Republic of the Marshall Islands Changed Circumstances Petition to Congress
Congressional research reportAug 30, 2005
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Republic of the Marshall Islands Changed
Circumstances Petition to Congress
Updated August 30, 2005
(name redacted) (Coordinator)
Foreign Affairs, Defense, and Trade Division
Kenneth Thomas and (name redacted)
American Law Division, Domestic Social Policy Division
David Bearden, (name redacted), and (name redacted)
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress
Republic of the Marshall Islands Changed
Circumstances Petition to Congress
Summary
In September 2000, the Republic of the Marshall Islands (RMI) government
submitted to the United States Congress a Changed Circumstances Petition related
to U.S. nuclear testing on the Marshall Islands atolls of Bikini and Enewetak during
the 1940s and 1950s. The Petition requests additional compensation for personal
injuries and property damages and restoration costs, medical care programs, health
services infrastructure and training, and radiological monitoring. According to
various estimates, between 1954 and 2004, the United States spent over $500 million
on nuclear test compensation and related assistance in the Marshall Islands.
The Petition bases its claims for compensation upon “changed circumstances”
pursuant to Section 177 of the Compact of Free Association. The Compact of Free
Association, enacted in 1986, governs the economic and strategic relationships
between the United States and the RMI. The Section 177 Agreement granted $150
million as part of a “full and final settlement” of legal claims against the U.S.
government, and provided for possible additional compensation, if loss or damages
to persons or property arose or were discovered that could not reasonably have been
identified as of the effective date of the agreement, and if such injuries rendered the
provisions of the Compact “manifestly inadequate.” The Petition argues that “new
and additional” information since the enactment of the Compact — such as a wider
extent of radioactive fallout than previously known or disclosed and more recent
radiation protection standards — constitute “changed circumstances.”
In November 2004, the U.S. Department of State released a report evaluating
the legal and scientific basis of the Petition. The report concludes that “the Marshall
Islands’ request does not qualify as ‘changed circumstances’ within the meaning of
Article IX of the nuclear claims settlement agreement enacted under Title II, Section
177 of the Compact of Free Association Act of 1986.” Consequently, according to
the Administration, there is no legal basis for considering additional payments. On
May 25, 2005, the House Committee on Resources and the Subcommittee on Asia
and the Pacific of the House Committee on International Relations held a joint
hearing on the Petition. On July 19, 2005, the Senate Committee on Energy and
Natural Resources held an oversight hearing on the effects of the U.S. nuclear testing
program on the Marshall Islands.
This report summarizes U.S. nuclear testing on the Marshall Islands, U.S.
compensation efforts to date, relevant provisions in the Compact of Free Association,
and the Changed Circumstances Petition. It analyzes several issues related to the
personal injury, health care, and property damages claims in the Petition. These
issues include estimated occurrences of radiation-related illnesses in the Marshall
Islands; the methodology for determining the value of “lost use” of damaged
properties; the appropriate standard of risk (annual dose limit) for determining
cleanup levels; and the extent of radioactive fallout. This report also discusses
possible legal options for the RMI in pursuing nuclear test damages claims and
identifies policy options for the 109th Congress.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Congressional Policy Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Summary of Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Test-Related Cancer Estimates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
“Loss of Use” Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Cleanup Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Contaminated Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Litigation Involving Inhabitants of the RMI . . . . . . . . . . . . . . . . . . . . . 6
History of U.S. Nuclear Testing in the Marshall Islands . . . . . . . . . . . . . . . . . . . . 6
U.S. Compensation and Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Health and Environmental Programs in the RMI . . . . . . . . . . . . . . . . . . . . . 8
Additional Programs for the Nuclear Affected Atolls . . . . . . . . . . . . . . 9
Radiation Injury Compensation Programs — RECA and the Nuclear Claims
Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The U.S. RECA Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Compensation of Downwinders and On-Site Participants . . . . . . . . . . 11
Program Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
The Nuclear Claims Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
National Research Council Report on RECA . . . . . . . . . . . . . . . . . . . . . . . 12
The Changed Circumstances Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Petition Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
“Changed Circumstances” Basis of Petition and Supporting Arguments . . 15
Declassified Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
New and Updated Scientific Findings . . . . . . . . . . . . . . . . . . . . . . . . . 15
Compact Funding Proved to Be Manifestly Inadequate . . . . . . . . . . . 16
The Administration Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Analysis and Discussion of Selected Scientific, Methodological, Policy, and
Legal Bases of the Changed Circumstances Petition . . . . . . . . . . . . . . . . . . 18
Cancer Estimates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Loss of Use Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
The NCT Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Description of Past Loss-of-Use Methodology . . . . . . . . . . . . . . . . . . 20
Pre-Judgment Interest Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Description of Future Loss-of-Use Methodology . . . . . . . . . . . . . . . . 22
Assessment of the Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Overestimates of Past Lost Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Overestimates of Future Lost Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Environmental Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Tribunal Decision on Additional Compensation . . . . . . . . . . . . . . . . . 27
IAEA Policy on Environmental Cleanup . . . . . . . . . . . . . . . . . . . . . . . 27
Cleanup Standard Proposed by the RMI . . . . . . . . . . . . . . . . . . . . . . . 29
Applicability of Standards to Marshall Islands Cleanup . . . . . . . . . . . 30
Bush Administration Viewpoint on Marshall Islands Cleanup
Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Disagreement Regarding Areas of Contamination . . . . . . . . . . . . . . . 32
Legal Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Litigation Involving Inhabitants of the RMI . . . . . . . . . . . . . . . . . . . . 34
List of Tables
Table 1. The NCT’s Estimated Damages for Loss-of-Use, by Component . . . . 21
Appendix A. List of Major Legislation Authorizing or Appropriating
Compensation for Nuclear Testing, 1964-2004 . . . . . . . . . . . . . . . . . . . . . . 39
Appendix B. Comparison of Radiation Compensation Amounts . . . . . . . . . . . . 42
Appendix C. Payments from Earnings and Principal of Nuclear Claims Fund
(1986-2004) and Current Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Appendix D. Marshall Islands Time Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Appendix E. Map of Marshall Islands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Republic of the Marshall Islands Changed
Circumstances Petition to Congress
Introduction
Background
The 109th Congress is considering the Changed Circumstances Petition,
submitted to the United States Congress by the Republic of the Marshall Islands
(RMI), for further compensation for damages resulting from U.S. nuclear testing on
Marshall Islands atolls during the 1940s and 1950s. Key oversight committees are
the Senate Energy and Natural Resources Committee, the House Resources
Committee, and the House International Relations Committee. On May 25, 2005, the
House Committee on Resources and the Subcommittee on Asia and the Pacific of the
House Committee on International Relations held a joint hearing on the Changed
Circumstances Petition. On July 19, 2005, the Senate Committee on Energy and
Natural Resources held an oversight hearing on the effects of the U.S. nuclear testing
program on the Marshall Islands.
According to U.S. government estimates, the United States has spent between
$520 million and $550 million in the Marshall Islands on nuclear test-related
compensation and assistance, including health care, medical surveillance and
environmental monitoring, cleanup of contaminated sites, and resettlement efforts.
About one-half of this assistance was provided through congressional ex gratia
payments.1 The Compact of Free Association, which established the Marshall Islands
as a “freely associated state,”2 extended $150 million for nuclear test-related
compensation as part of a “full and final settlement”3 of claims. Under Section 177
(Article IX) of the Compact, additional compensation may be requested by the RMI,
if loss or damages to persons or property arose or were discovered that could not
reasonably have been identified as of the effective date of the agreement and if such
injuries rendered the provisions of the Compact “manifestly inadequate.” In
September 2000, the Marshall Islands government submitted to the United States
Congress a Changed Circumstances Petition requesting additional compensation
1
“ex gratia” — not compelled by legal right or formal agreement.
