everybody double back at that point.

47:05Elena Kagan I -- I -- I guess the reason to think it makes better sense to wait is the one that Justice Jackson suggested, that because this is -- there is a gigantic contingency here and the permit might not be issued in the way the Air Force would like it to be issued, that seems like a big waste of time if you can actually get review in the way, you know, of -- of the NEPA obligation once we know what the permit is going to look like.

47:34Caroline A. Flynn So that's not the way that the NEPA obligation works. NEPA is very clear that you have to undertake the analysis before proposing a major federal action. And it also talks about bringing entities like Guam EPA to the table as what NEPA calls cooperating agencies, and those are agencies who have jurisdiction by law over some part of the project or some environmental effects involved.

47:57Caroline A. Flynn And so, if this had been done properly, the Air Force would do its NEPA analysis, bring E -- or Guam EPA in on the process, get their views then, and then, if they decided to go forward with a permit for open detonation on Tarague Beach, submit that permit, which, given that Guam EPA had already been involved, I would assume would -- could be approved readily.

48:19Caroline A. Flynn But this is exact -- I mean, NEPA, the whole point of NEPA is to make sure that these -- this kind of evaluation is happening before resources -- resources are committed, such as resources in the form of teeing up a plan for an application and before the die is cast. So, no, it would not satisfy NEPA for that to all happen after the Air Force bakes its plan, tees it up, and then says: Okay, wait, now we're going to decide whether -- or we're going to evaluate the environmental effects of what we have already -- you know, the ball we've already started rolling.

48:48Amy Coney Barrett But aren't NEPA challenges often made after the conclusion of the process? I'm just thinking about the posture of Seven County, which we decided in 2025. I mean, I agree with you that if the obligation applies, it's something that has to happen at the front end, but it seems to me like NEPA challenges do sometimes happen at the back end.

49:06Caroline A. Flynn So a NEPA challenge, because the route for challenging a NEPA violation is through the APA, it requires final agency action. And so, yes, it often happens that a NEPA analysis is concluded at the same time a decision is made on the major federal action that is the subject of NEPA. Here, we think that is what happened because the Air Force decided it wanted to continue these operations.

49:27Amy Coney Barrett But I'm just saying that it wouldn't be unusual. Justice Kagan and Justice Jackson and Justice Kavanaugh too were talking about the waste of time having the whole process run before a court addressed whether the NEPA obligation was complied with. And I'm just saying it seems to me as I understand it that that is often what happens.

49:47Caroline A. Flynn So -- well, I guess I'm not sure -- I'm not familiar with situations that would happen like this, where a plan is devised and the Air Force decides to put it forward and then acts on that plan by continuing open detonation at the site by virtue of the extension and then doubles back and does a NEPA analysis after the fact.

50:06Amy Coney Barrett But I'm glad you raised the extension because Mr. Joshi pointed out that the legal consequence actually didn't -- wasn't triggered by the application itself but, rather, by the Guam EPA's failure to act on the application before the expiration date of the prior permit. What is your response to that?

50:24Caroline A. Flynn So both are necessary conditions. But I think the fact that the submission of the application is a necessary condition is all that is required for a legal consequence for purposes of Bennett prong 2. I don't think this Court's cases have said it has to be a completely sufficient condition on its own.

50:42Caroline A. Flynn And I think one case that illustrates this is Dalton versus Specter. So, there, of course, the Court ruled that the Secretary's action recommending certain military bases for closure was not final agency action, but the Court did find that the President's action was final action. It's just that he's not an agency.

51:00Caroline A. Flynn And, there, the process didn't end with the President. There was also -- the President had to submit the base closures to Congress, and there was a 45-day time built in for Congress to essentially veto what the President wanted to do by joint resolution. So, there, you still had a period of -- there was required inaction by another actor, but this Court still found the President's decision to be final action.

51:22Caroline A. Flynn If there's one thing that I -- or one aspect of my friend's presentation that I would like to clarify, and that is whether or not a finding that there was no final agency action in this case could address the question of whether or not there was a NEPA violation here. So the relevant language in the amended version of NEPA says that there's no obligation to do an EIS if the proposed agency action is not a final agency action. So that means that if the actual operations themselves, once fully authorized and fully permitted, if those aren't a final agency action, then there's no EIS requirement.

