Bearing the Brunt: Guam and the Elusive Promise of Environmental Justice

Environmental justice is a broad concept with many definitions, but at its core is based on the recognition that certain communities, like Indigenous communities, communities of color, and low-income communities historically have disproportionately borne the brunt of adverse environmental impacts. In an attempt to address environmental injustice, President Clinton established Executive Order 12898, which requires federal agencies to make achieving environmental justice a part of their missions “by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of [their] programs, policies, and activities on minority populations and low-income populations.” Exec. Order No. 12898, 59 Fed. Reg. 7629 (Fed. 16, 1994).

This mandate has been openly ignored by federal agencies operating in Guam, where military priorities consistently override environmental protections and Indigenous rights. This article primarily examines the Department of Defense’s (DOD) 2006 military realignment in the Pacific, analyzing how environmental justice requirements fare when confronted with national defense interests. Through a detailed examination of DOD’s environmental impact statements and related litigation, supplemented by additional examples of environmental degradation—from toxic dumps to whale strandings, from contaminated fishing grounds to ancient cultural sites—Guam’s experience demonstrates how federal environmental laws can be systematically weakened or circumvented when they conflict with military objectives.

DOD’s Pacific Pivot: New Plans, Familiar Patterns

In 2006, the DOD and the government of Japan announced a “roadmap” to relocate the Marine Corps Air Station Futenma in Okinawa. The announcement came ten years after U.S. service members violently raped a twelve-year-old Okinawan schoolgirl sparking outrage and protests Okinawa and a call to remove the Marines from the island. Yuri Kageyama, Why Okinawa’s Governor Says US Marine Air Base Should Move after Referendum Rejection Associated Press, Mar. 4, 2019. Under the 2006 Roadmap, the DOD would close Futenma and move Marines to Henoko, another area of Okinawa; Darwin, Australia; and Guam.

This expansion into Guam, part of the broader U.S. “Pacific Pivot” strategy, would profoundly impact an island already shaped by centuries of colonial control. Guam is part of the Marianas, an island chain located in the Pacific. A seven-hour flight from Honolulu and about a four-hour flight from Tokyo, Manila, and Seoul, Guam occupies a unique position in the Pacific. Chamorros, the Indigenous people of the Marianas, established their civilization here over three thousand years ago. Magellan “discovered” Guam in 1521, leading to Spain’s formal claim of the Marianas decades later, and the islands would remain under Spanish control for centuries until the turn of the twentieth century.

The United States acquired Guam in 1898 as one of the spoils of the Spanish American War. Since then, Guam has been an unincorporated territory. The U.S. Navy controlled Guam for 42 years, which was interrupted by the Japanese occupation of Guam during World War II. The Department of Interior then governed Guam for over 22 years until Guam elected its first governor in 1970. Throughout these political transitions, the Chamorro people have maintained their presence on the island, today comprising over 40% of the population of Guam.

Despite the formation of a civilian government, the U.S. federal government still wields considerable political and economic influence on Guam today. The U.S. military presence, centered at Andersen Air Force Base in the north and Naval Base Guam in the south, dominates the island’s economy alongside tourism.

When DOD proposed adding a new Marine Corps base as part of the 2006 Roadmap, it issued a Draft Environmental Impact Statement (EIS) in November 2009. I have reviewed thousands of pages of the National Environmental Policy Act (NEPA) analysis connected to the buildup in Guam and across Micronesia in private practice and as the attorney general of Guam from 2019 to 2023, but I always return to one sentence when I summarize the federal government’s approach, or more specifically the DOD’s approach, to environmental justice in the Marianas: “The impact would not be considered disproportional as all of Tinian is considered a minority and low-income area.” CNMI Joint Military Training Draft Environmental Impact Statement, ch. 4 at 4–450.

The Guam Buildup and the Pågat Proposal

A few days after the Draft EIS was released I sent a short email to a friend: “You finished reading it yet?” Since the announced move of Marines from Okinawa to Guam, many people were expecting the release of the Draft EIS, but most did not anticipate that it would be roughly 8,000 pages long or that our community would only have 90 days to review and submit comments on it.

To say that our community was unprepared and overwhelmed by the sheer amount of information would be an understatement. Most were unfamiliar with the NEPA process or requirements. Instead of hiring experts to assist in a technical review of the Draft EIS, our local government hired a consultant to prepare a compatibility sustainability study. Local government agencies who assisted in the preparation of the Draft EIS could not publicly comment on its contents or their work because they reportedly were required to sign non-disclosure agreements. This gap in resources and information forced community members to work together to analyze the Draft EIS, share reliable information with the public, and coordinate a response.

