Today, General Counsel and Senior Fellow Tim Hwang, with help from Research Fellow Sam Roland, filed an amicus brief in support of the government in Department of the Air Force v. Prutehi Guahan.
Summary of Argument
The government is right that RCRA’s specific permitting scheme controls over NEPA’s general procedures. That result is no RCRA-only quirk or judgemade exemption. It follows from ordinary statutory ordering, from NEPA’s own limits on control and causation, and from the choice Congress made to give the operative environmental decision to the permitting authority, not to the applicant.
Four points follow. First, functional equivalence is a court-recognized doctrine that reflects ordinary statutory ordering, nothing more. Courts reach it when NEPA’s general procedures overlap a specific decision process Congress supplied for the same activity and the same decision.
Second, the line between applicant and regulator confirms the doctrine, because it marks who controls the decision. The Ninth Circuit thought the Air Force fell outside Siegelman because the agency was applying for the permit rather than issuing it. That understanding is backwards. RCRA gives the decision to the permitting authority; the applicant only asks to enter the process. Control therefore rests with Guam EPA.
Third, NEPA case law has always tied the duty to prepare an environmental document to legal control and causation. A document can inform only a major federal action the agency can lawfully make. As the Air Force cannot make this one, the duty does not apply. Fourth, NEPA’s current text confirms the same structure. The 2023 amendments need not decide this case, but they do serve to confirm the threshold inquiry the cases already performed.
Construed properly, the consequences of this Court confirming the functional equivalence doctrine are narrow. It leaves ordinary NEPA review in place and does not require ruling on any other permitting regime. The judgment should be reversed.