51:58Caroline A. Flynn But I think -- I think it's hard to dispute that the actual operations themselves, once they're being carried out, is final agency action. And so I don't think that is a route to avoid the text of NEPA, which is very clear that NEPA is not displaced in the absence of something like a clear and fundamental conflict or an express exclusion of the kind that Congress has repeatedly done over the years but did not do for -- for RCRA.

52:23Brett M. Kavanaugh Isn't the oddity of this case -- I think Justice Thomas alluded to this -- the oddity of this case is that the permitting agency is not a federal agency. But Mr. Joshi responds to that by saying: Well, even in that, here, territorial permitting process, you can still raise the argument that NEPA wasn't complied with.

52:43Brett M. Kavanaugh And you came in and said: No, you actually couldn't raise that argument. And I just want you to explain why you think that's the case.

52:52Caroline A. Flynn Yes. So I don't -- so, if we were to challenge Guam EPA's decision on a permit, whenever that decision happens, that is done under Guam -- the equivalent of Guam administrative law, so like the Guam APA. And I don't see how we could go --

53:07Brett M. Kavanaugh Well, I think Mr. Joshi was suggesting -- sorry to interrupt.

53:10Caroline A. Flynn Yeah.

53:10Brett M. Kavanaugh Mr. Joshi was -- you could raise a federal issue in that process that would tee up a federal issue, I gather, is what he was saying -- he can correct me if I'm wrong on rebuttal -- but -- and that would be that NEPA was not complied with.

53:24Caroline A. Flynn The Guam EPA has no obligation to police the Air Force's compliance with NEPA. They don't enforce NEPA. There's nothing in RCRA requiring them to ensure that NEPA was required -- was complied with. So we would have no basis to say that Guam EPA did anything wrong with respect to NEPA.

53:39Elena Kagan And just to make sure I understood your prior answer to me, you think the same is true of a state EPA?

53:44Caroline A. Flynn Yes, I think the same is true of a state EPA because they also don't have a NEPA obligation. And they have the --

53:51Sonia Sotomayor Well, wait a minute. I -- I'm totally lost here. The Guam EPA has to accept an obligation that complies with RCRA law, correct?

54:05Caroline A. Flynn They have to --

54:06Sonia Sotomayor And if RCRA law requires an NEPA, wouldn't they be acting ultra vires by approving something without NEPA?

54:16Caroline A. Flynn So they have to fulfill all of RCRA's requirements. And I am just saying that because NEPA's a --

54:20Sonia Sotomayor And if that includes -- and if that includes that the application must have a NEPA analysis, why isn't the failure subject to Guam review?

54:35Caroline A. Flynn Because I don't think there's anything in RCRA that requires -- in RCRA itself -- there's certainly something in NEPA -- but I don't think there's anything in RCRA that requires the NEPA analysis. So I don't think that Guam EPA would have the authority to do anything if the Air Force failed to comply with NEPA.

54:50Neil Gorsuch I certainly want --

54:51Sonia Sotomayor There's --

54:51Neil Gorsuch I'm sorry. Please.

54:52Sonia Sotomayor No. I was just going to say 16 states plus D.C. and Puerto Rico have passed their own versions of NEPA in their RCRA obligations. Does Guam need to do that?

55:04Caroline A. Flynn Are you referring to the state laws that are sort of the --

55:07Sonia Sotomayor Yes. Exactly.

55:07Caroline A. Flynn - equivalent of NEPA? I'm not aware of any requirement for states and territories to pass their own version of NEPA as part of fulfilling their duty under RCRA.

55:18Sonia Sotomayor Okay. Then my research -- my clerk's research I'll have to look at more closely, but I thought there were 16 states and D.C. and Puerto Rico who, as part of the RCRA process, require their own version of NEPA.

55:32Caroline A. Flynn I'm not sure about the states requiring their own version of NEPA. I will say that, as that brief discusses, states find NEPA compliance extremely beneficial to them when they are ruling on RCRA applications because this is a way to, for instance, ensure that the location that is being teed up for RCRA review is the least environmentally destructive because NEPA forces the evaluation of alternatives that we say wasn't -- that didn't happen here, especially with respect to alternative sites.

56:03Sonia Sotomayor Thank you.

56:04Neil Gorsuch Ms. Flynn, are you saying that you'll -- I understand your concern about not being able to sue Guam EPA for the NEPA problem of the Navy, and I'm looking forward to hearing Mr. Joshi's response to that in rebuttal. But are you saying you would never -- if you should lose here on the question, first question presented, never be able to sue the Navy for a NEPA violation? Are you saying you -- you just don't see any avenue that your client could pursue?

