Supreme Court review goes beyond military waste disposal for Guam residents
The high court seemed to question when, not if, the Air Force should face environmental review challenges to disposing hazardous waste on Guam’s beaches.
by Kelsey Reichmann, Court House News, October 7, 2026
WASHINGTON (CN) — The U.S. military’s disposal of waste munitions on Guam’s beaches left the Supreme Court grappling on Wednesday with how to square federal environmental rules with the island’s unique territorial status.
For a little over an hour, the justices examined the contours of the permitting process for disposing of hazardous waste on Guam, including whether the Air Force must comply with the National Environmental Policy Act, known as NEPA.
Members of a local Guam nonprofit, Prutehi Guåhan, said that question is particularly significant for the territory because its residents have limited opportunities to influence the federal government’s decisions.
“Guam is a colony of the United States,” Monaeka Flores, executive director of Prutehi Guåhan, said after the court’s arguments. “We do not have political equity. We do not have voting representation in Congress. We do not vote for the president. The National Environmental Policy Act is an important mechanism that actually carries a lot more weight at home in terms of federal projects that go through the process.”
At Andersen Air Force Base on Guam’s northern coast, the military disposes of unexploded World War II-era weapons and munitions through controlled detonations or burn pits. The dispute before the Supreme Court stems from a 2021 permit application seeking to detonate around 30,000 pounds and open burn 5,000 pounds of waste munitions.
For nearly four decades, the Guam Environmental Protection Agency approved permits for the waste disposals, but in 2021 the agency delayed the Air Force’s renewal application based on public comments.
Prutehi Guåhan sued the Air Force, claiming it failed to submit the environmental impact statements and environmental assessments required by NEPA. The group says exposure to materials that made up the munitions — like black powder, red and white phosphorus and tear gas, among other hazardous materials — put nearby reefs and other ecosystems at risk, along with the island’s main aquifer in the north.
The Air Force urged the justices to quash Prutehi Guåhan’s lawsuit, arguing the permitting application couldn’t be challenged yet because it wasn’t a final decision. But the federal government said the group’s lawsuit should also fail because the military’s munitions disposal was governed by the Resource Conservation and Recovery Act, a different federal law that applies specifically to hazardous waste.
The Supreme Court seemed skeptical that the Air Force wasn’t bound by both federal statutes. Several justices noted NEPA is required during the permitting process unless Congress said otherwise.
“We know that Congress explicitly does away with NEPA in a bunch of different ways, and they know how to do it because they do it frequently,” Justice Sonia Sotomayor, a Barack Obama appointee, said. “But they haven’t done it in this context.”
The court also seemed broadly concerned about precluding all review of the Air Force’s munitions detonations under NEPA. But they were also apprehensive that permitting the lawsuit right now could be pointless if the Air Force’s permit was later approved under different conditions by Guam’s EPA.
“There is a gigantic contingency here, and the permit might not be issued in the way that the Air Force would like it to be issued,” Justice Elena Kagan, another Obama appointee, said. “It seems like a big waste of time if you can actually get a review in the way of the NEPA obligation once we know what the permit is going to look like.”
Throughout the argument, the high court struggled with the novelty of the dispute. Justice Clarence Thomas, a George H.W. Bush appointee, noted the court typically reviews cases where a regulatory body — such as the EPA — makes a decision and the justices must decide whether it is ripe for challenge.
“This is an odd case because we are not talking about a regulatory body making a decision to do something itself without permission,” Thomas said. “We are talking about a regulated body asking permission to do something.”
While Prutehi Guåhan conceded there may be other paths to challenge the Air Force’s permit, the group said its claims would be limited.
“The Guam EPA has no obligation to police the Air Force’s compliance with NEPA,” Caroline Flynn, an attorney with Earthjustice representing the group, said. “They don’t enforce NEPA … So we would have no basis to say that Guam EPA did anything wrong with respect to NEPA.”
Concerns about Guam’s sovereignty were absent in the courtroom, but the issue was top of mind outside the Supreme Court, where advocates like Adi Martínez-Román, co-founder and co-director of Right to Democracy, rallied in support of Prutehi Guåhan.
“We are ruled under plenary power of Congress because of previous decisions of this court,” Martínez-Román said, referring to the Insular Cases. “This case is important because it could give another space for disenfranchisement over our lands.”