2
The Compact was negotiated and agreed to by the governments of the United States and
the Marshall Islands and approved by plebiscite in the Marshall Islands and by the U.S.
Congress in 1985. The Marshall Islands people thus chose the status of a freely associated
state — a sovereign nation with economic and security ties to the United States.
3
The Agreement for the Implementation of Section 177 of the Compact of Free Association
states that the fund of $150 million was created “to provide, in perpetuity, a means to
address past, present and future consequences of the Nuclear Testing Program.”
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pursuant to the Compact. The Petition requests compensation for personal injury
awards, property damages (loss of use, restoration costs, and hardships suffered),
health services infrastructure, a health care program, radiation exposure monitoring,
and other programs.
The Petition justifies its claims of “changed circumstances” largely upon “new
and additional” information since the Compact’s enactment — declassified
Department of Energy records in the early 1990s that indicated a wider extent of
radioactive fallout than previously known or disclosed and scientific findings that
reduced the levels at which exposure to radiation was deemed safe. As a result of,
and in addition to, the above findings, the Petition and accompanying materials argue
that higher than expected health consequences and costs of health care and
environmental cleanup, as well as lower than expected investment returns from the
Nuclear Claims Fund, constitute changed circumstances. Furthermore, according to
the Petition’s supporting arguments, the Nuclear Claims Fund constituted a
provisional, “political settlement” rather than a final determination based upon a
conclusive scientific assessment of costs. The Petition contends that the U.S.
Congress agreed to retain its authority, through legislation to approve the Compact
(P.L. 99-239), to appropriate additional compensation should the need arise.4
Furthermore, legal counsel for the four nuclear-affected atolls maintain that U.S.
courts left open the possibility that RMI plaintiffs could also return to the courts if
they did not receive adequate compensation from Compact provisions.
The Petition’s monetary requests include unpaid Nuclear Claims Tribunal
(NCT) personal injury awards of $15.7 million; unpaid NCT property damages
awards to Enewetak Atoll and Bikini Atoll totaling $949 million; $50 million for
medical services infrastructure; and $45 million annually for 50 years for a health
care program for those exposed to radiation.
In November 2004, the U.S. Department of State released a report compiled by
an interagency group (Departments of State, Energy, and Defense) evaluating the
legal and scientific bases of the Petition.5 The report concludes that “the Marshall
Islands’ request does not qualify as ‘changed circumstances’ within the meaning of
Article IX of the nuclear claims settlement agreement enacted under Title II, Section
177 of the Compact of Free Association Act of 1985.” The report also disputes some
key scientific claims of the Petition regarding the geographical extent of radioactive
fallout, radiation dose estimates, and the applicability of U.S. standards to conditions
in the RMI. Consequently, according to the Bush Administration, there is no legal
basis for considering additional payments.
The Administration report further suggests that the radiological health care
needs of the RMI, as requested in the Petition, are addressed in part through health
4
Howard L. Hills, Attorney at Law, “Historical Information Regarding the Marshall Islands
Nuclear Claims Settlement,” Testimony before the House Committee on Resources, May
11, 1999.
5
U.S. Department of State, Report Evaluating the Request of the Government of the
Republic of the Marshall Islands Presented to the Congress of the United States of America,
November 2004.
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sector grants of approximately $16 million per year as provided by the amendments
to the Compact of Free Association.6 RMI officials point out, however, that the
Petition’s requests were not a part of the bilateral negotiations to amend the Compact,
and that the Compact, as amended, was not intended to take account of nuclear test
compensation claims.7 They add that a large proportion of the expenditures noted in
the Administration report supported U.S. government research into the effects of
radiation upon human beings and the environment and benefitted U.S. interests, but
did not directly benefit communities affected by the nuclear testing.
This report analyzes and discusses several issues related to key personal injury,
health care, and property damages claims in the Petition. These include expected
radiation-related illnesses in the Marshall Islands; the methodology for determining
the value of “lost use” of damaged properties; the appropriate standard of risk (annual
dose limit) for determining cleanup levels; and the extent of radioactive fallout.
Finally, this report discusses possible legal options for the RMI in pursuing nuclear
damages claims.
Congressional Policy Options
Congress has several policy options regarding the Marshall Islands’ request for
additional compensation for nuclear damages. These include:
6
!
Grant or reject the Changed Circumstances Petition’s requests, in
whole or in part, on the basis of the changed circumstances rationale.
!
Continue congressional ad hoc, ex gratia payments through
Department of the Interior appropriations measures.
!
Enact legislation that would provide for a “full and final settlement”
of claims.
!
Allow the federal courts, through an amendment to the Compact of
Free Association, to review the judgments of the Nuclear Claims
Tribunal and potentially to order the United States to pay these
awards, in whole or in part.8
Compact of Free Association Amendments Act of 2003 (P.L. 108-188).
7
“Joint Statement: Third Session of Bilateral Negotiations on the Compact of Free
Association,” December 12, 2001; Albert Short, Compact Negotiator, United States
Department of State, letter to Gerald Zackios, Minister of Foreign Affairs and Trade,
Republic of the Marshall Islands, March 24, 2002.
8
This proposal has been suggested by leaders of the RMI and its four affected atolls. See
Statement of the Peoples of Bikini, Enewetak, Rongelap and Utirik before the Senate Energy
and Natural Resources Committee, July 15, 2003.
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Summary of Analysis
The following sections summarize selected key issues related to the Changed
Circumstances Petition. These issues are analyzed in depth in subsequent sections
of the report. The Petition’s personal injury claims and health care requests are
modeled after U.S. programs for compensating radiation-exposed individuals, and
based upon scientific studies establishing the areas of the Marshall Islands in which
residents likely have been exposed to dangerous levels of radioactive contamination.
A National Cancer Institute (NCI) study, discussed below, provides support for the
need for compensation. However, as noted below, there is some dispute regarding
the portion of the RMI population that has been exposed to radiation from the nuclear
weapons tests.
The Petition’s request for compensation to conduct further environmental
restoration is based on a U.S. Environmental Protection Agency (EPA) cleanup
standard, and the RMI assertion that the contamination is more widespread than
previous surveys had found. The issue of whether the EPA’s standard should apply
to the cleanup of the Marshall Islands, as well as disagreement over the extent of
contamination, are summarized here and examined later in the report. A significant
amount of the property claim in the Petition is based on the claimants’ “loss of use”
calculations. This report provides an assessment of the methodology employed by
the claimants in calculating “loss of use.”
Test-Related Cancer Estimates. The NCI in September 2004 estimated
that nuclear testing would result in about 530 additional lifetime cancers among the
14,000 Marshall Islands residents exposed to the testing. NCI also estimated that
about 5,600 cancers would have occurred in that population without the fallout
exposure. Because the cancers caused by testing cannot be distinguished from
cancers that would have occurred anyway, all victims of certain types of cancers are
being compensated. NCI estimates that about half the cancers expected in the
exposed population have yet to be diagnosed, so additional compensation claims are
likely.
“Loss of Use” Methodology. In general, the methodology used by the NCT
to estimate the value of the lost use of the claimants’ property is considered to be
reasonable and appropriate. For several reasons, however, the specific application
of the methodology — much of the critical data used, many of the assumptions, and
certain statistical procedures applied (i.e., the sampling technique and the regression
model) — result in past and future loss-of-use estimates that appear to be overstated,
which leads to possibly excessive total damages claimed and awarded by the NCT.
The main problem is with the use of inflated average rents per acre, which are
estimated by applying an exponential regression model to unrepresentative sample
data that reflect RMI government-influenced rents, rather than competitive, freemarket rents. This can lead to an overestimate of not only past loss-of-use, but
because estimated rents is a critical variable used as an input into future-loss-of-use
calculations, a possible overestimate of future loss-of-use as well.