There was also a gap in legal help. There were no law firms in Guam actively practicing in the area of local or federal environmental law or willing to commit resources to review the Draft EIS. A small group of young Indigenous professionals with legal expertise took on the task of facilitating the community review and response. Four years out of law school, I was the most senior of our group. None of us had studied NEPA or the National Historic Preservation Act (NHPA). We relied heavily on a treatise on NEPA litigation from the University of Hawai’i Richardson School of Law library that the law student in our group borrowed and shipped to Guam for a few months (it was returned on time).

A review of the Draft EIS revealed that the projected impacts included an increase in population of up to 45%, or roughly 79,000 people, over a four-year period, the destruction of over 70 acres of coral reef, and a shortfall of water for the local community. As more and more information came out, concern started to mount. In particular, DOD’s proposal to construct a firing range complex over Pågat Village, an ancient Chamorro village and burial site, sparked widespread community opposition.

DOD’s proposal to construct a firing range complex atop an ancient Indigenous village site sparked widespread opposition, particularly given the federal government’s already substantial land holdings of nearly one-third of Guam’s territory as of 2009. In the Draft EIS, DOD dismissed all potential alternatives that would have located the firing range complex within existing federal lands, instead insisting on acquiring additional territory. In the Draft EIS, DOD presented two alternatives that both involved acquiring land at Pågat Village, with the only difference being the amount of private and local government territory to be taken. Both alternatives proposed building a live firing range complex at this culturally significant site.

As NEPA novices, our legal team decided that the most controversial part of the DOD’s proposal—constructing a firing range complex on an ancient Indigenous village site—presented the strongest argument for challenging the legal insufficiency of the Draft EIS. We crafted strategic comments on the Draft EIS to establish a robust legal foundation, preserving our arguments for potential future litigation. We also did our best to cobble together a complaint based on cases we could find anticipating that DOD would not back down. Fortunately for us, help was on the way.

The Guam Preservation Trust and the National Trust for Historic Preservation both were also deeply concerned about the impacts of Pågat Village, with the National Trust emphasizing its significance by naming it one of America’s eleven most endangered historic places. These groups were ultimately able to secure pro bono representation from a large law firm based in San Francisco with significant experience in NEPA litigation. Their legal team was instrumental in empowering our community throughout the NEPA process and NHPA consultation.

DOD’s Response

DOD attempted to address mounting opposition to the Pågat Village firing range complex by modifying its original proposal. While DOD promised to maintain public access to Pågat Village by keeping the main trail open, this concession created unacceptable safety risks: the trail would run directly alongside an area where stray bullets could land, while military personnel conducted live-fire exercises with .50 caliber machine guns from the bluffs above.

To address concerns about its land acquisition, DOD proposed a “net zero” plan, promising to return excess lands, i.e., lands that it had taken from Indigenous people that were no longer needed for military purposes. These proposals were part of what a retired general would describe as “sweeteners” meant to build pressure on local elected officials into agreeing to the firing range complex at Pågat and isolate groups opposing the plans. Email from David Bice to John Scorby and Joe Ludovici (Sept. 27, 2019, 10:33 AM) (on file with the author).

Despite widespread opposition to the firing range complex at Pågat Village, DOD issued its Final EIS in July 2010 and Record of Decision (ROD) in September 2010 with no significant changes from the Draft EIS. Following the release of the ROD, the Guam Preservation Trust, National Trust for Historic Preservation, and other individuals and groups sued DOD in the U.S. District Court for the District of Hawai’i. Guam Preservation Trust v. Gregory, 1:10-CV-00677 (D. Haw.) The lawsuit alleged that DOD violated NEPA by not adequately evaluating locations other than Pågat Village for its proposed firing range complex. Id. This lawsuit marked the first legal challenge to DOD’s actions in Guam alleging violations of federal environmental laws.

During the litigation, DOD informed the court that it could have used a different method for determining the surface danger zone, potentially reducing the land area needed for the firing range. This revelation opened the possibility of considering sites other than Pågat Village as viable alternatives. A little less than a year after the lawsuit was filed, DOD notified the court of its intent to prepare a Supplemental EIS (SEIS). This SEIS, released in September of 2015, would include a comprehensive re-evaluation of potential locations for the firing range complex.

In a striking reversal, DOD’s new preferred alternative in the SEIS proposed constructing the firing range complex at the Ritidian Wildlife Refuge—a location DOD had previously rejected specifically because of potential environmental impacts.

The Ritidian Wildlife Refuge itself is a subject of controversy. While the federal government currently controls the area, original landowners continue to assert a right to reclaim their ancestral property. Despite these ongoing disputes, the Refuge plays a crucial ecological role. It serves as a sanctuary for the last remaining populations of several endangered and endemic native tree and bird species that can only be found in Guam and Rota.

The ecological significance of the Refuge is further emphasized by Guam’s tragic environmental history. The island’s bird population was decimated following the inadvertent introduction of the brown tree snake by a DOD ship. In response, several hundred acres of the Refuge have been designated critical habitat under the Endangered Species Act (ESA), with the aim of potentially reintroducing these now rare bird species.

