This story first appeared in Power Shift, The Yappie's weekly newsletter on national AAPI power, politics, and influence. Subscribe for free here.
A legal challenge that could have consequences for Pacific Islanders’ ability to exercise agency over their homelands reached the Supreme Court last week, casting a spotlight on the limited ways U.S. territories can make their voices heard.
Though Air Force v. Prutehi Guåhan revolves around conflicting statutes and technical legal definitions, it could determine if and how the U.S. military must answer to Guam residents over serious environmental concerns.
The backdrop: Pacific Islanders living in U.S. territories cannot vote in presidential elections and can only elect non-voting delegates to the House. That means they don’t have a direct say in the personnel and policies that govern the military or other federal agencies.
- As a result, Pacific Islanders have had to find other avenues of influence, especially over the increasingly fraught issue of military buildup and environmental safety on their lands.
What to know: In 2021, the U.S. military filed an application to renew a hazardous waste permit that has allowed the Air Force to dispose of expired bombs for decades by burning, destroying, and detonating them on Guam’s Tarague Beach, per the New York Times.
- Prutehi Guåhan, a nonprofit advocating for the protection of Guam’s natural and cultural resources, sued the Air Force for allegedly failing to perform an adequate review first under the National Environmental Policy Act (NEPA), which requires public input and evaluation of less environmentally harmful options.
- The Air Force countered that NEPA’s mandates don’t apply to the statute governing the permit process and that the lawsuit is premature (and therefore void) because the application itself does not constitute “final” agency action, the Pacific Daily News reports.
From a public health and environmental lens, the stakes are high. Tarague Beach overlays an aquifer that supplies most of the island’s drinking water, per Hawaii Public Radio.
- It also houses sites with historical, cultural, and religious significance for Guam’s CHamoru people, according to the Pulitzer Center.
- Since “‘consent of the governed’ is largely illusory,” NEPA is not “merely a procedural formality” but one of the few ways residents can actually share their opinion and give or revoke consent for U.S. military actions in their backyard, attorneys for community organizations in the territories wrote in an amicus brief.
What we’re watching: During Supreme Court oral arguments last week, several justices raised concern that siding with the Air Force could eliminate future opportunities for Prutehi Guåhan and similar groups to oppose hazardous waste disposal plans, per the Times.
- Others were equally worried that ruling against the Air Force could flood courts with litigation before other “final” agency actions take place.
SCOTUS will release a decision by the end of its term in June.
Our take: The court’s decisions in the Insular Cases, which decided what rights territorial residents may have, are a large reason why so many Pacific Islanders are politically disenfranchised.
- While the bench likely won’t touch the territories’ political status, a victory for Prutehi Guåhan could signal willingness to reopen the conversation around those previous rulings, which conservative justice Neil Gorsuch wrote in 2022 “rest … on racial stereotypes” and “deserve no place in our law.”
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