Prutehi Litekyan: Save Ritidian v. United States Department of the Air Force

• Court: District Court, D. Guam
• Decided: October 6, 2022
• Docket: 1:22-cv-00001
• Status: Unknown

Opinion

7 THE DISTRICT COURT OF GUAM

8 PRUTEHI LITEKYAN: SAVE RITIDIAN, CIVIL CASE NO. 22-00001 9 Plaintiff, 10 vs. DECISION AND ORDER 11 GRANTING DEFENDANTS’ UNITED STATES DEPARTMENT OF THE MOTION TO DISMISS 12 AIR FORCE; FRANK KENDALL, Secretary of the Air Force; UNITED STATES 13 DEPARTMENT OF DEFENSE; and LLYOD AUSTIN, Secretary of Defense, 14 Defendants. 15

16 This matter came before the court for a hearing on September 28, 2022, on Defendants’ 17 Motion to Dismiss, ECF No. 19. Mr. David Henkin of EarthJustice argued for the Plaintiff, and 18 Mr. Matthew Rand of the U.S. Department of Justice, Environmental and Natural Resources 19 Division, argued for the Defendants. For the reasons stated herein, the court GRANTS 20 Defendants’ motion to dismiss. 21 A. Relevant Background 22 The Plaintiff, Prutehi Litekyan: Save Ritidian, is a non-profit corporation based in Guam. 23 Compl. at ¶ 9. The Complaint states that the group’s mission is to “protect natural and cultural 24 1 resources in all sites identified for military live-fire training in Guam for the well-being of the 2 people and future generations of Guam.” Id. 3 Defendants are the United States Department of the Air Force; Frank Kendall, in his 4 official capacity as Secretary of the Air Force; United States Department of Defense; and Lloyd 5 Austin, in his official capacity as Secretary of the Department of Defense. Id. at ¶¶ 19-22.

6 The Complaint alleges that Defendants are in violation of the National Environmental 7 Policy Act, 42 U.S.C. § 4321 et seq., and its implementing regulations—the Council on 8 Environmental Quality (“CEQ”) and the Air Force regulations implementing the National 9 Environmental Policy Act; and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), 10 because Defendants failed to prepare an environmental assessment or environmental impact 11 statement. Id. at ¶¶ 59-63. 12 Specifically, on May 17, 2021, Andersen Air Force Base (AFB), Guam, submitted to the 13 Guam Environmental Protection Agency (“Guam EPA”) an application for a three-year renewal 14 of its Hazardous Waste Management Facility Permit for conducting open burning and open

15 detonation (“OB/OD”) of hazardous waste munitions at the Explosive Ordinance Disposal Range 16 (“EOD Range”) on Tarague Beach at the Andersen AFB. Id. at ¶¶ 2, 40. These hazardous waste 17 “consists of common military ordnance materials (such as black powder, white/red phosphorus, 18 tear gas, ammunitions, propellants, and explosive materials).” Id. at ¶ 43. 19 Anderson AFB received its first Hazardous Waste Management Facility Permit for its 20 OB/OD operations at the EOD Range in 1982. Id. ¶ 45. The permit is renewed every three years, 21 with Guam EPA having approved previous renewals. Id. The May 17, 2021 renewal application 22 remains pending, and Guam EPA has yet to make a decision on whether it will approve or deny 23 said application. Defs.’ Mot. at 1, ECF No. 19. 24 Plaintiff alleges that despite potential environmental impacts of OB/OD, Defendants 1 failed to prepare any National Environmental Policy Act analysis to “(1) take the requisite ‘hard 2 look’ at the environmental impacts of the proposed OB/OD operations, (2) consider a reasonable 3 range of environmentally preferred alternatives, including the ‘no action’ alternative, and (3) 4 provide opportunities for public comment on the proposed OB/OD operations and reasonable 5 alternatives,” in violation of the National Environmental Policy Act. Compl. at ¶ 2; see also ¶¶