The methodology also 1) assumes that more land is lost to use, and for longer
periods than is actually the case, 2) undervalues the rentals on alternative atoll
habitation, and 3) assumes that recipients of rental proceeds, as consumers and
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savers, would have saved 100% of the rental proceeds. Each of these assumptions
can lead to an overestimate of past loss of use.
Cleanup Standards. The RMI argues that a more recent U.S. radiation
protection standard warrants further cleanup in the Marshall Islands. However, the
Bush Administration contends that the standard applied to past cleanup efforts there
remains unchanged and that levels of contamination remain safe according to this
standard. For cleanup purposes, the RMI has adopted the standard established by the
EPA for the cleanup of radioactive contamination at Superfund sites in the United
States. This standard limits annual exposure to 15 millirems of radiation above
natural background levels from all sources. The Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA, P.L. 96-510, reauthorized by
P.L. 99-499) established the Superfund program to clean up hazardous waste sites in
the United States to a degree that would be safe for the intended land use of the site.
EPA issued its 15 millirem standard in 1997 as a non-binding guideline for the
cleanup of Superfund sites, 11 years after the 1986 Compact with the Marshall
Islands. This 15 millirem standard is more stringent and more recent than the 100
millirem standard established by the U.S. Department of Energy (DOE) that was used
to determine the degree of cleanup in past efforts in the Marshall Islands.
The RMI argues that the 15 millirem standard is the same level of public
protection that is provided in the United States and that it therefore should be applied
to the cleanup of the Marshall Islands. However, the 15 millirem standard is not an
enforceable federal regulation. As noted above, it is an EPA recommended guideline
that is applied on a case-by-case basis, depending on the feasibility of attaining it at
a particular site. Although there is some precedent for applying the 15 millirem
standard to certain nuclear weapons sites in the United States, such sites generally are
cleaned up to DOE’s less stringent standard of 100 millirems, which has been used
in the Marshall Islands for past cleanup, as noted above. Consequently, the RMI’s
claim that the 15 millirem standard would apply to the cleanup of the Marshall
Islands if it were done in the United States today is not necessarily the case. The
Bush Administration advocates the continued use of DOE’s 100 millirem standard
and argues that further cleanup is not necessary, citing medical tests indicating that
doses of radiation among the population are already below this amount.
Contaminated Areas. In addition to the issue of whether a more recent
radiation protection standard warrants further cleanup, there is disagreement
regarding the extent of contamination. There have been numerous surveys of
radioactive contamination in the Marshall Islands since nuclear weapons tests ceased.
Residents of the islands have expressed longstanding concern as to whether these
surveys have identified all contaminated areas. The most exhaustive survey of
contamination was performed in 1994. The survey found that the greatest
contamination was in the northernmost islands not inhabited at that time, and that
the level of radioactivity in occupied areas was safe. The RMI has disagreed with
these findings and claims that the extent of contamination and health risks were
understated. The Bush Administration supports the findings of the 1994 survey and
argues that further cleanup is not warranted to protect the residential population.
However, if some of the more contaminated northern islands are to be resettled or
used for agricultural purposes, further cleanup could be necessary to prevent the risk
of exposure, depending on the concentration of radioactivity deemed safe.
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Litigation Involving Inhabitants of the RMI. In the early 1980s, fourteen
different groups of litigants representing approximately 5,000 inhabitants of the
Marshall Islands brought cases in the United States Court of Claims against the
United States to recover damages said to result from nuclear weapons testing. The
litigants were from three different groups: inhabitants of the Bikini Atoll, inhabitants
of the Enewetak Atoll, and inhabitants of atolls and islands that were not used as
atomic test sites. The court made separate preliminary findings regarding each of
these. In the case involving Bikini Atoll inhabitants, the court found that a claim of
a takings in violation of the Fifth Amendment and of breach of an implied-in-fact
contract survived a motion to dismiss based, among other things, on a statute of
limitations bar. In the case involving the inhabitants of the Enewetak Atoll, it was
held that a breach of contract claim survived a motion to dismiss, as did a takings
claim by the plaintiffs who were not on the Bikini or Enewetak islands.
Subsequently, the Compact of Free Association was implemented between the United
States and RMI, and the Nuclear Claims Tribunal was established under Section 177
of that agreement. The Court of Claims then concluded that it was premature to
address the question of whether this alternative procedure was adequate to provide
compensation for the litigants, and so it dismissed the cases. The RMI argues that
the court decision left open the possibility of further compensation — beyond that
provided by the Compact.
History of U.S. Nuclear Testing in the Marshall
Islands9
From 1946 to 1958, the United States conducted 67 atmospheric atomic and
thermonuclear weapons tests on the Marshall Islands atolls of Bikini and Enewetak.10
During that time, the Marshall Islands was a district of the United Nations Trust
Territory of the Pacific Islands administered by the United States. In 1954, “Castle
Bravo,” the second test of a hydrogen bomb, was detonated over Bikini atoll,
resulting in dangerous levels of radioactive fallout upon the populated atolls of
Rongelap and Utrik. See Appendix D.
Some experts argue that the nuclear tests, in addition to rendering the four atolls
of Bikini, Enewetak, Rongelap, and Utrik uninhabitable or dangerously irradiated,
caused high incidences of birth defects, miscarriage, and weakened immune systems
as well as high rates of thyroid, cervical, and breast cancer. In addition, they contend
that more than a dozen Marshall Islands atolls, rather than only four, were seriously
affected.11 Other analysts counter that the extent of radioactive fallout was limited
to the four northern atolls, and that RMI experts overestimate the link between
radiogenic illnesses in the Marshall Islands and the nuclear tests.
9
Prepared by (name redacted), Specialist in Asian Affairs.
10
11
Including one detonation 100 kilometers west of Bikini.
Gary Lee, “Postwar Pacific Fallout Wider than Thought,” Washington Post, February 24,
1994.
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In September 2000, the Marshall Islands government submitted to the United
States Congress a nuclear claims petition (Changed Circumstances Petition)
requesting, over a 50-year period, approximately $3.3 billion for personal injuries,
property damages, medical care and training, and radiological monitoring pursuant
to the Compact of Free Association. The Compact, promulgated in 1986 (P.L. 99239), terminated the United Nations Trust Territory status of the Marshall Islands and
Micronesia and provided a “full measure of self-government” for the peoples of the
two island states.12 In March 2002, the Senate Energy and Natural Resources
Committee and House Resources Committee requested that an interagency group
(U.S. Departments of State, Energy, and Defense) evaluate the petition and provide
Congress with an assessment of its merits following the enactment of the Compact
of Free Association Amendments Act (P.L. 108-188). In November 2004, the
Administration released its report evaluating the Petition.
U.S. Compensation and Assistance13
According to one estimate, since 1954, the United States has provided $531
million to the Marshall Islands for nuclear test damages, including compensation
payments, environmental cleanup and restoration, and resettlement programs. This
total also includes an estimated $138 million in Department of Energy (DOE)
radiological and health monitoring in the four affected atolls and medical programs
for the residents of Rongelap and Utrik through 2002.14 The Compact of Free
Association established a Nuclear Claims Fund of $150 million for personal injury
and property damages claims, health care, medical surveillance and radiological
monitoring, trust funds for the four atolls, and quarterly distributions to the peoples
of the four atolls for hardships suffered. By one estimate, since 1964, when major
U.S. compensation programs began, Congressional authorizations for nuclear test
damages total roughly $398 million in payments, not including funding for DOE
radiological and health programs. See Appendix A.
The investment returns on the Fund were expected to generate $270 million over
the 15 years of the first Compact term while the original $150 million would remain
as principal. Section 177 provided that the $270 million would be distributed as
12
The Compact of Free Association, which governs the economic, military, and strategic
relationships between the United States and the Freely Associated States (The Marshall
Islands, Micronesia, and Palau), provided economic assistance to the Marshall Islands
totaling $945 million between 1987 and 2001. See CRS Report RL31737, The Marshall
Islands and Micronesia: Amendments to the Compact of Free Association with the United
States, by (name redacted).