Anticipating legal challenges over impacts to the Refuge, DOD chose not to seek an alternative location but instead took preemptive action to modify the Refuge’s operational framework—effectively rewriting the rules governing this protected area.

DOD’s strategy mirrored its previous response to environmental litigation. After Earthjustice successfully challenged DOD’s bombing exercises on Farallon de Medinilla for violating the Migratory Bird Treaty Act (see Ctr. for Biological Diversity v. Pirie, 201 F. Supp. 2d 113 (D.D.C. 2002)), DOD again sought to circumvent environmental protections through legislation. Working through Guam’s congressional delegate, DOD secured a provision in the National Defense Authorization Act (NDAA) that authorized an agreement with the Secretary of Interior to establish a surface danger zone over the Refuge—effectively bypassing standard National Wildlife Refuge System protections. Carl Levin and Howard P. “Buck” McKeon, National Defense Authorization Act for Fiscal Year 2015, 113 P.L. 291, § 2822, 128 Stat. 3292 (2014).

Environmental experts immediately recognized the provision’s devastating implications. Jim Kirth, chief of the National Wildlife Refuge System testified against the provision stating that it would “substantially and materially interfere with the Refuge’s ability to meet its purposes and mission.” See Testimony of Jim Kurth, Chief, Nat’l Wildlife Refuge Sys., Legislative Hearing on H.R. 4402, Guam Military Training and Readiness Act of 2014, April 29, 2014. It required no technical or scientific expertise to recognize that operation of machine guns would likely not be compatible with the recovery of endangered native birds, bats, and trees. Notwithstanding, the provision was passed into law and DOD proceeded with its plan.

DOD’s Broader Environmental Impact in Guam and Beyond

The transformation of critical wildlife habitat into a firing range complex illustrates a recurring theme in Guam: DOD’s systematic prioritization of military operations over federal environmental protections.

In 2007, the first documented beaked whale stranding on Guam marked the beginning of an alarming trend. Between 2007 and 2019, seven additional stranding events occurred, involving ten to eleven beaked whales. These unprecedented strandings coincided with military exercises in the Marianas Islands Testing and Training Area (MITT), a vast training range spanning over 980,000 nautical miles. The correlation between these military activities and the series of whale strandings raised serious concerns about the impact of naval sonar and other military operations on marine life in the area.

The DOD denied any correlation between its training and these incidents and refrained from confirming its use of sonar in the area. In one instance, DOD only acknowledged its use of this technology around the time of the stranding after a diver provided video footage that captured use of sonar. Following each incident, the bodies of the stranded whales were sent to Hawai’i for necropsy and further studies. However, for years, very little information about the results of these studies was made publicly available.

In 2020, a study published by the National Oceanic Atmospheric Administration (NOAA) and academic scientists examined these strandings and the potential causes. See Anne E. Simonis et al., Co-occurrence of beaked whale strandings and naval sonar in the Mariana Islands, Western Pacific, 287 Proceedings of the Royal Society B: Biological Sciences 1921 (2020). The researchers found that over half of the eight documented strandings occurred within six days of naval exercises, with only a 1% chance that three of the strandings were coincidental. Id. This study was the first to associate individual beaked whale strandings with large-scale naval anti-submarine warfare training exercises, specifically sonar usage. Despite these findings, NOAA later authorized the DOD to continue its activities without any mitigation measures, stating that the “best available science” did not indicate that the Navy’s sonar use would result in whale mortality. See Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the U.S. Navy Training and Testing Activities in the Mariana Islands Training and Testing (MITT) Study Area, 50 C.F.R. pt. 218 (codified July 2020).

Military operations in Guam have degraded both marine and terrestrial environments, as illustrated by the environmental disaster at Ordot Dump. Originally established in the 1940s, this unlined and uncapped waste site served as both the island’s only public landfill and a DOD disposal ground for hazardous materials. For decades, DOD dumped toxic chemicals, including DDT and Agent Orange, alongside civilian waste. Without proper containment, these dangerous substances leached into a nearby river and ultimately contaminated the surrounding ocean.

Though the Environmental Protection Agency (EPA) initially identified DOD as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), it ultimately chose to pursue enforcement through the Clean Water Act (CWA). This critical procedural decision effectively shielded DOD from financial responsibility for cleaning up the toxic waste it had dumped at Ordot for decades.

Adding insult to injury, the EPA would eventually sue the government of Guam under the CWA and obtain a Consent Decree that placed a significant financial strain on the local government. After the government of Guam was unable to meet the schedule, the federal court appointed a receiver that ordered the government to take out a loan for $202 million to pay for closing the Ordot Dump and opening a new landfill.