6 56-57. Plaintiff alleges the National Environmental Policy Act analysis should have been done 7 prior to the submission of the renewal application. Id. at ¶¶ 61-63. 8 Defendants, on the other hand, argue that the National Environmental Policy Act does not 9 apply. Rather, its functional equivalent, the Resource Conservation and Recovery Act, 42 U.S.C. 10 § 6901 et seq., applies. Defs.’ Mot. at 8, ECF No. 19. In addition, Defendants argue that this 11 court lacks subject matter jurisdiction because the application is not a final agency action and 12 therefore, Defendants have not waived their sovereign immunity. Id. at 13-15. Defendants further 13 argue that this court lacks subject matter jurisdiction, because the claim is not ripe. Id. at 18-19. 14 Finally, Defendants argue that Plaintiff lacks standing because the harms being alleged are not

15 caused by the application itself but rather, a have-yet-to-be-issued permit. Id. at 16-18. 16 B. Standards 17 i. Rule 12(b)(1), lack of subject-matter jurisdiction

18 Article III of the United States Constitution requires that those who seek to invoke the 19 power of the federal courts must allege an actual case or controversy. See U.S. Const. art. III; see 20 also Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (citing Flast v. Cohen, 392 U.S. 83, 94-101 21 (1968)). Subsumed within this restriction are two components. Colwell v. Dep’t of Health & 22 Human Servs., 558 F.3d 1112, 1121-23 (9th Cir. 2009). “Standing and ripeness present the 23 threshold jurisdictional question of whether a court may consider the merits of a dispute.” Elend 24 v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006). “Both standing and ripeness originate from the 1 Constitution's Article III requirement that the jurisdiction of federal courts be limited to actual 2 cases and controversies.” Id. at 1204-05. 3 “The Article III case or controversy requirement limits federal courts’ subject matter 4 jurisdiction by requiring, inter alia, that plaintiffs have standing and that claims be ‘ripe’ for 5 adjudication … Standing addresses whether the plaintiff is the proper party to bring the matter to

6 the court for adjudication. The related doctrine of ripeness is a means by which federal courts 7 may dispose of matters that are premature for review because the plaintiff’s purported injury is 8 too speculative and may never occur.” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 9 1115, 1121-22 (9th Cir. 2010) (citations omitted). “The standing question is whether the plaintiff 10 has alleged such a personal stake in the outcome of the controversy as to warrant his invocation 11 of federal-court jurisdiction. The ripeness question is whether the harm asserted has matured 12 sufficiently to warrant judicial intervention. Both questions bear close affinity to one another.” 13 Immigrant Assistance Project of Los Angeles County Federation of Labor (AFL-CIO) v. I.N.S., 14 306 F.3d 842, 859 (9th Cir. 2002) (quotation marks, editorial brackets and citations omitted). See

15 also, City of Auburn v. Qwest Corp., 260 F.3d 1160, 1172 n.6 (9th Cir. 2001) (noting that 16 standing “overlaps substantially” with ripeness and that in that case, both were “inextricably 17 linked”). 18 ii. Rule 12(b)(6), failure to state a claim upon which relief can be granted

19 Federal Rule of Civil Procedure 12(b)(6) provides that, in response to a claim for relief, a 20 party may assert a defense of “failure to state a claim upon which relief can be granted” by way 21 of motion. Fed. R. Civ. P. 12(b)(6). 22 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 23 accepted as true, to state a claim to relief that is plausible on its face.” Id. (citing Twombly, 550 24 U.S. at 570) (internal quotation marks omitted). The court must engage in a two-step procedure 1 to determine the plausibility of a claim. Id. at 678–79. First, the court must weed out the legal 2 conclusions—that is “threadbare recitals of the elements of a cause of action, supported by mere 3 conclusory statements”—in the pleading that are not entitled to a presumption of truth. Id. at 678. 4 Second, the court should presume the remaining factual allegations are true and determine 5 whether the claim is plausible. Id. at 679.

