The Supreme Court this week hears Dept. of the Air Force v. Prutehi Guahan, a case with significant implications for environmental justice in U.S. territories. While attention focuses on other environmental matters, this litigation raises fundamental questions about the reach of the National Environmental Policy Act (NEPA) and the scope of federal agency obligations. The dispute centers on whether the Department of the Air Force is required to conduct environmental reviews before submitting a permit renewal application for hazardous waste disposal operations on Guam, under the National Environmental Policy Act (NEPA).
Environmental Stakes in Guam
The case originates on Guam, a Pacific island territory where the U.S. military operates multiple installations, including Anderson Air Force Base. Local communities gather traditional medicines nearby and engage in subsistence fishing, while the area sits above Guam’s sole-source aquifer that supplies drinking water to over 80 percent of the population.
These operations involve placing waste munitions in five-foot-tall burn kettles, adding diesel fuel and wood, and burning munitions in open air, or detonating them in pits via remote triggers. The waste includes unexploded ordnance, tear gas, ammunition, and propellants dating back to World War II. OB/OD operations are hazardous, releasing heavy metals, perchlorate, particulate matter, PFAS, PCBs, dioxins/furans, and other toxins when conducted, according to a 2024 federal register notice.
Regulatory Context and Legal Arguments
In 1980, the Environmental Protection Agency banned OB/OD for RCRA interim status facilities, with one exception for waste explosives that cannot safely be disposed of through other methods. The 2022 PACT Act identified over two dozen cancers and diseases presumptively associated with exposure to burn pits, though it primarily assists veterans rather than addressing current operations. During the Biden administration, EPA proposed new regulations to shift disposal practices toward alternative technologies, but the rule died after delays in OMB review and the public comment process.
As Guam administers its own RCRA program, permits are typically valid for three years. The 2018 permit expired in 2021, requiring renewal, but it remained effective during Guam EPA’s review of the new application.
In January 2022, plaintiffs sued the Air Force, claiming NEPA violations for submitting the renewal application without preparing an environmental impact statement or assessment. The Air Force counters that submitting a permit application may not be considered “final agency action” under the Administrative Procedure Act, as it merely initiates an ongoing process without immediately determining legal rights. Additionally, it argues RCRA’s specific procedures preempt NEPA requirements under the “specific governs the general” canon, citing EPA regulations that treat RCRA permits as functionally equivalent to NEPA reviews.
The U.S. district court initially dismissed the complaint, agreeing with the Air Force’s arguments. However, the Ninth Circuit reversed in 2023, ruling that the Air Force’s decision to submit the permit renewal application constituted final agency action because it extended the 2018 permit’s life beyond its original three-year term. The circuit also found that RCRA and NEPA can coexist, as they serve different purposes and involve different actors—RCRA focuses on technical waste management at a specific site, while NEPA considers broader alternatives and timing.
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Supreme Court Arguments and Precedent
It further contends that RCRA’s specific procedures preempt NEPA requirements under the “specific governs the general” doctrine. The Air Force cites EPA regulations treating RCRA permits as functionally equivalent to NEPA reviews, emphasizing that the 2021 application merely extended the 2018 permit’s expiration.
Plaintiffs counter that the 2021 application finalized the Air Force’s decision to continue operations, extending the permit beyond its original term. The Ninth Circuit agreed, noting Guam EPA’s failure to adopt EPA’s NEPA exemption for RCRA permits.
Legal and Environmental Justice Implications of Supreme Court Case
Guest contributor Clifford Villa, a law professor at the University of New Mexico School of Law, writes that the Supreme Court case Department of the Air Force v. Prutehi Guahan raises profound questions for democracy and environmental justice.
The case centers on two legal questions: whether a renewal application under the Resource Conservation and Recovery Act may constitute final agency action for Administrative Procedure Act review, and if NEPA applies to federal agencies before submitting such applications. Resolution of these issues carries substantial implications for environmental justice in U.S. territories impacted by military activities.
Amicus Briefs Highlight Broader Implications
Amicus briefs filed by organizations in Guam and other U.S. territories emphasize NEPA’s role in environmental justice. They argue that NEPA serves as a critical tool for communities lacking voting representation in Congress, enabling participation in federal decisions affecting them. The briefs reference Guam’s Superfund sites, linked to military activities at Andersen Air Force Base, which have contaminated groundwater.
Another amicus highlights historical precedent, citing Weinberger v. Romero-Barcelo, where the Supreme Court denied injunctive relief for Navy bombing operations in Vieques, Puerto Rico. The case led to the Atlantic Fleet Weapons Training Area Superfund Site, requiring cleanup efforts costing hundreds of millions. The briefs note that without NEPA, territorial residents like those in Guam have limited avenues to challenge harmful federal actions.
The 2022 Honoring our PACT Act, which identifies cancers linked to burn pit exposure, is noted as addressing veteran health but not current operations. The briefs argue that NEPA may remain a mechanism for addressing ongoing OB/OD practices in Guam, where alternatives exist but have not been adopted by the Air Force. The Court’s decision may set precedent for federal agencies’ obligations under NEPA in permit renewals across U.S. territories. The briefs also emphasize that the Ninth Circuit’s ruling may preserve Guam EPA’s authority to conduct its own environmental review, which could ensure local communities have a voice in decisions affecting their health and environment.