Justices Probe Air Force Bid to Skip NEPA Review for Guam Bombing

The Supreme Court on Wednesday grappled with a dispute over whether the U.S. Air Force must perform an environmental review before conducting live-fire munitions exercises on the Pacific island of Guam. At issue is a challenge by an environmental advocacy group, Prutehi Guåhan, which argues that the Air Force's decision to seek renewal of a hazardous-waste permit from Guam's environmental regulator triggered obligations under the National Environmental Policy Act (NEPA).

Prutehi Guåhan contends that by filing the permit renewal application with the Guam Environmental Protection Agency, the Air Force effectively allowed itself to continue operating under the previous permit, making that filing a final agency action subject to judicial review. The Ninth Circuit Court of Appeals sided with the group, but the Air Force is asking the Supreme Court to reverse that ruling, asserting that a permit application is not a final agency action and that NEPA does not apply because the permit is sought under the Resource Conservation and Recovery Act (RCRA), which specifically governs hazardous waste disposal.

The case carries broader implications for how federal agencies, including the military, navigate environmental review requirements when other authorities—like Guam's EPA—have oversight. A ruling against the Air Force could compel more extensive NEPA assessments for a range of federal actions, while a ruling for the military could narrow the scope of environmental challenges to agency decisions.

During oral arguments, the justices appeared divided, with several questioning the Air Force's position that its application to renew the permit cannot be challenged. Chief Justice John Roberts pressed the government's lawyer, noting that under the military's logic, the Air Force's action would never be final and therefore never reviewable, even after Guam grants the permit. "You could always change your mind," Roberts said, adding that the Air Force could simply decide to do something different later.

Justice Brett Kavanaugh echoed that concern, remarking, "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." The justices also questioned the environmental group's argument, with Justice Amy Coney Barrett asking whether finding the permit application to be final action would open the floodgates to challenges of routine permitting decisions. Attorney Caroline Flynn, representing Prutehi Guåhan, downplayed that risk, asserting, "I don't think that this is going to open the floodgates to more attacks on permitting decisions."

The justices also delved into whether the RCRA's specific provisions implicitly override NEPA's broader requirements. Justice Department lawyer Sopan Joshi argued that the specific statute should take precedence under the "specific-general canon" of statutory interpretation, but Justice Neil Gorsuch pushed back, asking how that exclusion could be implicit when NEPA does not explicitly exempt such actions. When Gorsuch pressed Joshi on what would happen if the court disagreed, Joshi conceded, "Then we lose."

Justice Samuel Alito similarly probed Flynn on whether Supreme Court precedent requires a direct conflict between statutes before a newer, more specific law can displace an older, broader one. Flynn maintained that the court's cases require such a conflict, while Alito questioned whether the duty to harmonize the two laws could coexist with a requirement of absolute impossibility.

The outcome could reshape how the military and other federal agencies approach environmental reviews, particularly in territories like Guam where local regulators have authority. A decision is expected by the end of the court's term in June. The case is one of several this term where the conservative majority has signaled skepticism toward expanding NEPA's reach, following last term's ruling that narrowed the scope of environmental assessments.