6 A claim is facially plausible if “the plaintiff pleads factual content that allows the court to 7 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 8 (citing Twombly, 550 U.S. at 556). The court must “draw on its judicial experience and common 9 sense” to determine the plausibility of a claim given the specific context of each case. Id. at 679. 10 C. Discussion 11 i. Plaintiff lacks standing 12 The three fundamental elements of constitutional standing are injury in fact, causation, 13 and redressability: 14 [T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and 15 (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of 16 the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. 17 Hall v. Norton, 266 F.3d 969, 975 (9th Cir. 2001) 18 The actions taken by Defendants do not amount to injury to Plaintiff, i.e., the injury is not 19 fairly traceable to the challenged action of Defendants. While Plaintiff argues that it has suffered 20 an “injury in fact” through Defendants’ continued operation of the facility, the alleged injury 21 does not come from the submission of the application—the very action that is being challenged 22 here. 23 ii. Plaintiff’s claim is not ripe. 24 1 The question of timing turns on the jurisdictional doctrine of ripeness. “The ‘basic 2 rationale’ for the ripeness doctrine ‘is to prevent the courts, through avoidance of premature 3 adjudication, from entangling themselves in abstract disagreements’ over policy with other 4 branches of the federal government.” Hillblom v. United States, 896 F.2d 426, 430 (9th Cir. 5 1990), citing Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967).

6 Review is premature if the agency action is not final. Abbott Labs., 387 U.S. at 149. “A 7 claim is not ripe for adjudication if it rests upon contingent future events that may not occur as 8 anticipated, or indeed, may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) 9 (quotation marks omitted). “Two considerations predominate the ripeness analysis: (1) “the 10 hardship to the parties of withholding court consideration” and (2) “the fitness of the issues for 11 judicial decision.” Abbott Labs., 387 U.S. at 149. “To meet the hardship requirement, a party 12 must show that withholding judicial review would result in direct and immediate hardship and 13 would entail more than possible financial loss.” Dietary Supplemental Coalition, Inc. v. Sullivan, 14 978 F.2d 560, 562 (9th Cir. 1992).

15 In a nutshell, Plaintiff argues that the final agency action is the decision for Defendants to 16 submit the permit renewal application to the Guam EPA. The problem with this argument is that 17 the Guam EPA has not yet acted on the application to renew. As such, the legal rights of any of 18 the parties have not been altered. See Ohio Forestry Ass’n. v. Sierra Club, 523 U.S. 726, 733 19 (1998) (explaining that plaintiffs do not suffer a hardship when the agency actions in question 20 “do not command anyone to do anything or to refrain from doing anything; [] do not grant, 21 withhold, or modify any formal legal license, power or authority; [] do not subject anyone to any 22 civil or criminal liability; [or] create no legal rights or obligations.”). 23 iii. Motion to Dismiss under Rule 12(b)(6) 24 Assuming arguendo that this court has subject-matter jurisdiction, the court finds that 1 dismissal under Rule 12(b)(6) is appropriate. 2 1. The National Environmental Policy Act and the Resource Conservation and Recovery Act 3 The National Environmental Policy Act is Congress’ broad national commitment to 4 protecting and promoting environmental quality. Robertson v. Methow Valley Citizens Council, 5 490 U.S. 332 (1989). Its purpose is to force a federal agency to carefully consider the 6 environmental impacts of its proposed actions; and it guarantees that relevant information will be 7 made available to the public and those who play a role in the decision-making process and 8 implementation of that decision. Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 768 (2004). 9 The Resource Conservation and Recovery Act, on the other hand, is issue specific and is 10 not a broad statute like the National Environmental Policy Act. The Resource Conservation and 11 Recovery Act is a comprehensive environmental statute on hazardous waste that establishes a 12 “cradle to grave” regulatory scheme in order to protect public health and the environment. Am. 13 Chemistry Council v. EPA, 337 F.3d 1060, 1065 (D.C. Cir. 2003). It gives the regulatory power 14 to the U.S. EPA, and in turn, U.S. EPA may authorize a State to administer and enforce a 15 hazardous waste program. 16 2. Guam Environmental Protection Agency’s (“Guam EPA”) 17 Role in the Resource Conservation and Recovery Act

