US lawmakers nix Air Force's explosive waste disposal plan on Guam

By Mar-Vic Cagurangan and Jayvee Vallejera

The Department of the Air Force is mandated to follow the National Environmental Protection Act, according to four House Democrats who argue in support of Prutehi Guahan's bid to stop open burning and open detonation at Andersen Air Force Base.

In an amicus brief, the U.S. lawmakers asked the U.S. Supreme Court to uphold an appeals court's ruling, which faulted the Air Force for failing to evaluate alternative munition disposal technologies listed in the National Academies Report.

"Had the (Air Force) followed NEPA, the most cost-effective, gold-standard recommendations from the National Academies could have been put into practice," states the amicus brief.

The brief was filed by Reps. Jared Huffman, Julia Brownley, Debbie Dingell and Pablo Jose Hernandez, all members of the Natural Resources Committee at the U.S. House of Representatives.

They pointed out that NEPA requires an environmental impact study, which is designed to minimize "environmentally controversial decisions."

"The reason to nip bad ideas 'in the bud' is to prevent federal agencies, and in turn, American taxpayers, from wasting money on imprudent expenditures when better alternatives exist," they argued.

"For the cost-saving benefits of NEPA to accrue, the EIS needs to occur at the earliest possible moment, before any irreversible and irretrievable commitments of federal resources have been made," they added.

The proposed waste disposal site sits directly above the northern lens aquifer, Guam’s primary source of drinking water.

The Supreme Court is set in October to hear the Air Force's appeal of the Ninth Circuit Court's 2025 decision in favor of Prutehi Guahan's lawsuit.

The Air Force plans to detonate 35,000 lbs. of bombs and burn other hazardous waste munitions each year in the open air at Tarague Beach, a restricted area within AAFB, which is a popular spot for swimming and snorkeling.

The Air Force plans to detonate 35,000 lbs. of bombs and burn other hazardous waste munitions each year in the open air at Tarague Beach. Photo courtesy of USAF

The Air Force argues that its waste disposal activities are adequately governed by hazardous waste permits under RCRA.

The congressional amicus brief, however, countered that "issuance of other environmental permits does not obviate the need for coordinated reviews under NEPA."

In a separate amicus brief, Guam attorney Julian Aguon of Blue Ocean Law said NEPA is the only "structured opportunity" for the civilian community to participate in federal decisions affecting them.

"NEPA is a lifeline on Guam, where military decisions have profound consequences, but where the ordinary structures of federal accountability are absent," Aguon said.

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A coalition of organizations from U.S. territories has filed a separate amicus brief supporting Prutehi Guahan and restating Aguon's arguments.

They argued that U.S. territories are denied the only tools they have for participation and accountability when federal agencies are allowed to avoid engaging with the public on matters that affect them.

The amicus brief, filed by advocacy group Right to Democracy and the Curtis, Mallet-Prevost, Colt & Mosle LLP law firm, frames this dispute against the continued disenfranchisement of the 3.6 million Americans living in U.S. territories.

They speculated that the supposed compliance with RCRA rules was a pretext to bypass the broader, early-stage public participation and environmental impact mandates demanded by NEPA.

The coalition warns that stripping NEPA protections in favor of a reactive RCRA permitting process would dismantle the primary legal mechanism through which island residents can influence federal agency decisions that directly impact their health, cultural heritage and natural environment.

Despite being subject to federal laws, administrative regulations and military say-so, territorial residents continue to live in what the brief describes as an “undemocratic framework that denies consent of the governed.”

“Viewed against this structural backdrop, where ‘consent of the governed’ is largely illusory, NEPA is not merely a procedural formality for communities in the territories," the brief states,

They argue that NEPA and RCRA are complementary regulations, not redundancies, and have fundamental differences.

For one, NEPA requires federal agencies to evaluate environmental consequences and engage with the public while still in the planning stage. In contrast, public engagement under RCRA only happens after an agency has already decided where and how to operate.

NEPA also strictly requires an analysis and identification of alternative sites and methods if less hazardous options exist, the amicus said. RCA merely evaluates a pre-selected facility or location for technical compliance. It does not analyze whether Tarague Beach is an appropriate location in the first place.

In terms of cultural and ancestral significance, NEPA requires federal agencies to evaluate potential harm to cultural and historical sites, while RCRA does not entail a similar mandate.

Both Tarague Beach and the nearby Ritidian Point hold rich spiritual, historical and cultural significance for the indigenous CHamoru people, containing village sites and latte stone remnants.

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