13
14
Prepared by (name redacted), Specialist in Asian Affairs.
A detailed accounting can be found in: U.S. Department of State, Report Evaluating the
Request of the Government of the Republic of the Marshall Islands Presented to the
Congress of the United States of America, “Appendix B: Estimates of U.S. Nuclear TestingRelated Assistance and Compensation.” See also Ralph Boyce, Deputy Assistant Secretary
of State, East Asia and Pacific Affairs, Testimony before the House Committee on
Resources, “The Status of Nuclear Claims, Relocation and Resettlement Efforts in the
Marshall Islands,” May 11, 1999.
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follows: $45.75 million to the Nuclear Claims Tribunal (NCT) for monetary awards;
$75 million to Bikini Atoll; $48.75 to Enewetak Atoll; $37.5 million to Rongelap
Atoll; $22.5 million to Utrik Atoll; $30 million for a health care program for the four
affected atolls; $3 million for medical surveillance and radiological monitoring; and
$7.5 million for NCT operating costs.
U.S. Health and Environmental Programs
in the RMI
Since the time of the nuclear testing, the United States government has operated
nuclear test-related health and environmental programs in the Marshall Islands.
Legislation authorizing such programs includes P.L. 95-134, P.L. 96-205, P.L. 99239 (the Compact of Free Association Act), and 108-188 (The Compact of Free
Association Amendments Act). In addition, the RMI health system is largely
supported by U.S. government grants as mandated by the Compact and amended
Compact (Compact II).15 Beginning in 1954, the Department of Energy’s
Brookhaven National Laboratory sent medical teams twice a year to monitor and treat
patients of Rongelap and Utrik atolls, who had received acute radiation exposure
from the Bravo test. Since 1998, the Pacific Health Research Institute (Honolulu) has
administered the Radiological Health Care Program year-round. The program has
two clinics and currently provides medical care to 119 enrolled persons from
Rongelap and Utrik. Those patients who cannot be adequately treated in the RMI are
referred to the Straub Clinic in Honolulu, Hawaii.16 In addition, since 1972, the
Lawrence Livermore National Laboratory has conducted environmental and
agricultural studies in order to assess radiological conditions at Bikini, Enewetak,
Rongelap, and Utrik.17 Since 1986, DOE has budgeted approximately $6.3 million
per year for the above health and environmental programs, with about $1.1 million
going to medical services.
The Four Atoll Health Care Program (the “177 Health Program”), as authorized
by P.L. 96-205, P.L. 99-239, and P.L. 108-188, has provided routine (non-radiogenic)
medical services for residents of the four nuclear-affected atolls and elsewhere who
may have been exposed to harmful, chronic levels of radiation (including those not
yet born at the time of the testing).18 According to the November 2004
15
Under Compact II, the United States spends over $7 million per year directly on health
care in the Marshall Islands, plus infrastructure grants that in part support medical services.
Fact Sheet, Bureau of East Asian and Pacific Affairs, U.S. Department of State, January 4,
2005.
16
Statement of Dr. Paul J. Seligman, Deputy Assistant Secretary for Health Studies, U.S.
Department of Energy, before the House Committee on Resources, “The Status of Nuclear
Claims, Relocation and Resettlement Efforts in the Marshall Islands,” May 11, 1999.
17
“U.S. Cuts Funds for Marshalls Environmental Monitoring,” BBC Monitoring Asia
Pacific, March 4, 2004.
18
The Four Atoll Health Program provides services to residents of the four atolls at the time
of the nuclear tests, and to recipients of NCT personal injury awards, who need only
(continued...)
CRS-9
Administration report, the 177 Health Program, managed since 1987 by Trinity
Health International, a Michigan-based nonprofit health care organization, employs
15 staff and serves nearly 13,500 enrollees. The Compact mandated $2 million per
year (1986-2003) for the health services. The funding proved to be inadequate,
however. Reasons cited include the unexpectedly large enrollment of individuals in
the program and the lack of an inflation adjustment in the funding. The services
received no appropriations for FY2004. The Consolidated Appropriations Act for
FY2005 (P.L. 108-447) provided $1 million for the program.19 The RMI government
has urged the U.S. government to continue both the DOE and 177 health programs.
Additional Programs for the Nuclear Affected Atolls. Section 103 of
the Compact Act (P.L. 99-239) authorized several resettlement, agricultural, and food
programs. Since 1979, the Department of the Interior has provided for the revegetation of portions of Enewetak atoll with crops such as coconut, pandanus,
breadfruit, taro, lime, and bananas. P.L. 99-239 authorized the continuation of the
Enewetak Food and Agriculture Program, which was funded at an average annual
amount of approximately $1.2 million between 1986 and 2003. The Compact of Free
Association Amendments Act of 2003 (P.L. 108-188) authorized $1.3 million per
year for the program through 2023. P.L. 99-239 and amending legislation authorized
the shipment of U.S. Department of Agriculture (USDA) supplemental food
commodities to the four affected atolls. The Special Assistance Food Program, reauthorized by P.L. 108-188 and costing about $600,000 annually, continues on a
discretionary basis under USDA appropriations measures, most recently the
Consolidated Appropriations Act for FY2005 (P.L. 108-447).
Radiation Injury Compensation Programs — RECA
and the Nuclear Claims Tribunal
The Compact of Free Association, Section 177, established a Nuclear Claims
Tribunal to adjudicate claims related to the nuclear testing program and provided
$45.75 million for payment of awards over a period of 15 years. The Tribunal’s
system of personal injury compensation, implemented in 1991, is based upon two
U.S. statutes, the Radiation-Exposed Veterans Compensation Act of 1988 (P.L. 100321) and the Radiation Exposure Compensation Act (P.L. 101-426), which provides
for not only victims who were present at the test but also those who were presumably
“downwind” from the detonation. Marshall Islands citizens from all atolls and
islands were considered because of the possibility of fallout, low but long-term
exposure, and consumption of produce from nuclear-affected areas. The NCT
provides biological children of a mother who was physically present at the time of
the testing 50% of amounts offered first generation claimants. As of December 2004,
the NCT had paid $71.7 million on personal injury awards totaling over $87 million
18
(...continued)
establish a presumed radiological illness, regardless of where they were located at the time
of the tests.
19
See Conference Report on H.R. 4818, Consolidated Appropriations Act, 2005 (H.Rept.
108-792).
CRS-10
to 1,917 individuals. Over 40% of awardees died before receiving full compensation
due to lack of funds and the pro-rated basis of making payments.20
In response to U.S. government concerns that the Nuclear Claims Tribunal may
have been unduly influenced by political pressures or had operated without adequate
transparency, in 2002, the Marshall Islands government commissioned former United
States Attorney General Richard Thornburgh to undertake an independent
examination and assessment of the judicial processes used by the Nuclear Claims
Tribunal. The Thornburgh report concluded that the Tribunal: fulfilled the basic
functions contemplated by the U.S. Congress and the Marshall Islands legislature, the
Nitijela; followed procedures that closely resemble those used by legal systems in the
United States; and operated with a reasonable degree of independence from the
Nitijela.21
The U.S. RECA Program22
The 1990 Radiation Exposure Compensation Act (RECA) provides
“compassionate” lump-sum payments to individuals who have contracted certain
cancers and other serious diseases that are presumed to be the result of their exposure
to ionizing radiation from above-ground nuclear weapons testing or from various
activities in connection with uranium mining.23 RECA is administered by the
Department of Justice’s Civil Division.24
As originally enacted in 1990, RECA established two categories of claimants:
(i) downwinders (i.e., civilians who lived in specified counties downwind from the
Nevada Test Site in the 1950s and early 1960s) who developed one of 13 types of
cancer; and (ii) uranium miners in certain states who worked in underground mines
between 1947 and 1971 and who developed lung cancer or certain nonmalignant
respiratory diseases. Immediately after its enactment, RECA was amended to include
a third category of claimant: government employees and others who participated onsite in an above-ground test, and who developed one of the same 13 cancers for
which downwinders may be compensated.25 RECA was more substantially modified
20
[http://www.nuclearclaimstribunal.com/piawards.htm]
21
Dick Thornburgh, Glenn Reichardt, and Jon Stanley, The Nuclear Claims Tribunal of the
Republic of the Marshall Islands: An Independent Examination and Assessment of its
Decision-Making Processes, Kirkpatrick & Lockhart LLP, Washington, DC, January 2003.