18 “Any State which seeks to administer and enforce a hazardous waste program” pursuant 19 to RCRA may develop a program and submit an application to the U.S. Environmental 20 Protection Agency (“U.S. EPA”) Administrator. 42 U.S.C. § 6926(b). The State applying must 21 meet certain conditions, including proof that the State has in existence a hazardous waste 22 program pursuant to State law and such program is “substantially equivalent” to the Federal 23 program. Id. § 6926(c)(1). Upon approval, “[s]uch State [is] authorized to carry out such 24 program in lieu of the Federal program . . . in such State and to enforce permits for . . . disposal 1 of hazardous waste[.]” Id. § 6926(b). “Any action taken by a State under a hazardous waste 2 program authorized . . . shall have the same force and effect as action taken by the [U.S. EPA] 3 Administrator[.]” Id. § 6926(d). 4 On August 23, 1985, Guam submitted an application to obtain Final Authorization to 5 administer the Resource Conservation and Recovery Act program. On December 12, 1985,

6 Guam was granted the Final Authorization. “This means that the Territory of Guam now has the 7 responsibility for permitting treatment, storage and disposal facilities within its borders and 8 carrying out the other aspects of the RCRA program.” Final Authorization of Territorial 9 Hazardous Waste Management Program, 51 FR 1370-02 (Jan. 13, 1986). Any actions taken by 10 the Territory of Guam through Guam EPA as it relates to the Resource Conservation and 11 Recovery Act program has the same force and effect as action taken by the U.S. EPA. 42 U.S.C. 12 § 6926(d). See also Chem. Weapons Working Grp., Inc. (CWWG) v. U.S. Dep't of the Army, 111 13 F.3d 1485, 1492 (10th Cir. 1997) (“[S]tate-issued permits under the Resource Conservation and 14 Recovery Act have same force and effect as those issued by Environmental Protection

15 Agency.”). 16 3. The Resource Conservation and Recovery Act is a functional equivalent of the National Environmental Policy Act and 17 therefore, the National Environmental Policy Act does not apply in this case. 18 Pursuant to the National Environmental Policy Act, all federal agencies, to the “fullest 19 extent possible,” are required to prepare an environmental impact statement on any “major 20 Federal actions significantly affecting the quality of the human environment[.]” 42 U.S.C. § 21 4332. The statement must include the following: “(i) the environmental impact of the proposed 22 action, (ii) any adverse environmental effects which cannot be avoided should the proposal be 23 implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short- 24 1 term uses of man’s environment and the maintenance and enhancement of long-term 2 productivity, and (v) any irreversible and irretrievable commitments of resources which would 3 be involved in the proposed action should it be implemented.” Id. § 4332(c). 4 Plaintiff argues that the National Environmental Policy Act is applicable in this case. 5 Therefore, Defendants should have prepared an environmental impact statement pursuant to 42

6 U.S.C. § 4332(c). Defendants, however, argue that because they are seeking a permit from Guam 7 EPA pursuant to the Resource Conservation and Recovery Act, they do not need to comply with 8 the National Environmental Policy Act because the Resource Conservation and Recovery Act is 9 a functional equivalent of the National Environmental Policy Act. 10 There is no Ninth Circuit caselaw on the issue of whether the Resource Conservation and 11 Recovery Act is a functional equivalent of the National Environmental Policy Act. However, the 12 Ninth Circuit has previously held that there are exemptions from the procedural requirements 13 under the National Environmental Policy Act, which Judge John C. Coughenour of the Western 14 District of Washington discussed in great length. Judge Coughenour put these exemptions into

15 two overlapping categories: the first focuses on a direct conflict between statutory texts, which is 16 not applicable in the instant case; and the second focuses on whether the National Environmental 17 Policy Act procedures will be redundant with those provided for under the statute seeking 18 exemption. 19 In the second category of exemptions, courts have found that NEPA does not apply when procedures under another statute “displace” (or make 20 “superfluous”) the NEPA procedures, or provide the “functional equivalent” of the NEPA procedures. Though both types of arguments 21 concern a comparison between the procedures provided for in the statute in question and those in NEPA, functional equivalence doctrine simply 22 looks to the procedures themselves; if they are sufficiently analogous, they will be held to be functional equivalents. Displacement analysis, on 23 the other hand, attempts to discern whether Congress intended for the statutory scheme to replace the NEPA procedures; procedures that 24 displace NEPA procedures are not necessarily analogous to NEPA 1 procedures. Douglas County, 48 F.3d at 1504 n. 10 (contrasting the displacement argument, which “asserts that Congress intended to 2 displace one procedure with another” with the functional equivalent argument, which is that “one process requires the same steps as 3 another”).

