In our upcoming November gathering, we will preview an environmental law case on the Supreme Court's docket, Department of the Air Force v. Guahan, which addresses whether the federal government must complete a full environmental review under the National Environmental Policy Act (NEPA) before applying to renew a hazardous waste permit with a territory's regulator. To understand this case, it is necessary to examine the history and the central debate that has defined NEPA since its inception in 1969.
NEPA was passed during the height of the modern environmental movement with a sweeping mandate: to force federal agencies to integrate environmental considerations into their decision-making processes. The primary mechanism of the Act is the Environmental Impact Statement (EIS)—a detailed, public document evaluating the environmental consequences of a proposed federal action and listing alternatives. However, in the decades since its passage, a fundamental tension has emerged: is NEPA a substantive tool designed to change the *outcomes* of federal decisions, or is it a purely procedural requirement designed to ensure that agencies follow a specific *process*?
The Supreme Court has consistently ruled that NEPA is strictly procedural. It does not mandate that an agency choose the most environmentally friendly option; it only requires that the agency "look before it leaps." If an agency completes a massive, multi-year, thousands-of-pages-long review, it has fulfilled its NEPA duties, even if it ultimately decides to build a highway or renew a hazardous waste permit that harms the environment. This procedural focus has turned environmental reviews into a massive bureaucratic paper loop. Critics argue that the EIS process has been weaponized as a litigation tool to delay infrastructure projects for years, while defenders contend that the procedural friction is the only thing that forces agencies to act with basic accountability.
This November, we will discuss how Air Force v. Guahan will shape this boundary. We will analyze whether requiring a full NEPA review for routine state-level permit renewals introduces unnecessary administrative gridlock, or if it remains a vital check on federal operations in vulnerable territories.