Prutehi Guåhan, an environmental group, argued before the Supreme Court that the US Air Force illegally refused to conduct an environmental impact study on a weapons testing range in Guam.

The United States military has conducted live-fire weapons tests and exercises on the US territory of Guam in the Pacific Ocean for decades after the end of World War II. This included the US Navy’s anti-ship missile tests in August 2017, with formal local live-fire training ranges and comprehensive missile defense tests beginning major modern phases in September 2023 and December 2024.

Though these weapons are conventional rather than nuclear—indeed, the United States conducted nuclear tests on other Pacific islands that made them uninhabitable, notably Bikini Atoll in the Marshall Islands—there are growing concerns over the harm they may cause to locals and wildlife. This week, the United States Supreme Court is wrestling with whether the United States Air Force should be required to conduct environmental reviews before it continues with its practice of open burning and detonation of expired bombs, rockets, and hazardous waste munitions at Tarague Beach on Andersen Air Force Base (AFB), in the US territory in the Western Pacific.

On Wednesday, the nine justices heard 75 minutes of oral arguments in Department of the Air Force vs. Prutehi Guåhan, after that environmental group sued, claiming the live-fire exercises impacted Guam’s environment and culture.

The justices questioned whether the US Air Force’s application to renew its hazardous waste permit with the Guam Environmental Protection Agency (EPA) in 2021 triggered a requirement under the National Environmental Policy Act (NEPA) to conduct a detailed Environmental Impact Statement (EIS) on the test range. Prutehi Guåhan, meaning “Protect Guam” in the Chamorro language, has argued that detonating and burning military waste in open pits could release toxic chemicals into the soil and air, and shrapnel into the ocean. This could in turn threaten Guam’s coral reefs, sea turtle habitats, cultural sites, and even its primary drinking-water aquifer.

However, the Air Force has contended that reapplying for a triennial permit is a routine compliance action rather than a “final agency action” that would require a new environmental review. It argued that the reapplication of the permit should allow them to continue operations under prior rules.

Although a federal district court dismissed the lawsuit, the US 9th Circuit Court of Appeals in San Francisco agreed with Prutehi Guåhan. The Supreme Court took up the government’s appeal, hearing the legal arguments this week.

How Will the Supreme Court Rule on the Guam Case? No One Knows

Expert court-watchers contended after the arguments that the justices had not given any hints of how they might rule. Still, the high court notably narrowed the scope of environmental reviews under NEPA in a case it heard in the previous term.

“The case could have broader implications for whether the US government, including the military, needs to conduct environmental reviews of certain actions that are assessed by a separate authority such as the Guam EPA,” The Hill reported.

Among the concerns expressed by the justices was whether the application for a permit fell under the Resource Conservation and Recovery Act of 1976 (RCRA), which gives the federal EPA the authority to regulate hazardous waste, and excludes NEPA review.

“It doesn’t say expressly excluded,” Justice Department lawyer Sopan Joshi told the court.

However, Caroline Flynn, representing Prutehi Guåhan, countered that NEPA was “meant to be harmonized with other environmental laws,” including the RCRA. “It is what agencies call an umbrella law,” Flynn added. “It is meant to consolidate and streamline all required environmental analysis at an early juncture to ensure a better decision and better planning.”

It’s Getting Harder and Harder to Leave Your Toxic Waste Lying Around

This current case is just the latest to see a US state or territory sue the US military regarding ordnance and toxic waste disposal. Due to its nature as a US testing range, Guam has been the epicenter of high-profile legal battles, and in a separate 2017 landmark case—Guam v. United States—the territory’s government successfully sued the US Navy under the Superfund law (CERCLA).

In that case, the Supreme Court ruled unanimously in favor of Guam, allowing the territory to pursue the Navy for its share of a $160 million cleanup fund for a toxic landfill built by the military after World War II to discard ordnance, chemicals, and municipal waste.

Hawaii has also seen significant litigation regarding live-fire military training and unexploded ordnance, and native groups and environmental legal teams in the 50th state successfully sued the United States Army to halt live-fire mortar and ordnance testing in Oahu’s Mākua Valley.

It followed a series of lawsuits and settlements dating back to the 1990s, with the Mālama Mākua taking the US Army to court, calling for the service to comply with an EIS under NEPA. Subsequent lawsuits forced the military to conduct a comprehensive EIS and identify thousands of pieces of unexploded ordnance threatening cultural sites. Following prolonged legal pressure and environmental oversight, the US military accepted defeat and formally announced the permanent end to live-fire training in the Mākua Valley in December 2023.

There were also decades of protests, local government pressure, and complex legal challenges that ultimately forced the US Navy to halt live-fire tests on the Puerto Rican island municipality of Vieques in 2003. There remain legal and regulatory battles regarding the slow pace of the military’s unexploded ordnance cleanup and the toxic heavy metal contamination left behind.

Closer to the Pentagon, environmental groups filed a federal lawsuit against the US Navy three years ago over weapons and munitions testing on a stretch of the Potomac River in Virginia and Maryland, alleging that unrecovered shells and toxic explosive fragments were illegally polluting state waters with heavy metals without proper Clean Water Act permitting.

About the Author: Peter Suciu

Peter Suciu has contributed to dozens of newspapers, magazines, and websites over a 30-year career in journalism. He regularly writes about military hardware, firearms history, cybersecurity, politics, and international affairs. Peter is also a contributing writer for Forbes and Clearance Jobs. He is based in Michigan. You can follow him on Twitter: @PeterSuciu. You can email the author at Editor@nationalinterest.org.

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