22
Prepared by C. (name redacte d), Specialist in Life Sciences.
23
P.L. 101-426, 104 Stat. 920 (Oct. 15, 1990).
24
Information about RECA is online at [http://www.usdoj.gov/civil/torts/const/reca].
25
P.L. 101-510, 104 Stat. 1835 (Nov. 5, 1990). On-site participants are individuals who
were present above or within the official boundaries of the Nevada, Pacific, Trinity, or
South Atlantic Test Sites during a period of testing and who participated in the test. Note
that citizens of the Marshall Islands are specifically excluded from eligibility for
compensation under RECA.
CRS-11
and expanded in 2000.26 The changes included creating two new claimant
populations (i.e., uranium millers and uranium ore transporters) and adding six types
of cancer to the list of 13 cancers for which downwinders and on-site participants
may be compensated.
Compensation of Downwinders and On-Site Participants. RECA
specifies a payment of $50,000 to an individual who was physically present in one
of the affected areas downwind of the Nevada Test Site during the period of aboveground testing,27 and who subsequently contracted one of the following specified
diseases: leukemia (other than chronic lymphocytic leukemia); lung cancer; multiple
myeloma; lymphoma (other than Hodgkin’s disease); and primary cancer of the
thyroid, breast, esophagus, stomach, pharynx, small intestine, pancreas, bile ducts,
gall bladder, salivary gland, urinary bladder, brain, colon, ovary, or liver (except if
cirrhosis or hepatitis B is indicated). Individuals who participated in an aboveground test, and who subsequently developed one of the same cancers, are eligible
for a payment of $75,000.
Program Administration. Through FY2002, the Radiation Exposure
Compensation Program (RECP) received 14,987 claims: 7,915 (52.8%) claims were
approved and paid a total of $530.5 million; 4,418 (29.5%) claims were denied; and
the remaining 2,654 (17.7%) claims were pending. A majority of the claims were
submitted by downwinders. Downwinders filed 8,310 claims through FY2002, of
which 4,945 (59.5%) were approved and each paid $50,000 (for a total of $247.2
million), 1,688 (20.3%) were denied, and the remaining 1,677 (20.2) were pending.
Downwinder claims were denied primarily because the claimant did not have an
eligible disease or was not physically present in the affected area during the required
time period.28
Congress makes annual appropriations to the RECA Trust Fund, from which
compensation is paid to eligible claimants. Any money remaining in the Trust Fund
at the end of the fiscal year is carried forward to the next fiscal year. Passage of the
RECA Amendments of 2000 led to a dramatic increase in the number of claims filed
and processed. Congress initially appropriated $11 million to the Trust Fund for
FY2001, but followed that up with a supplemental appropriation for “such sums as
may be necessary” to pay claims through the end of that fiscal year. The Trust Fund
paid out a total of $108 million in approved claims in FY2001. The National
Defense Authorization Act for FY2002 mandated appropriations for the RECA Trust
Fund for a 10-year period — FY2002 through FY2011 — up to a specified maximum
amount each fiscal year.29 That eliminated the need for new congressional action in
26
P.L. 106-245, 114 Stat. 501 (Jul. 10, 2000).
27
The affected area includes certain counties in Utah, Nevada, and Arizona. Claimants had
to be present in the affected area for at least two years between Jan. 21, 1951, and Oct. 31,
1958, or for the period beginning on Jun. 30, 1962 and ending on Jul. 31, 1962.
28
U.S. General Accounting Office, Radiation Exposure Compensation: Analysis of Justice’s
Program Administration, GAO-01-1043 (Washington, DC: Sept. 17, 2001).
29
P.L. 107-107, 115 Stat. 1012 (Dec. 28, 2001). The act appropriated the following amounts
(continued...)
CRS-12
each of those fiscal years unless Congress determined that additional funding was
necessary.30
The Nuclear Claims Tribunal
The Nuclear Claims Tribunal adjudicates claims filed by RMI citizens seeking
compensation for personal injuries and property damage suffered as a result of the
U.S. nuclear tests. The Tribunal used RECA as a model in developing its own
personal injury compensation program, which began in August 1991. As with
RECA, the Tribunal does not require the claimant to prove a specific causal link
between his or her exposure to radiation and the claimant’s injury. The claimant
must simply provide proof of residency in the Marshall Islands during the years of
nuclear testing (i.e., between July 1, 1946, and August 19, 1958) and have one of the
listed compensable diseases, which the Tribunal presumes to be caused by radiation
exposure.
Initially, the Tribunal adopted a list of 25 compensable diseases, including the
cancers listed under RECA, and other conditions for which there was credible
evidence showing a significant statistical relationship between exposure to ionizing
radiation and the subsequent development of the disease. In determining which
diseases to included on the list, the Tribunal reviewed the findings of the Radiation
Effects Research Foundation in Japan and the U.S. National Academy of Sciences,
and sought recommendations from Dr. Robert Miller, an expert in the field of
radiation health effects.
The Tribunal reviews the list of compensable diseases each year and considers
any new scientific evidence on diseases linked to exposure to ionizing radiation. As
a result of that review process, the list has been amended on several occasions since
1991 and now includes a total of 35 medical conditions. Appendix B compares the
dollar amounts awarded for the various compensable diseases covered under RECA
and the Tribunal’s program. Unlike RECA, which pays the same amount for all
downwinder claims (i.e., $50,000), the Tribunal awards differing amounts for the
various diseases on its list.31
National Research Council Report on RECA
On April 28, 2005, the National Research Council (NRC) released a report on
the Radiation Exposure Compensation Program, in which it recommended against
adding any additional diseases to the list of cancers for which downwinders and on-
29
(...continued)
to the RECA Trust Fund: FY2002, $172 million; FY2003, $143 million; FY2004, $107
million; FY2005, $65 million; FY2006, $47 million; FY2007, $29 million; FY2008, $29
million; FY2009, $23 million; FY2010, $23 million; FY2011, $17 million.
30
U.S. General Accounting Office, Radiation Exposure Compensation: Funding to Pay
Claims May Be Inadequate to Meet Projected Needs, GAO-03-481 (Washington, DC: April
14, 2003).
31
For more information, see Thornburgh, et al., op. cit.
CRS-13
site participants may be compensated.32 Instead, the NRC recommended that
Congress establish new scientific criteria for decisions about awarding federal
compensation to people with specific diseases who were exposed to radioactive
fallout from U.S. nuclear weapons tests. The report noted that fallout from the tests
covered a wide geographic area and that people living far beyond the counties
currently designated under RECA may have been exposed to higher amounts of
radiation. To be equitable, the NRC recommended that individual claims be based
on probability of causation (PC). This method employs a formula to determine
whether an individual’s estimated radiation exposure is likely the cause of his or her
specific cancer. If the estimated PC for that individual meets or exceeds the criteria
established by Congress, then compensation is awarded. The NRC also
recommended that the costs of screening, diagnosis, and treatment of compensable
diseases be covered for awardees. Noting the generally low levels of exposure from
fallout and the fact that ionizing radiation is not a potent cancer-causing agent, the
report concluded that any changes in the eligibility criteria for compensation probably
would result in few additional successful claims.
