Guam munitions case puts residents’ access to early court review at stake

Prutehi Guåhan says materials in the munitions, including black powder, red and white phosphorus, and tear gas, could threaten nearby reefs, ecosystems and Guam’s main northern aquifer. Those are the nonprofit’s stated concerns about the proposed methods, not findings that contamination has occurred.

The application is both a permit request and a federal choice

The first question is when the Air Force’s application becomes final enough for a court to review. Under the Administrative Procedure Act, the law governing challenges to federal agency action, the dispute turns on whether filing the renewal application was a final agency action or merely a step toward a later decision.

The Air Force argues the application is not final because Guam EPA still controls the permit process and can alter or reject the proposal. The agency delayed the renewal after public comments. In the Air Force’s view, a court challenge now would get ahead of a local decision that could change the terms at issue.

Prutehi Guåhan sees the application as evidence that the federal government has already chosen to continue disposal by detonation and burning. The Ninth Circuit ruled for the group on the questions now before the Supreme Court, and the Air Force is asking the justices to reverse that result.

The distinction matters to residents who want to influence a plan before it is locked into a permit. If an application is not reviewable until Guam EPA finishes its work, the local process comes first. If the application itself reflects a settled federal choice, the Air Force could face a court challenge earlier, while the proposal is still under review.

Justice Elena Kagan questioned the possibility of intervening before the territorial regulator decides what it will approve. Courthouse News Service reported that she said, “There is a gigantic contingency here, and the permit might not be issued in the way that the Air Force would like it to be issued.” That concern captures the Air Force’s strongest point: the permit’s final terms may differ from its request.

But the possibility of changes does not settle whether the military has made its own consequential decision. The nonprofit’s argument is that a federal agency should not get to postpone review of its plan simply by asking another regulator for permission to carry it out. The Court’s answer will determine which step counts as the moment for a legal challenge.

A local hazardous-waste permit does not answer the NEPA question

The second question concerns two federal laws. The Resource Conservation and Recovery Act, or RCRA, establishes a system for regulating hazardous-waste permits, which can be administered by authorized territorial regulators. The National Environmental Policy Act, or NEPA, requires federal agencies to assess environmental effects and alternatives.

The Air Force says RCRA supplies the relevant review process for this application and makes a separate NEPA review unnecessary at this stage. Prutehi Guåhan argues that the laws do different work: a permit process does not replace the Air Force’s duty to assess the effects of its own decision and consider alternatives before committing to a course of action.

That is the core accountability issue. Guam EPA’s authority over a hazardous-waste permit gives the territory a role in deciding what the facility may do. It does not, the nonprofit argues, transfer the federal government’s responsibility to examine its own proposal under NEPA.

Justice Sonia Sotomayor pressed the Air Force’s position on whether Congress had set aside NEPA for this kind of process. Courthouse News Service reported her saying, “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.” Her question points to the gap between the Air Force’s argument that RCRA governs and the nonprofit’s position that NEPA remains in force.

A ruling for the Air Force could narrow when federal environmental review is required during a permitting process like this one. A ruling for Prutehi Guåhan could leave in place the Ninth Circuit’s conclusion that the Air Force had to address environmental effects and alternatives before submitting its application. Either way, the Court is not deciding whether the proposed disposal has caused environmental damage or whether the methods are permissible in every circumstance.

Guam residents should not be caught between two regulators

The division of authority has consequences beyond legal timing. Guam EPA handles the local permit, while the nonprofit says that agency does not enforce NEPA. Caroline Flynn, the group’s attorney, told Courthouse News Service, “The Guam EPA has no obligation to police the Air Force’s compliance with NEPA.” Prutehi Guåhan argues that if federal review is delayed or excused, the local process cannot fill that particular role.

The Air Force’s contrary argument also rests on respect for the local process: Guam EPA can respond to public comments and decide what conditions the permit should contain. That authority matters. But it does not by itself answer whether a federal agency has considered the broader environmental effects and alternatives of its own decision.

Prutehi Guåhan’s leaders have connected that question to Guam residents’ limited influence over federal decisions. Executive Director Monaeka Flores told Courthouse News Service, “We do not have political equity.” She also said residents lack voting representation in Congress and do not vote for president, describing NEPA as an important mechanism in decisions about federal projects.

That argument gives the procedural dispute a local dimension. The timing of review determines whether residents can ask a court to scrutinize the Air Force’s environmental process while its plan is taking shape, or only after the territorial permit process has advanced. It also determines whether responsibility for federal review stays with the federal agency or becomes harder to pursue across the boundary between federal and territorial authority.

The decision will determine whether Prutehi Guåhan can seek judicial review of the Air Force’s proposal before Guam EPA finishes weighing the permit, and whether the federal agency must carry out NEPA review during this permitting process.