4 The Ninth Circuit has relied on displacement analysis in holding that certain statutes, including portions of the ESA, are exempt from 5 NEPA. See id. at 1503 (ESA's procedures for critical habitat designation make NEPA procedures “superfluous”); Merrell, 807 F.2d at 778 6 (legislative history and differences between the two procedural schemes indicate that Congress intended to displace the NEPA procedures with 7 the carefully crafted compromise procedures in FIFRA).

8 The Ninth Circuit has also made use of the functional equivalence rationale, though not entirely without reservation. See Merrell, 807 F.2d 9 at 781 (“While we hesitate to adopt the ‘functional equivalence’ rationale, we are confident that Congress did not intend NEPA to apply 10 to FIFRA registrations.”); Anchorage, 980 F.2d at 1329 (“We are convinced that here ... the duties and obligations imposed on the EPA by 11 Congress under the [Clean Water Act (“CWA”) ] will insure that any action taken by the administrator under section 404(b)(1) will have been 12 subjected to the ‘functional equivalent’ of NEPA requirements.”).

13 . . .

14 Another thread that runs throughout the NEPA exemption case is consideration of whether NEPA’s purposes are in harmony with the 15 purposes of the statute alleged for which a NEPA exemption is being sought. Courts are more likely to find a NEPA exemption if the arguably 16 exempt statute is designed to protect the environment.

17 Trout Unlimited v. Lohn, No. CV05-1128-JCC, 2007 WL 1730090, at *14 -*16 (W.D. Wash. 18 June 13, 2007) (emphasis added) (brackets in original). 19 The Ninth Circuit is in line with other circuits that a National Environmental Policy Act 20 exemption is likely when the exempt statute is designed to protect the environment. For example, 21 in Municipality of Anchorage v. United States, the Ninth Circuit recognized that “[a] complete 22 exemption from NEPA requirements would enable EPA to act more expeditiously in fulfilling its 23 purpose of protecting the environment. Thus, as has been recognized, completely exempting 24 EPA from NEPA seems to best serve the objective of protecting the environment which is the 1 purpose of NEPA.” Anchorage, 980 F.2d 1320, 1328 (9th Cir. 1992) (internal quotes and 2 brackets omitted). However, the Ninth Circuit was cautious and noted that “it cannot be assumed 3 that EPA will always be the good guy.” Id. (citations omitted). As such, the Ninth Circuit 4 appears to indicate that a National Environmental Policy Act exemption will be reviewed on a 5 case-by-case basis. See id.

6 The Eleventh Circuit specifically addressed the issue of whether the Resource 7 Conservation and Recovery Act is a functional equivalent of the National Environmental Policy 8 Act. That circuit found that “Congress did not intend for EPA to comply with the National 9 Environmental Policy Act when RCRA applies to the particular EPA activity.” State of Ala. ex 10 rel. Siegelman v. U.S. E.P.A., 911 F.2d 499, 505 (11th Cir. 1990). It relied on other circuits’ 11 decisions dating back from the 70s that “an agency need not comply with NEPA where the 12 agency is engaged primarily in an examination of environmental questions and where the 13 agency’s organic legislation mandates specific procedures for considering the environment that 14 are functional equivalents of the impact statement process.” Id. at 504 (citations, internal