The Changed Circumstances Petition33
The Compact of Free Association between the United States and the Republic
of the Marshall Islands (RMI), Section 177, and the Agreement for the
Implementation of Section 177 created a $150 million Nuclear Claims Fund for four
“most affected” Marshall Islands atolls and their peoples.34 The Compact, which
went into effect in 1986, settled and terminated nuclear compensation lawsuits by
Marshall Islanders against the United States government that were pending in U.S.
courts, and established the NCT to adjudicate claims and grant awards from the
Nuclear Claims Fund. However, Article IX of the 177 Agreement (the Changed
Circumstances Clause) provided for possible additional compensation, if loss or
damages to persons or property arose or were discovered that could not reasonably
have been identified as of the effective date of the agreement (1986) and if such
injuries rendered the provisions of the Compact “manifestly inadequate.”
Furthermore, according to the Petition’s supporting arguments, the Fund
constituted a “political settlement” rather than a determination based upon a scientific
assessment of costs. At the time of the Compact negotiations, RMI officials and
other experts reportedly argued that the full extent of personal injury and private
property damages was not known. Congress hence agreed to retain its authority,
through legislation to approve the Compact (P.L. 99-239), to appropriate additional
compensation should the need arise.35 In addition, legal counsel for the four atolls
32
National Research Council, Assessment of the Scientific Information for the Radiation
Screening and Education Program (Washington, DC: National Academy Press, 2005).
33
Prepared by (name redacted), Specialist in Asian Affairs.
34
The U.S. nuclear weapons tests were conducted on Bikini and Enewetak atolls while
Rongelap and Utrik atolls suffered radioactive fallout.
35
Howard L. Hills, “Historical Information Regarding the Marshall Islands Nuclear Claims
(continued...)
CRS-14
maintain that U.S. courts left open the possibility that RMI plaintiffs could also
return to the courts if they did not receive adequate compensation from the NCT and
the Nuclear Claims Fund.36
Finally, the RMI government seeks remedies on the basis of “equity” or
compatibility with the U.S. government’s compensation program for radiationexposed civilians and with its standards for cleaning up radiation-contaminated
facilities. Government officials claim that the RMI has received only a fraction of
the amount of money the U.S. government has spent on areas in the United States
exposed to radiation during the Cold War.
Petition Requests
!
Unpaid NCT personal injury awards of $15.7 million (due to lack of
funds).
!
Unpaid NCT property damages awards (due to lack of funds) to
Enewetak Atoll ($386 million) and Bikini Atoll ($563 million) for
loss of use of their lands (past and future), restoration costs, and
hardships suffered.37
!
$50 million for medical infrastructure.
!
$45 million annually (50 years) for a “Section 177” health care
program for those exposed to radiation during and after the tests and
for NCT personal injury claimants.38
!
An extension of DOE medical surveillance and environmental
monitoring program for exposed groups and areas for 50 years.
35
(...continued)
Settlement,” op. cit.
36
People of Enewetak v. United States, 864 F. 2d 134, 136 (Fed. Cir. 1988); Thornburgh,
et al., op. cit.
37
The NCT granted awards to the people of Enewetak on April 13, 2000 and to the people
of Bikini on March 5, 2001. These awards were adjusted to reflect amounts already
received through other measures. The Enewetak award includes $244 million for loss of
use, $107 million for restoration, and $34 million for hardships suffered. The Bikini award
includes $278 million for loss of use, $251 million for restoration, and $34 million for
hardships suffered. Pending claims before the NCT include class action lawsuits for the
peoples of four other nuclear-affected atolls — Rongelap, Utrik, Ailuk, and Likiep. Nuclear
Claims Tribunal awards for these atolls would be added to the monetary claims of the
Changed Circumstances Petition.
38
This assistance presumably would supplant NCT awards as the NCT ceases operation.
Such a program would include coverage for those RMI workers involved in cleanup
operations on contaminated sites but who are currently ineligible for 177 Health Program
services because they were not residents of one of the four nuclear-affected atolls during the
time of testing (or descendants of such residents) or not yet born at the time of testing.
CRS-15
!
Capacity-building, occupational safety, and “nuclear stewardship:”
programs to enable the RMI to conduct its own research in radiationrelated fields, promote the safety of Marshallese workers involved
in environmental remediation and cleanup activities, and teach
affected communities about how to safely contain radiation.39
“Changed Circumstances” Basis of Petition and Supporting
Arguments
The Petition justifies its claims of “changed circumstances” largely upon “new
and additional” information since the Compact’s enactment — Department of Energy
records (declassified in the early 1990s) that indicated a wider extent of radioactive
fallout than previously known or disclosed, and scientific findings that reduced the
levels at which exposure to radiation was deemed safe. As a result of, and in addition
to, the above findings, the Petition and accompanying materials argue that higher
than expected health consequences and costs of health care, medical surveillance,
environmental cleanup, and radiological monitoring, as well as lower than expected
investment returns from the Nuclear Claims Fund, constitute changed circumstances.
The Petition refers to the following studies and factors regarding “changed
circumstances” and the “manifest inadequacy” of Compact provisions:
Declassified Information. According to the Petition, when the Compact and
Section 177 Agreement were written, most nuclear test injuries and damages were
attributed to the Bravo hydrogen bomb test of 1954. In the early 1990s, the United
States government declassified information that revealed the yields of the other 66
weapons tests. On the basis of this new information, experts for the RMI challenged
the notion that only four atolls were exposed to dangerous levels of radiation from
the U.S. nuclear weapons program.40
New and Updated Scientific Findings. According to the Petition, in 1997
and 1999, EPA issued two directives that established a 15 millirem (mrem) annual
dose limit. Prior to the late 1990s, most scientific studies assumed a safe level of
exposure to be 100 mrem per year above background levels of radiation (external
plus internal doses). When the Compact was agreed upon, the accepted dose limit
was 500 mrem per year. The EPA’s 15 mrem standard, adopted by the Nuclear
Claims Tribunal, would imply higher cleanup costs and at least nine additional atolls
that were exposed to dangerous levels of radioactive fallout. The Biological Effects
of Ionizing Radiation Committee, 1990 (BEIR V) asserted radiation exposure to be
39
RMI officials assert that U.S. compensation for medical infrastructure, health care, and
capacity building in the RMI would reduce reliance upon the United States and support
services for exposed populations as well as address long-term, “inter-generational problems
and illnesses,” related to the nuclear tests, at a fraction of the cost of funding health care in
either the United States or other Pacific Island entities such as the Northern Mariana Islands
and Guam. See Holly M. Barker, Ph.D., “Staff Briefing on the RMI’s Changed
Circumstances Petition” (March 26, 2004); Changed Circumstances Petition, “Attachment
VI: Medical Analysis,” by Neal A. Palafox, MD.
40
Holly M. Barker, Ph.D., “Staff Briefing on the RMI’s Changed Circumstances Petition,”
ibid.
CRS-16
almost nine times as damaging as that estimated by the 1972 Committee (BEIR I).41
A study by Mauro and Behling asserted that whole body doses from external
radiation were more than twice as high as previous estimates while estimates of
thyroid doses to residents of Rongelap and Utrik were underestimated by 10-20
times.42
Compact Funding Proved to Be Manifestly Inadequate. The Petition
claims that the higher costs associated with health care, medical surveillance, and
radiological monitoring of Marshallese citizens and their atolls could not reasonably
have been identified at the time of the 177 Agreement. Medical and related programs
established by the Compact were “grossly inadequate.” Furthermore, the investment
returns on the Nuclear Claims Fund of $150 million were expected to generate $270
million over the 15 years of the first Compact term — a 12% annual rate of return or
approximately $18 million per year — to be distributed mainly among the 177 Health
Program, trust funds for the four atolls, and the Nuclear Claims Tribunal. However,
the petitioners argue that the Fund lost 15% of its value in 1987, primarily in the U.S.
equity market, and that it suffered major losses in all investment markets in 2001-02.
