The United States Air Force has a munitions problem, which is that munitions keep showing up unexploded, and it has a favored solution, which is to blow them up on purpose on Tarague Beach in northern Guam. It has done this for a long time. On Wednesday the Supreme Court heard arguments over whether it can keep doing it, in a case that asks, essentially, how much paperwork the government has to fill out before it sets off explosives on a beach that people consider sacred and that sits above the island’s drinking water.
The challenger is a Guam conservation group called Prutehi Guahan, and its argument, as Al Jazeera reported, is that the longstanding use of Tarague Beach for open detonations may harm the ecosystem, damage an important cultural and historical site, and threaten the island’s water resources. Earthjustice, which backs the group, describes the site as sacred to Guam’s people. The group’s broader complaint is that the military sidestepped the review that would have weighed all this, and that US territories — whose residents cannot vote for the president and have no voting member of Congress — have little recourse when it does.
Here is the legal machinery, which is where the case gets interesting. Two federal environmental laws do overlapping work. One requires agencies to study the environmental impact of major federal actions before taking them. Another regulates hazardous waste and runs on permits. The Air Force’s position is that its detonations are covered by the second regime — it has a longstanding hazardous waste permit, and renewing that permit is not the kind of fresh decision that triggers the first law’s review requirement. The Ninth Circuit disagreed, ruling 2-1 that the Air Force’s decision to seek renewal of the permit was a final agency action that could be challenged in court, according to a summary by Greenberg Traurig. The Air Force then asked the justices to reverse, and as SCOTUSblog noted, the questions before the court in Department of the Air Force v. Prutehi Guåhan are highly technical, centering on the interaction — or lack thereof — between the two statutes.
Strip out the doctrine and the fight is over a familiar trick. Imagine you run an agency that does something controversial over and over. Each individual act is small and arguably already authorized, so no single one ever seems like the moment to stop and do the big study. Twenty years later nothing has ever been reviewed, because there was never a decision to review — just a long sequence of non-decisions. The conservation group’s whole case is that renewing a permit forever is itself a decision, and that the word “final” should not be a hiding place for permanent arrangements.
One way to read the case is as a test of who counts in American environmental law. Guam is where the ordnance is, and where the water is, and it had no vote for the people who wrote either law. The Supreme Court will now decide whether the island at least gets the hearing the statutes promise everyone else.