The U.S. Supreme Court heard arguments on Wednesday, Washington, D.C. time, in a case involving an open detonation pit on Andersen Air Force Base.
The group Prutehi Guåhan sued the Air Force in 2022, arguing that open detonation of hazardous waste and unexploded ordnance endangers Guam’s environment, cultural heritage and ancestral lands.
In May 2021, the Air Force applied for a three-year renewal of its hazardous waste facility permit with the Guam Environmental Protection Agency. In court filings, Prutehi Guåhan stated that the Air Force failed to conduct an environmental assessment of its actions as required by the National Environmental Policy Act.
The case was dismissed in the District Court of Guam, but the 9th Circuit Court of Appeals sided with Prutehi Guåhan and reinstated the case.
The Supreme Court is considering whether the Air Force’s request to renew its permit would be a “final agency action” that can be reviewed by the courts. Justices are also considering whether federal agencies must comply with NEPA requirements before seeking to renew environmental permits.
During oral arguments before the court, Department of Justice attorney Sopan Joshi argued that filing a permit application is not a final agency action.
“It’s a request to someone else to take action,” he said. “Filing a permit application triggers a back-and-forth process whose outcome is, by definition, a moving target until a decision on the permit is issued. Treating an application as final would just lead to a multiplicity of suits throughout a permitting process, which I think defeats the whole point of the finality requirement.”
Chief Justice John Roberts, a George W. Bush appointee, asked Joshi when the Air Force’s decision to operate the detonation pit would be considered final.
“So are you saying that there’s no point at which the Air Force’s decision can be challenged?” he asked. “The Air Force’s action is never final and, therefore, never reviewable?”
“The application is never going to become final agency action,” Joshi said. “And there is no cause of action under NEPA itself. Congress didn't provide one. So any review would have to go through the [Administrative Procedure Act], and I don't think the APA provides a cause of action for this application at any point in time.”
Earthjustice attorney Caroline Flynn, representing Prutehi Guåhan, said the Air Force’s final action is clear.
“We know that the Air Force is settled on that decision because it has, in fact, been acting on them past -- you know, by continuing these detonation operations past September 2021, when they otherwise would have ceased.”
The justices will consider the arguments, and a ruling will likely take several months.