According to the Tribunal, the Fund earned approximately $160 million rather than
$270 million (1986-2001) as projected when the Compact was negotiated. The
Petition contends that greater than expected claims and lower than anticipated
interest earnings constitute changed circumstances. To make payments to the NCT
and atoll distribution authorities, the corpus of the Fund has been nearly depleted
with only about $4 million remaining and approximately $15.7 million in unpaid
awards in 2005.43 See Appendix C.
The Administration Report
In November 2004, the Bush Administration, in response to Congress’ request
for an evaluation of the RMI Petition, issued a report rejecting the argument that the
petition’s claims constituted “changed circumstances.” The report argues that the
“mixed earnings record” of the Nuclear Claims Fund and high medical care demands
do not provide bases for a funding request under the “changed circumstances”
provision of the Section 177 Agreement. The report suggests that the NCT granted
personal injury awards too liberally. For example, according to the report, the
Tribunal provided payments for medical conditions that are not recognized under
U.S. radiation injury compensation programs, and to persons with low likelihood of
exposure, including descendants of affected individuals (to which transference of
nuclear effects is not proven). The Administration also states that the enrollment of
“ineligible” persons in the Four Atoll Health Care Program (177 Health Program)
41
“Health Effects of Exposure to Low Levels of Ionizing Radiation, Report of the Advisory
Committee on the Biological Effects of Ionizing Radiation” (BEIR V), National Academy
of Sciences-National Research Council, Washington, D.C.
42
Changed Circumstances Petition, “Attachment II: Scientific Analysis — An Overview of
the Technical Basis for Changed Circumstances,” by John Mauro, Ph.D. and Hans Behling,
Ph.D.
43
[http://www.nuclearclaimstribunal.com]
CRS-17
“remains a concern.” Furthermore, there were no losses or damages to property that
“could not reasonably have been identified” at the time of the 177 Agreement and
that would thus constitute changed circumstances. The report adds that there is no
legal basis under the Changed Circumstances Clause for funding health education,
occupational safety, and community programs.
The Administration disputes the Petition’s scientific claims. It argues that the
middle atolls south of Bikini, Enewetak, Rongelap, and Utrik were not exposed to
dangerous levels of radioactive fallout. It states: “The weight of expert scientific
evidence indicates that the present impact of radioactive fallout on the Marshall
Islands is limited to the northerly atolls and islands...most historically inhabited
islands in the northern atolls could be resettled under specific conditions.”44 The
report cites the Nationwide Radiological Survey,45 which was commissioned by the
RMI with funding provided by the U.S. government and completed in 1994. The
Survey’s results, which were rejected by the Nitijela, the RMI Legislature, found that
only four atolls — Bikini, Enewetak, Rongelap, and, to a lesser extent, Rongerik —
contained unsafe levels of radiation or would require limited remediation or dietary
restrictions. The Administration challenges the RMI assertion of a nine-fold increase
in the Biological Effects of Ionizing Radiation (BEIR) Committee’s estimates of risk
from radiation exposure and contends that Behling’s estimates of average external
doses of radiation are about twice has high as those of other experts.
The Administration report denies that past cleanup efforts on the Marshall
Islands were inadequate or conducted according to obsolete risk standards. Contrary
to RMI assertions, the report states that the current U.S. dose limit to protect the
public from all sources of radiation is 100 mrems rather than 15 mrems. It states:
Extensive monitoring of individuals on Marshall Islands atolls where cleanup has
been effected indicates actual radiation doses are below 0.15 mSv (15 mrem), the
value advocated by the Tribunal. RMI cleanup decisions to date have conferred
a degree of protection that exceeds all existing U.S. federal agency guidelines as
well as the Tribunal’s desired standard.46
44
U.S. Department of State, Report Evaluating the Request of the Government of the
Republic of the Marshall Islands, op. cit., p. iii.
45
Steven L. Simon and James C. Graham, “Findings of the Nationwide Radiological Study,”
1994. See also Steven L. Simon and James C. Graham, “Findings of the First
Comprehensive Radiological Monitoring Program of the Republic of the Marshall Islands,”
Health Physics, vol. 73, no. 1 (July 1997).
46
U.S. Department of State, Report Evaluating the Request of the Government of the
Republic of the Marshall Islands, op. cit., p. 7.
CRS-18
Analysis and Discussion of Selected Scientific,
Methodological, Policy, and Legal Bases of the
Changed Circumstances Petition
The Changed Circumstances Petition relies upon scientific, methodological,
policy, and legal assumptions that may be disputable or require further inquiry. The
following section analyzes and discusses several issues related to key personal injury,
health care, and property damages claims in the Petition. These include expected
radiation-related illnesses in the Marshall Islands; the methodology for determining
the value of “lost use” of damaged properties; the appropriate standard of risk (annual
dose limit) for determining cleanup levels; and the extent of radioactive fallout.
Finally, this report discusses possible legal options for the RMI in pursuing nuclear
damages claims.
Cancer Estimates47
The magnitude of potential future requests for personal injury compensation in
the Marshall Islands may be deduced from cancer estimates prepared by the NCI in
September 2004.48 Among the approximately 14,000 persons in the Marshall Islands
during the 1946-1958 period of nuclear testing, NCI estimated that about 6,130
cancers would occur over their lifetimes. About 5,600 of those cancers would have
occurred even if the nuclear tests had not taken place (the baseline risk), and about
530 were estimated to be caused by fallout from the tests. Therefore, the NCI study
estimated that the nuclear testing program would increase the cancer rate for the
entire exposed population by about 9% above the baseline.
NCI’s baseline cancer risk estimate was derived from cancer rates for all races,
adjusted to reflect statistics for ethnic Hawaiians. Estimates of the additional risk
posed by the nuclear testing program were based on urine samples collected on two
nearby atolls after the largest test (BRAVO), whole-body data collected years later,
and a 1995 radiological survey of the entire Marshall Islands.
Although NCI estimates that less than 10% of the projected cancers among the
testing-exposed population would be caused by the nuclear tests, those cancers are
indistinguishable from the 90% of cancers that would have occurred anyway.
Therefore, to ensure compensation of the testing victims, everyone suffering from the
specified types of cancer should be eligible for awards. This has been the policy of
the Nuclear Claims Tribunal and is similar to the way persons exposed to Nevada
nuclear testing are compensated under the “downwinders” program.
47
48
Prepared by (name redacted), Specialist in Energy Policy.
U.S. Dept. of Health and Human Services, National Institutes of Health, National Cancer
Institute, Estimation of the Baseline Number of Cancers Among Marshallese and the
Number of Cancers Attributable to Exposure to Fallout from Nuclear Weapons Testing
Conducted in the Marshall Islands, September 2004. Prepared for Senate Committee on
Energy and Natural Resources.
CRS-19
The NCI report estimates that about half the 6,130 cancers projected for the
nuclear testing population “are yet to develop or be diagnosed.”49 The report also
notes that 2,046 personal injury awards had been made through June 30, 2004. This
would indicate that over 3,000 claims may have yet to be filed among persons alive
during testing. If eligibility is extended to persons born after the end of the testing
period, the number of potential additional claims could be far higher, assuming
baseline cancer rates remain steady.
Loss of Use Methodology50
The loss-of-use methodology, which is the same for both the Enewetak and
Bikini claim, was developed by a consulting firm under contract for counsel for
claimants and the NCT, which provided many of the estimation parameters and
assumptions.51 According to the consulting firm’s report, no alternative
methodologies were explored or used.52 The resulting estimates of the dollar value
of loss-of-use were adjusted and awarded by the NCT as damages (or reparations) to
the Enewetak and Bikini peoples.53 The adjusted estimates are also the amounts
requested in the Changed Circumstances Petition.
