The Supreme Court wrestled Wednesday with how to resolve a dispute over the disposal of military munitions on a Guam beach that environmentalists say threatens the island’s main water source, the surrounding environment and an important cultural site.
The justices appeared to think that the Air Force and the group challenging the disposal, Prutehi Guahan, had made compelling points during roughly 1½ hours of questioning, indicating it might be difficult for the high court to arrive at a ruling.
The case turns on technical legal questions, but at stake is an idyllic stretch of coastline that is home to migratory birds, sea turtles and a 3,000-year-old village that was home to the Indigenous Chamorro people. The bombing site also sits atop an aquifer that provides drinking water for more than 80 percent of the people living on the island, a U.S. territory in the Pacific Ocean.
The Air Force has been exploding bombs, tear gas, grenades and other munitions, including some that date to the World War II era, on Tarague Beach since 1982. The Air Force has been renewing its permit to continue the disposal every three years. The beach is part of Andersen Air Force Base on Guam’s north coast.
The current fight kicked off in 2021 when the Defense Department applied for a new permit. Prutehi Guahan, a nonprofit group that aims to preserve the island’s habitat and cultural history, sued the next year, saying the National Environmental Policy Act (NEPA) required the military to perform an environmental review to obtain a permit.
A federal court dismissed the lawsuit, but a divided appeals court ruled it could go forward. The Supreme Court agreed to take up an appeal by the government in March, setting the stage for Wednesday’s arguments.
Prutehi Guahan said in court filings that the destruction of the munitions in open pits sends shrapnel into the ocean and surrounding area and leaches toxic chemicals into the ground. The group says the beach is popular with local residents.
The group also said the government should examine new technologies that could lessen the impact of the disposal on the environment.
The government argued in court filings that the lawsuit was premature, since Guam’s Environmental Protection Agency has yet to issue a permit. It also said it did not have to perform an environmental review because another federal law governing the handling of hazardous waste already required environmental analysis.
The justices peppered Assistant Solicitor General Sopan Joshi on both points, but several justices were particularly strong in questioning whether the government’s reading of the law left any room to legally challenge the issuance of a permit.
“The Air Force’s action is never final so never reviewable?” Chief Justice John G. Roberts Jr. told Joshi, summing up his take on the government’s position.
But some of the justices also expressed discomfort with allowing groups to file a lawsuit when an agency has simply put forward a proposal to do something. Joshi said it could open the “floodgates” to rounds of litigation.
“You’re saying that the regulated body that submits the proposal actually has engaged in a final agency action,” Justice Clarence Thomas told Prutehi Guahan’s attorney, referring to the standard required to legally challenge a government move. “And I asked you for any other examples that you might have of the regulated body’s request or application being considered a final agency action.”
The attorney, Caroline Anne Flynn, admitted she knew of no other.
The high court will probably issue a decision before the end of the term in June or July.
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