Supreme Court weighs case over Air Force detonating munitions in Guam

The Supreme Court on Wednesday wrestled with a case about whether the Air Force needs to conduct environmental review before its munitions detonations in Guam.

An environmental group, Prutehi Guåhan, has sued, saying that the decision to file a permit renewal application with the Guam Environmental Protection Agency (EPA) constitutes an agency action that triggered environmental review, noting that the move to submit the renewal application automatically allowed the Air Force to continue operating under the prior permit.

The Ninth Circuit court of appeals agreed with Prutehi Guåhan.

The Air Force, however, has asked the court to overturn that decision. It argues both that a decision to file a permit application is not a final agency action subject to judicial review and that since it is seeking the permit under the nation’s hazardous waste law, it does not have to conduct an environmental review under a separate statute known as the National Environmental Policy Act (NEPA).

NEPA requires the government to consider environmental consequences of major federal actions before they are carried out.

The case could have broader implications for whether the U.S. 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 justices asked tough questions of both the Air Force and Prutehi Guåhan, not giving a clear indication of which way they would rule.

However, in a case last term, the court narrowed the scope of environmental reviews under NEPA , and its conservative justices may not want to expand the jurisdiction of the environmental statute.

The justices questioned the Air Force’s logic that the application to renew its detonation permit is not an agency action, asking whether opponents could ever sue to stop it.

“So you’re saying that there’s no point at which the Air Force’s decision can be challenged because even if Guam goes ahead and says, ‘OK, you know, granted,’ you’re saying you don’t have to go forward with it. You could always change your mind. You could say, ‘Oh, OK, now we’re going to do something different.’ The Air Force’s action is never final and therefore never reviewable,” said Chief Justice John Roberts.

“I’m not seeing how it would make any sense to say that it’s not final, but then that NEPA still applies, which is a possible outcome here,” added Justice Brett Kavanaugh.

However, the justices also questioned the environmental organization about whether deciding that the application is a final challengeable action could have broader implications for permit applications.

“If we say that this is final agency action, what ramifications do you think this would have in the more normal situation where, to the extent the government is the one who’s the regulated entity seeking a permit, appearing before EPA or some other like you know service transportation board or something like that, would this have a big impact or no?” asked Justice Amy Coney Barrett.

“I don’t think that this is going to open the floodgates to more attacks on permitting decisions,” responded attorney Caroline Flynn, who represented Prutehi Guåhan.

The justices also asked tough questions of both sides on whether the fact that the Air Force was seeking a permit under the Resource Conservation and Recovery Act, which governs hazardous waste disposal, necessarily excluded NEPA review.

They asked the government about provisions in NEPA that say a review has to be completed unless the review would conflict with another law.

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

“So it’s implicitly excluded?” asked Justice Neil Gorsuch. “How is it implicitly excluded?”

“Under the specific-general canon. That is a well-known doctrine of law in which a more specific statute …,” Joshi replied.

“OK, but if I disagree with you about that?” asked Gorsuch.

They questioned Flynn on the same issue.

“Do you think our case law supports the proposition that a newer statute that deals very extensively with a specific problem cannot displace an older statute that deals with a much broader range of activities only if it is impossible to comply with both of those statutes?” asked Justice Samuel Alito.

“I do. I think this court’s cases have required a conflict,” Flynn responded.

“Do you think that the duty to harmonize is consistent with the requirement that it must be absolutely impossible to comply with both?” Alito pressed.