The Supreme Court considered a legal battle on Wednesday involving an environmental challenge to the Air Force’s practice of detonating unexploded munitions, including explosives dating back to World War II, at a base on the Pacific island territory of Guam.
The high court heard oral arguments in Department of Air Force v. Guahan over whether activists can challenge the Air Force’s application to renew a permit to continue destroying unexploded waste military munitions at a beach on the north-eastern coast of the island. The Air Force’s permit renewal application from 2021 is at the center of the lawsuit, with environmental activists attempting to end the practice of detonating the munitions at the base in Guam.
The activists who brought the lawsuit claim the beach where the detonations occur is “an important cultural and historical site” for Guam, that it sits “atop Guam’s main source of drinking water,” and that the National Environmental Policy Act requires the Air Force to look for alternative options to destroy the waste munitions and seek public input. In its brief to the high court, the environmental activists claim the Air Force failed to do so, and they filed a lawsuit even as the federal government was going through the renewal process for the permit.
The Air Force has argued the renewal application for the permit does not constitute a “final agency action” and therefore cannot be subject to review at this stage. The federal government also said in its brief to the high court that it has been doing detonations at the site since 1982 and that it received permits to do so from appropriate authorities consistently over those four decades. The Air Force defended its use of the site, noting that the “isolated location limits human exposure to material at the facility.”
Wednesday’s oral arguments at the Supreme Court centered around whether the Air Force’s application for renewal to Guam’s Environmental Protection Agency for an environmental permit can be reviewed under the Administrative Procedure Act, a law that allows final government actions to be reviewed in federal court.
The justices appeared skeptical of the activists’ claims that the application was a renewable final agency action, with Justice Clarence Thomas asking Caroline Flynn, the lawyer for the activists, if there were previous examples of a federal court endorsing their claim.
Department of Justice lawyer Sopan Joshi, representing the Air Force at Wednesday’s hearing, argued to the justices that the application process “triggers a back-and-forth process whose outcome is, by definition, a moving target until a decision on the permit is issued.” Joshi also received a grilling by the justices over when a decision by the Air Force could be challenged.
The Supreme Court is set to issue a ruling in the case in 2027, with the end of June 2027 being the latest a decision could come down.
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The high court opened its new term earlier this week with oral arguments in a different environmental case, which is set to have sweeping ramifications for climate change lawsuits across the country.
The justices will return to the bench for oral arguments on Tuesday, when they hear a case involving sentencing guidelines, followed by the final oral arguments for the October sitting next Wednesday in a case over the sharing of consumer data by video websites. The Supreme Court’s oral arguments for this term will continue with monthly sittings, each lasting two weeks, through the end of April.