56:37Caroline A. Flynn I think, if this Court found that there was no finality here because there was still some kind of a contingency, I would -- we would respectfully ask that the Court say that there is final agency action once that contingency is resolved so that we could file our federal APA suit against the Air Force then.

56:52Neil Gorsuch Well, whether we say that or not, I would think you would take that position, that there's final agency action when the Navy goes ahead and starts engaging in the activities that you think require a NEPA without having secured one.

57:05Caroline A. Flynn We would certainly take that position. I understood my friend to say here today that, no, that's still not federal -- or final agency action by the Air Force, that all -- the only agency action being done here is just by Guam EPA. I think that is strange when you have --

57:19Neil Gorsuch I think he's talking about the RCRA -- during the RCRA application process. Put that aside. I -- I didn't hear him say -- and maybe this is another question for Mr. Joshi on rebuttal -- but I -- I didn't hear him say, I -- I don't think, that there would never be a point at which there could be final agency action by actually engaging in the activity -- Navy's activities once -- once it secures a -- a license to do so.

57:44Caroline A. Flynn If I misunderstood him, I apologize. But we fully agree there has to be final agency action by the Air Force at some point that we can challenge in federal court under the APA. This can't just be -- because, I mean, the Air Force is making a different decision than whatever decision it is that Guam EPA eventually makes under RCRA.

58:02Caroline A. Flynn And I want to be very clear that our challenge to the Air Force now is about the procedural violation and the Air Force not complying with federal law in reaching the decision to proceed.

58:13Neil Gorsuch Last -- last --

58:13Caroline A. Flynn We're not --

58:14Neil Gorsuch - last question. How about agency action withheld? Have you thought about that as an avenue?

58:22Caroline A. Flynn Because they didn't comply with NEPA? Yeah, I think, you know, it's -- we recognize that it's a broader theory to say that, you know, a failure to comply with law is agency action withheld.

58:35Neil Gorsuch Unlawful.

58:35Caroline A. Flynn But we -- you know, that isn't something that's been litigated in this case because we -- we thought there was -- I mean, there is action here in the form of this application that is --

58:43Neil Gorsuch But that -- that question's not before us whether --

58:44Caroline A. Flynn It's not before you. Correct.

58:45Neil Gorsuch Yeah.

58:46Brett M. Kavanaugh I understood Mr. Joshi -- so this will be for him on rebuttal, but I'm asking it through you. (Laughter.) I understood him to say -- my understanding is the same as yours about what he said before, that you could never get in with an APA action even after the permit's approved. That was your understanding of what he said?

59:06Caroline A. Flynn It was, but he can correct me.

59:07Brett M. Kavanaugh He -- he -- he can clarify that. On the second question presented, which we may not get to, but if we do, I have two questions. One, what do you do with EPA's interpretation since 1980 that NEPA does not apply in a RCRA circumstance? We've often said, of course, that a consistent, longstanding agency interpretation of a statute carries great weight.

59:30Caroline A. Flynn Yes. So that regulation is just talking about EPA as the permitting authority, so it's saying that --

59:36Brett M. Kavanaugh It doesn't say that.

59:37Caroline A. Flynn Well, if you look, I think, in context, that becomes apparent. But you can also just look at the notice --

59:42Brett M. Kavanaugh But it doesn't say that, right?

59:44Caroline A. Flynn It says when EPA is the permitting authority.

59:47Brett M. Kavanaugh Mm-hmm.

59:48Caroline A. Flynn And when you look at the -- the NPRM and the preamble for the final rule, EPA explains where it got this rule from, and it says we got this from the D.C. Circuit's decision in Portland Cement, which is a functional equivalence case. And that case is very, very clear that the rule the D.C. Circuit was devising applies just to environmental agencies enforcing environmental law. And I think there's another Federal Register rulemaking from 2007 -- it's in our brief -- describing the regulation as applicable to certain EPA actions.

1:00:19Caroline A. Flynn So we don't think that touches on the question here about the permitter -- the permittee agency, and for that reason, there would be nothing for this Court to give weight to in evaluating the question here. I would also say that this Court said in Epic Systems that the job of reconciling different statutes is a job for courts, not agencies. So I'm not sure this is the kind of topic of how to, you know, interpret NEPA alongside RCRA. That is squarely in the agencies' wheelhouse.