In 2017, Guam sued to recover DOD’s share of the Ordot Dump cleanup costs, asserting that DOD was liable under CERCLA for its decades of hazardous waste disposal. This litigation culminated in a unanimous Supreme Court victory for Guam, which established that a non-CERCLA settlement does not trigger CERCLA’s three-year statute of limitations for contribution claims. Guam v. United States, 593 U.S. 310 (2021). Following this landmark decision, in 2023 the federal government agreed to pay $48.9 million toward the cleanup costs. While this historic settlement represented only a fraction of Guam’s total remediation expenses, it carried profound symbolic significance: for the first time, DOD was held financially accountable for its role in contaminating Ordot.

By choosing not to pursue DOD under CERCLA, EPA’s decision postponed vital cleanup, forced Guam’s taxpayers to shoulder massive remediation costs, and required years of litigation to finally secure DOD’s contribution in 2023.

Around the same time that EPA was suing the government of Guam for violations of the CWA, another environmental crisis was unfolding, further exemplifying the pervasive nature of these issues. Environmental testing in the early 2000s exposed staggering contamination at Cocos Lagoon in southern Guam, where a U.S. Coast Guard station had operated between 1944 and 1963. Scientists detected polychlorinated biphenyls (PCBs) at concentrations 4,900 times above federal safety limits. S. Ian Hartwell et al., An Analysis of Chemical Contaminants in Sediments and Fish from Cocos Lagoon, Guam (Dec. 2017). Testing in 2005 revealed PCB levels in local fish that exceeded safe consumption thresholds. Since then, the federal government has advised residents not to eat the fish from the lagoon. For many residents, the news was met with disbelief and confusion. The revelation that the meals over which families had said grace and shared for decades were contaminated with dangerous levels of toxins was not just a health concern, but a cultural and emotional shock.

Annually, federal authorities convene an open house to present their findings on this persistent contamination. Year after year, they confirm what has become a grim constant: the fish in the area remain unsafe for human consumption due to high levels of toxins.

Unfortunately, but unsurprisingly, Guam is not the only island where the aura of national defense has overshadowed the promise of environmental justice. Across the Pacific, Indigenous communities grapple with both the toxic legacy of World War II and accelerating military expansion. While unresolved contamination issues from WWII persist in Palau and the Federated States of Micronesia, DOD’s footprint continues to grow under the banner of “Joint Region Micronesia.”

In Palau, DOD’s plans for a Tactical Multi-Mission Over-the-Horizon Radar (TACMOR) system exemplify this continued disregard for environmental protection and local consultation. The project has already sparked controversy: contractors allegedly excavated approximately 50,000 square meters in Angaur without permits or environmental analysis, leading to litigation in Salii v. U.S.A, CV23-0826 (Supreme Court of Palau, July 31, 2023). Though this case was dismissed, opposition to TACMOR continues to mount. In Ngaraard, another proposed TACMOR site, the governor has raised urgent concerns about threats to endangered dugongs and other environmental impacts. Ngaraard Leadership Doubles Down on Concerns Over TACMOR Project, Calls for Permit Reversal and Independent Environmental Review, Island Times (Oct. 4, 2024).

This pattern of minimal environmental oversight and limited community engagement continues in Yap, where DOD plans to expand the airfield to accommodate larger aircraft. This expansion would establish another “divert” site—joining Peleliu (Palau) and Tinian (NMI)—for use when Andersen Air Force Base on Guam becomes inaccessible due to storms or conflict. Despite years of planning, local communities and leaders remain largely uninformed about the project’s full scope and impact.

Across Micronesia, Indigenous communities that once endured the ravages of World War II now face a new threat: the systematic subordination of environmental protection to military expansion, with Guam’s contaminated waters and toxic dumps foreshadowing potential regional consequences.

The Pacific Playbook

The environmental challenges in Guam—from toxic dumps to whale strandings—starkly illustrate the enduring impact of military activities on the island’s ecosystems and communities. Despite scientific evidence and local concerns, federal responses regularly prioritize national security over environmental and health needs. This highlights a persistent issue: national defense interests often seem to protect the DOD from accountability for environmental harm and exempt DOD from truly considering the disproportionate impacts that its actions have on Indigenous communities. This issue is exacerbated when federal agencies charged with protecting the environment have appeared reluctant to impose or enforce regulations on the DOD. The promise of environmental justice has not shifted the underlying power dynamic that has resulted in Indigenous and low-income communities disproportionately bearing the brunt of adverse environmental impacts. Might still makes right.

If there is cause to be hopeful it can be found in the fact that Indigenous communities in the Pacific have shared their knowledge and experiences to empower each other. This networking has resulted in grassroots organizing, political pressure, and litigation that probably would not have otherwise been possible. Building capacity is the most proven way of empowering communities to protect environmental and cultural resources and influence the DOD’s plans.