15 brackets and quotation marks omitted). 16 The appellate court further explained that specific statutes prevail over general statutes 17 dealing with the same basic subjects. Id. In that case as is the case here, the Resource 18 Conservation and Recovery Act is the specific statute created by Congress to address hazardous 19 waste disposal, whereas the National Environmental Policy Act is a general statute applicable to 20 any matters dealing with actions that significantly affects the environment. See id. 21 The appellate court also noted that the Code of Federal Regulation on the Resource 22 Conservation and Recovery Act specifically states that “all RCRA permits . . . are not subject to 23 the environmental impact statement provisions of section 102(2)(C) of the National 24 Environmental Policy Act, 42 U.S.C. 4321.” Id. at 502 n.6; see 40 C.F.R. § 124.9(b)(6). 1 It appears that the Eleventh Circuit is the only appellate court who has specifically 2 addressed the issue of whether the Resource Conservation and Recovery Act is a functional 3 equivalent of the National Environmental Policy Act. However, other circuits have addressed the 4 National Environmental Policy Act requirements being inapplicable to EPA. See e.g., Env't Def. 5 Fund, Inc. v. Env't Prot. Agency, 489 F.2d 1247, 1257 (D.C. Cir. 1973) (“We conclude that

6 where an agency is engaged primarily in an examination of environmental questions, where 7 substantive and procedural standards ensure full and adequate consideration of environmental 8 issues, then formal compliance with NEPA is not necessary, but functional compliance is 9 sufficient.”); State of Wyo. v. Hathaway, 525 F.2d 66, 69 (10th Cir. 1975), cert. denied, 426 U.S. 10 906 (1976); and Indiana & Michigan Elec. Co. v. E.P.A., 509 F.2d 839, 843 (7th Cir. 1975). 11 Given the consistent positions of many courts on the National Environmental Policy Act 12 exemptions as to EPA and viewing what is the most pragmatic approach, this court finds the 13 Eleventh Circuit’s ruling instructive. It makes the most sense to apply the Resource 14 Conservation and Recovery Act, because that specifically deals with the environmental issue at

15 hand. Through the Resource Conservation and Recovery Act, a comprehensive process of 16 hazardous waste disposal is complied with, including the issuance of a permit for the disposal 17 itself. This is accomplished through the U.S. EPA, or in this case, through the Guam EPA, who 18 has full authorization from the U.S. EPA. Guam EPA has its own process for issuing a permit, as 19 well as a public comment period. It would be redundant and a waste of resources to require 20 Defendants to comply with the National Environmental Policy Act, while also having already 21 complied with the Resource Conservation and Recovery Act through its permit application.1 22 Without the permit, Defendants would not be able to operate its hazardous waste disposable

23 1 Ultimately, it appears that Plaintiff’s real issue is the possible eventual approval of the permit by Guam EPA. See Compl. at ¶ 12 (“In October 2021, Prutehi Litekyan submitted a letter to the Guam EPA Administrator, urging the 24 agency to deny Andersen AFB’s application for renewal of the hazardous waste permit for OB/OD operations at the EOD Range.”). Page 13 of 13 1 || facility. As such, the additional procedure requirement of the National Environmental Policy Act 2 || serves no purpose. 3 Other than a brief discussion in a footnote, Plaintiff mostly ignores Defendants’ argument 4 || of a National Environmental Policy Act exemption. See Pl.’s Opp’n. at 7 n.1, ECF No. 20. It 5 || argues that the Ninth Circuit has been “skeptical of the ‘functional equivalent’ approach and 6 || ha[s] not used this language” in its cases, citing San Luis & Delta-Mendota Water Auth. v. 7 || Jewell, 747 F.3d 581, 651 0.51 (9th Cir. 2014). That Ninth Circuit panel did not engage in the 8 || functional equivalent analysis (“The defendants here do not advance the functional equivalent 9 || argument, so we do not address it.” /d.) and therefore, Plaintiffs reliance of a footnote only 10 || attempts to mislead this court. 11 D. CONCLUSION 12 For the foregoing reasons, the court GRANTS Defendants’ motion to dismiss. The court 13 || finds that it does not have subject-matter jurisdiction and even if it does, the court nonetheless 14 || dismisses the case under Rule 12(b)(6). 15 The Clerk of Court shall enter a judgment in favor of Defendants. 16 SO ORDERED. 17 /s/ Frances M. Tydingco-Gatewood Chief Judge 18 je Dated: Oct 06, 2022 mA

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