1:00:49Brett M. Kavanaugh And the second question, which is, substantively speaking, what are the few things that would happen under NEPA that don't happen under RCRA?

1:00:59Caroline A. Flynn Sure.

1:00:59Brett M. Kavanaugh Substantively.

1:01:00Caroline A. Flynn Right. So I think the alternatives analysis that NEPA requires, which is, like, the heart of NEPA analysis, is important. Here, for instance, we think that alternative -- that NEPA would have required the Air Force to consider not just alternative procedures or modes of treatment but also just doing -- carrying out open detonations somewhere that was not on Guam, like shipping this waste to the mainland and carrying out these operations at another base.

1:01:27Caroline A. Flynn That is not something that Guam EPA would be required to consider under RCRA, and I don't think they could deny the permit on that basis because it's not something that RCRA authorizes them to do. The other thing I think is timing. I discussed about how NEPA envisions that this is all done before the plan is teed up, including bringing Guam EPA to the table. But also, the public comment happens at that early stage too. And it would be public comment to the Air Force as decision-maker, not just public comment to Guam EPA, which, yes, RCRA provides for, but, here, our client didn't have a route to speak to the Air Force and the military in trying -- especially in helping to develop or have them evaluate those alternatives.

1:02:11Samuel A. Alito, Jr. Do you think our case law supports the proposition that a newer statute that deals very extensively with a specific problem cannot displace an older statute that deals with a much broader range of activities, only if it is impossible to comply with both of those statutes?

1:02:40Caroline A. Flynn I do. I think this Court's cases have required a conflict. I think the Reading Law treatise says the same thing, that the specific-general principle is only when there is a conflict to be reconciled. I think Epic Systems, again, is a good example of this. There, there was a specific-general argument being made, and the Court said, no, we can harmonize these statutes and that is where our duty lies.

1:03:05Samuel A. Alito, Jr. You think that the duty to harmonize is consistent with a requirement that it must be absolutely impossible to comply with both?

1:03:15Caroline A. Flynn Yes, but also certainly here, where Congress has stepped in in NEPA and told us what the ground rules are for displacement and said not just that there has to be a conflict but there has to be a clear and fundamental one. And that comes from this Court's decision in 1976 from Flint Ridge, where the Court said, because NEPA has this language about how agencies must interpret and administer their laws to the fullest extent possible with NEPA, that language was specifically trying to avoid a situation like this, where an agency, as the Court put it, shunts aside the NEPA obligation in the bureaucratic shovel -- shuffle.

1:03:55Caroline A. Flynn So, you know, I think, again, NEPA is designed to do this kind of thing. When you look at even the current Department of War NEPA procedures, you can see all the ways in which they say: Integrate review under other environmental laws. Do it all at once. Make sure you don't have duplicative documents. Make sure the documents do cover everything they need to cover and name all the permits that are required and everything like that.

1:04:18Caroline A. Flynn But this is -- this is a strength of NEPA, is to make sure that they can cover all the fronts at once and not have duplication because it's just done once.

1:04:26Amy Coney Barrett Ms. Flynn, Justice Thomas's interchange with you, I mean, he pointed out that this is kind of an unusual situation. And this situation in which you're arguing that an application is final agency action is perhaps born of the fact that this is the regulated entity, as the government, and Guam, you know, territory or a state EPA, is the decision-maker.

1:04:47Amy Coney Barrett If we say that this is final agency action, what ramifications do you think this would have in the more normal situation where you have -- to the extent the government is the one who's the regulated entity seeking a permit appearing before EPA or some other, like, you know, the Surface Transportation Board or something like that, would this have a big impact or no?

1:05:09Caroline A. Flynn I don't think that this is going to open the floodgates to more attacks on permitting decisions. So the first thing I'd say is that our -- our position -- we -- we fully agree that we can't use this suit as a way to, like, collaterally attack whatever decision Guam EPA makes or to say that this application is deficient under RCRA. So I don't think this is an avenue for suits like that.

1:05:31Caroline A. Flynn The other thing I'd say is that our claim is a procedural claim that focuses on the decision-making of the federal entity. So the only kinds of claims that can be brought under a theory like this are ones where there is a law that applies to the decision-maker of the federal agency as the permittee. The other thing I would say is that, if you agree with me that there has to be final agency action at some point by the Air Force in this process, then whatever floodgates there are would already have been opened because that final agency action happens at the point of the permit issuance. So, if people wanted to be suing the permittee agency, they could have been doing so at that point.

