Prutehi Litekyan: Save Ritidian, represented by Earthjustice, filed an appeal before the 9th Circuit Court of Appeals today, seeking to reverse the Guam District Court’s dismissal of Prutehi Litekyan’s lawsuit challenging the U.S. Air Force’s failure to comply with the National Environmental Policy Act (NEPA). The District Court let the Air Force off the hook from conducting any environmental review before it advances plans to blow up bombs and other hazardous waste munitions on the bare sand and burn them in the open air. The District Court improperly exempted the Air Force from NEPA just because the Air Force requires a permit from the Guam Environmental Protection Agency (Guam EPA) for its hazardous waste disposal activities.
The District Court’s decision is inconsistent with how NEPA has been implemented for decades. NEPA applies specifically to proposals for major federal action, yet the District Court is allowing the Air Force to circumvent the statute by unlawfully acting on its proposal when it sought a permit, uninformed by a NEPA analysis. If allowed to stand, the District Court’s decision would send a dangerous message to federal agencies, giving them the green light to ignore NEPA whenever they need a permit to conduct harmful activities.
Under NEPA, the Air Force must evaluate the environmental impacts of its proposal to open burn and open detonate hazardous waste munitions on Tarague Beach in northern Guam, prior to acting on that proposal. The Air Force also must consider alternatives to its proposed action, including alternative technologies for munitions disposal that are less environmentally destructive, and alternative locations, including sites further inland or outside of Guam.
Instead of studying alternatives, the Air Force seeks to continue open burning and open detonation (OB/OD) operations on ancestral lands that the military seized after WWII from CHamoru families. OB/OD operations could permanently contaminate the area with unexploded ordnance and toxic chemicals, effectively precluding the return of these lands to the families that originally owned them. OB/OD releases both toxic chemicals — such as RDX, HMX, TNT, perchlorate, and dioxins/furans — and unexploded ordnance directly to the surrounding land, air, and ocean. The Air Force could avoid the cultural and environmental harms caused by OB/OD on Tarague Beach by looking at alternative technologies and locations for its operations.
“Our lawsuit isn’t just about a permit application,” said Monaeka Flores of Prutehi Litekyan. “There are immediate consequences because the Air Force is blowing up munitions on ancestral lands right now under an expired permit. In dismissing our lawsuit, the District Court ignored that the Air Force is using its pending permit application to justify continuing to carry out open detonation operations that are contaminating our land and water with their toxic waste.”
“These destructive and outdated practices pose significant threats to vital fishing resources, sacred traditional medicines, and the life-sustaining aquifer that our indigenous people have depended upon for millennia. We are committed to this fight because it means the protection of these critical natural and cultural resources for all future generations of Guåhan (Guam),” said Jessica Nangauta of Prutehi Litekyan.
“In the National Environmental Policy Act, Congress commands all federal agencies, including the Air Force, to consider the harm their proposed projects would inflict, to look at better ways to get the job done, and to involve the public before they make a decision to proceed,” said Earthjustice attorney David Henkin, who represents Prutehi Litekyan. “We respectfully disagree with the district court’s conclusion that the Air Force gets a free pass and can ignore Congress just because it needs a permit to blow up bombs on the beach at Andersen Air Force Base, which is causing serious cultural and environmental harm. One alternative that the Air Force illegally failed to consider is disposing of its bombs at a location outside of Guam, which would avoid the need to get a permit from Guam EPA in the first place.”
The Air Force first received a permit to conduct OB/OD operations at Andersen Air Force Base in 1982, but no open burning has occurred in the past two decades. The Air Force has never conducted the legally required environmental review for OB/OD operations, despite the potentially significant harm to the surrounding environment. The OB/OD site is sandwiched between the Pacific Ocean (which lies about 180 feet away) and the jungle (80 feet away), and it sits above a shallow, unconfined aquifer.
OB/OD operations could contaminate the aquifer, which supplies drinking water to more than 80% of Guam’s population. Contaminants also could enter the ocean, harming local families that frequent nearby beaches and culturally significant fishing sites. The explosions from open detonation on the bare sand of Tarague Beach threaten harm to endangered green sea turtles, which nest there, and migratory seabirds that frequent the beach.
In 2019, the National Academies of Sciences, Engineering, and Medicine published a report on “Alternatives for the Demilitarization of Conventional Munitions” that concluded that “[v]iable alternative technologies exist within the demilitarization enterprise” for almost all the munitions in the military’s demilitarization stockpile, including munitions that the Air Force seeks to treat with OB/OD at Andersen AFB. The study further concluded that, as compared to OB/OD, the alternative technologies would all have “lower emissions and less of an environmental and public health impact.”