1:06:08Caroline A. Flynn I think the fact that the government hasn't pointed to those suits is because, you know, you really do have to have the confluence of a claim that attaches to the permittee agency's decision-making that's not just a way to, you know, try another way of complaining about whatever it is the permitting agency, the permitting authority, does.

1:06:26Elena Kagan If I could just make sure that your understanding of your own claim is that the final agency action here is the submission of the application. It's not any kind of preexisting decision or severable decision to go ahead with these operations that the Air Force has made. Or do you think that, in fact, there's no difference between the two?

1:06:50Caroline A. Flynn I think there's no difference between the two, and that's why I'm fully comfortable with saying that the final agency action is the submission of the application. I think the application reflects the decision. It's memorialized there. And it also implements it by bringing about the automatic extension but also by binding Air Force personnel to the application's terms upon Guam EPA's approval.

1:07:13Ketanji Brown Jackson And I guess the question is: It reflects the decision to do what? Mr. Joshi says, from the very beginning, it reflects the decision to make a proposal to another agency that has the authority to say yes or no, et cetera, et cetera. And you said that has no bearing on whether or not we should consider this final agency action?

1:07:35Caroline A. Flynn I think it --

1:07:36Ketanji Brown Jackson I mean, you do agree that it's -- it's the decision to make a proposal?

1:07:40Caroline A. Flynn May I --

1:07:41John G. Roberts, Jr. Yes, of course.

1:07:42Caroline A. Flynn I think it reflects the decision to continue these operations past when they otherwise would have ceased because the Air Force was forced to a choice: Do we want to stop when our permit would expire, or do we want to keep going? And I think it reflects the decision to keep going. And I think that is fully the Air Force's decision to make. That's not Guam EPA's decision to make.

1:07:59Caroline A. Flynn And, yes, it leads to teeing up this other decision by the regulator, but that doesn't change the Air Force made its own decision.

1:08:06Ketanji Brown Jackson Thank you.

1:08:07John G. Roberts, Jr. Thank you, counsel. Oh, Justice Thomas?

1:08:11Clarence Thomas I'd like to go back to my point. When we had the Seven County case here, the Surface Transportation Board considered the proposal of Seven County to build the railroad spur, and it was the Surface Transportation Board's NEPA report that was being considered. Here, we -- you're saying that the regulated body -- and, of course, there was a final agency action there because they actually submitted that.

1:08:48Clarence Thomas But, here, you're saying that the regulated body that submits the proposal actually has engaged in and -- a -- a -- a final agency action. And I asked you for any other examples that you might have of the regulated body's request or application being considered a final agency action.

1:09:18Caroline A. Flynn So no other example comes to mind in this Court's case law, but I would say that it's clear that NEPA attaches to the -- to federal agencies' own operations, so their actions about, you know, like the operations here, what they are doing and not just their actions as a regulator. And so I think the upshot of --

1:09:38Clarence Thomas No, we're -- we're not -- excuse me. I'm sorry. I'm sorry to interrupt you. We're not talking about the NEPA requirement. We're talking about whether or not the APA final agency action applies for the purpose of using APA as an avenue to challenging this.

1:09:59Caroline A. Flynn Right. And I was -- what I was getting at is that if it were true that there can never be final agency action when the government's own operations are involved and they're not acting as a regulator, you would never be able to bring an action challenging a NEPA violation for the government's own operations, even though that seems like, you know --

1:10:16Clarence Thomas That's --

1:10:17Caroline A. Flynn - a pretty clear --

1:10:17Clarence Thomas - that's -- that's not the point I'm making. It's -- I'm -- the point I'm making is, is there final agency action when the government is the applicant, not whether or not it's taking an action?

1:10:31Caroline A. Flynn Yes. Our position is that there is because they reached the culmination of their decision-making process about their own operations but about the decision at hand and it produced legal consequences.

1:10:42Clarence Thomas Do you have another example of that happening?

1:10:47Caroline A. Flynn I would say Biden versus Texas, the agency was deciding its own policy for immigration enforcement. So the DHS Secretary was making a decision about what DHS employees would do. That's what this Court framed it as, was a determination of what DHS employees would have to do once the injunction in that case -- or if the injunction in that case was lifted.

1:11:10Caroline A. Flynn So I do think this Court's finality inquiry is no different when it comes to the federal government's actions, you know, as an entity carrying out its own operations and not just its actions as a regulator.

1:11:24John G. Roberts, Jr. Justice Alito? Justice Sotomayor? Justice Kagan? Justice Gorsuch?

1:11:28Neil Gorsuch I guess I'm just a little curious. Do you think you could bring -- I'm repeating myself for both of you. Do you think you could bring an action for agency action unlawfully withheld, and why -- why didn't you try that avenue?

1:11:46Caroline A. Flynn With apologies, I -- that's not the action we brought here, and I don't want to make commitments about a question when it arose in a different case.

1:11:56Neil Gorsuch Okay. All right. Thank you.

1:11:58Caroline A. Flynn Thank you.

1:11:59John G. Roberts, Jr. Justice Kavanaugh? Justice Barrett?

1:12:03Amy Coney Barrett No.

1:12:03John G. Roberts, Jr. Justice Jackson? No? Thank you, counsel. Rebuttal, Mr. Joshi.

1:12:11Sopan Joshi Thank you, Mr. Chief Justice. Just a few points. First, to address the questions that Justice Gorsuch and Justice Kavanaugh had, our position, just to be clear, is that the claim, as we understand it, and I think Ms. Flynn confirmed, was that they are saying the submission of the RCRA application is final agency action.

1:12:30Sopan Joshi We don't think that's final agency action. And, indeed, the submission of the application, our position is, that that is just not agency action at all. It'll never become final. It's just an application. The final permit, when it issues, will be final, but it'll be final from the regulating entity, Guam EPA, or federal EPA if it's Iowa.

1:12:49Sopan Joshi As far as when the Air Force's action becomes final, I mean, if it's a case where, as Justice Thomas was suggesting, if after receiving a permit the agency issued an order saying, now go blow up these waste munitions on Guam, that would be an order. That would be a final agency action. If Respondent wants to bring a claim saying, even absent such an order, there is a silent, implicit order, we can have that fight. We'd probably oppose that. I'm sure they would say, no, there really is an order, and that would be a final agency action. But that would have nothing to do with the RCRA permit. It would have nothing to do with the RCRA permit application, which is what we're concerned with here.

1:13:27Sopan Joshi And that gets me to my second point, which is Ms. Flynn said she wasn't worried about opening the floodgates. I don't see how. If you find that submission of a RCRA permit application is final agency action because the applicant happens to be a federal agency, I don't know how you distinguish it from any one of the tens of thousands of permit applications that federal agencies file and hold at the current time.

1:13:52Sopan Joshi Every single application would be final action, which could immediately trigger a lawsuit. And it doesn't have to be a procedural lawsuit, as Ms. Flynn said. It could be anything. It could be your application was arbitrary and capricious because you didn't consider X, Y, and Z. You shouldn't have applied for it. You should have decided to do something different.

1:14:12Sopan Joshi And if the application is revised, you're going to have another lawsuit, three years of litigation in between. And then, when the final permit issues, I suppose we'll have yet another one. So I think the floodgates are real. And, yes, Ms. Flynn is right that once there is some final action, a permit is issued, if the agency issues an order and does something, there will be a lawsuit then. That's unavoidable in our system.

1:14:33Sopan Joshi But the whole point of the finality rule is to challenge all of the challenges into a single proceeding at the end. Finally, I just want to say, in terms of, Justice Alito, you were asking about conflict and impossibility and when do both statutes apply, I don't think it's right that there has to be a metaphysical impossibility of complying with both statutes. I think a conflict can be just inconsistency between the two, with a specific and a general.

1:15:02Sopan Joshi And, again, the best case for that I think I'd cite is an environmental case. It's Home Builders, which we cite in our brief. And that was one where the Clean Water Act had, I think, nine criteria that EPA had to look at and see if they were satisfied, and the claim that the plaintiffs brought there was: Well, by its terms, the Endangered Species Act could also apply to this situation.

1:15:25Sopan Joshi And the Court said we are not going to engraft additional requirements. Given how reticulated the Clean Water Act is with nine requirements, we're not going to engraft a tenth. I think the same would be true here. Unless the Court has further questions, we'd ask to reverse.

1:15:38John G. Roberts, Jr. Thank you, counsel. The case is submitted.