In general, the methodology used by the NCT to estimate the value of the lost
use of the claimants property is viewed as reasonable and appropriate. For several
reasons, however, the specific application of the methodology — much of the critical
data used, many of the assumptions, and certain statistical procedures applied (i.e.,
the sampling technique and the regression model) — result in past and future loss-ofuse estimates that appear to be overstated, which could lead to possibly excessive
total damages claimed and awarded by the NCT. The main problem is with the use
of inflated average rents per acre, which are estimated by applying an exponential
regression model to unrepresentative sample data that largely reflect governmentinfluenced rents rather than competitive, free-market levels.54 This leads to an
apparent overestimate of not only past loss-of-use, but because estimated rents is a
49
Ibid., p. 14.
50
Prepared by (name redacted) , Specialist in Public Finance.
51
Appraisal Report of the Loss in Value in Enewetak Atoll, Republic of Marshall Islands for
the Nuclear Claims Tribunal. The Hallstrom Group, Inc., and Raymond A. Lesher & Co.,
Ltd., May 17, 1996; Appraisal Report of the Aggregate Loss in Use Value in the Bikini Atoll
in the Republic of Marshall Islands. Report written for Mr. Jonathan Weisgall, Chartered.
The Hallstrom Group, Inc. November 19, 1997. Both the Hallstrom Group, Inc., and
Raymond Lesher & Co. Ltd., are real estate appraisal firms.
52
For the Bikini claim, the NCT had access to a second set of independent estimates from
a report written by the New Zealand firm of Darroch Limited for the Defender of the Fund.
That report used the same methodology as in the NCT report, but made fewer assumptions.
Since the NCT did not use these estimates, but used the estimates of the Hallstrom Group
to award damages instead, this second report is not discussed.
53
Nuclear testing occurred on Enewetak and Bikini, but claims are pending in the case of
Rongelap, Utrik, Ailuk, and Likiep, which, though not directly bombed, experienced
radioactive fallout.
54
The discussion on page 21of this report elaborates on this point.
CRS-20
critical variable used as an input into future-loss-of-use calculations, also to an
overestimate of future loss-of-use as well.55
The methodology also 1) assumes that more land is lost to use, and for longer
periods than is actually the case, 2) undervalues the rentals on alternative atoll
habitation, and 3) assumes that recipients of rental proceeds, as consumers and
savers, would have saved 100% of the rental proceeds. Each of these assumptions
overestimates past loss of use. Alternative methodologies or assumptions may have
led the NCT to a different outcome.
The NCT Methodology. The methodology used by the NCT to estimate the
value of the loss-of-use of lands belonging to the people of Enewetak and Bikini
attempts to calculate the fair market rental value of those portions of the Enewetak
and Bikini atolls that the people were unable to use, as a result of their evacuation
and use (appropriation) by the U.S. government. According to the NCT, this rental
value represents an estimate of the rents that the U.S. government should have paid
(but were not fully paid, according to the claimants) to the atoll residents, as
proprietors, for the use of their land. Compensation is based on estimated rental
values, in lieu of land asset values, because the underlying assumption is that the U.S.
Government did not “take” or purchase the land but instead used it, with the
consequence that the inhabitants were unable to use it. There is generally a close
mathematical relationship between rentals and land values.
Loss-of-use includes not only the period when the United States tested the
nuclear bombs — roughly the period from 1946 to 1958 — but the period during
which the islands remain unsafe due to continued dangerous levels of radiation
contamination, which, for some of the islands at least, is roughly the period from
1958 to 2027.56
More specifically, the estimate of total loss-of-use is the sum of two
components: past loss-of-use, which is the present value of rents that should have
been paid from the time of evacuation to the date of the appraisal reports’
publication, and future loss-of-use, which is the present value of estimated rents from
the reports’ publication dates to that estimated date in the future (as described below)
when the lands are decontaminated and usable. In addition, as part of the past loss-ofuse estimates, the NCT also awarded what it called a “prejudgment interest,” which
is the interest income earned on the original judgements from the time they were
determined to the time they were awarded. See Table 1.
Description of Past Loss-of-Use Methodology. For Enewetak, past lossof-use consists of the estimated rents on the entire atoll (1,952.6 acres) from the onset
of evacuation (December 21, 1947) to the date of return on October 1, 1980.
However, when the Enewetak people were allowed to return on October 1, 1980, they
55
See also CRS Report for Congress #RL33029, Loss-of-Use Damages From U.S. Nuclear
Testing in the Marshall Islands: Technical Analysis of the Nuclear Claims Tribunal’s
Methodology and Alternative Estimates, by (name redacted).
56
Memoranda of Decisions and Order for Enewetak and Bikini attached to the Changed
Circumstances Petition.
CRS-21
were allowed to safely use only 646.82 acres of the atoll — 1,305.78 acres continued
to be off limits due to dangerous levels of radioactive contamination. Thus, past lossof-use includes the estimated rents on this 1,305.78 acres from October 1, 1980, to
May 16, 1996, which is the date of the Hallstrom Group’s appraisal report. For
Bikini, past loss-of-use is the estimated rental value of all the atoll (the 1,889.36
acres) from March 7, 1967 to November 18, 1997, when the Bikini appraisal report
is dated. The methodology assumes that the loss-of-use was continuous and
uninterrupted — that the islanders never returned to their atoll.57
Table 1. The NCT’s Estimated Damages for Loss-of-Use, by
Component
($ in thousands)
Enewetak
Type of Loss
Time Period
Past Lost Use
Future Lost
Use
Bikini
Amount
($ thousands)
Time Period
Amount
($ thousands)
12/21/47 to
5/16/96
149,000
3/3/46 to
11/18/97
163,731
5/17/96 to
5/17/2026
50,154
11/19/97 to
11/18/2027
68,420
Sub-Total
199,155
232,150
Pre-judgment
Interest
1/97 to 4/2000
44,845
5/98 to 3/2001
45,849a
Grand Total
(rounded)
8/3/2000
244,000
3/5/2001
278,000
Sources: Memoranda of Decisions and Order for Enewetak and Bikini attached to the
Changed Circumstances Petition; and Bill Graham. Outline of the Prepared Remarks for
Congressional Staff Briefing. The Operations of the Marshall Islands Nuclear Claims
Tribunal Established Pursuant to U.S. Public Law 99-239. April 23, 2004.
Notes: a. Pre-judgment interest on loss-of-use for Bikini is not available and was estimated
by CRS based on the other available data. The Hallstrom Group estimates of past lost use
are 60% greater than the Darroch report estimates; for future loss-of-use, the Hallstrom
report estimates are nearly 200% greater than the Darroch report estimates.
More specifically, the value of past lost use is calculated by: 1) estimating
average rents per acre (which are assumed to be the same for Enewetak and Bikini)
57
Some of the Bikinians returned to the atoll in June 1969, but had to be re-evacuated in
August of 1978 due to continued high and dangerous levels of radioactivity from nuclear
contamination. The islands of Enyu and Bikini were returned to, and inhabited by, the
Bikinians in 1985 and 1989, respectively. The appraisal reports assume, based on
instructions from the NCT, that there was no return and that the loss-of-use was continuous
and uninterrupted.
CRS-22
for each year of denied use;58 2) determining the acreage of denied use for Enewetak
and Bikini for each year,59 3) multiplying, for each year of lost use, beginning with
the year of evacuation, estimated average rents per acre by the number of acres
determined to be lost to use, 4) subtracting the use or rental value of alternative atoll
habitation (Ujelang in the case of Enewetak and several alternative atolls in the case
of Bikini); 5) deducting, for each year, any prior compensation paid as rent for the
actual use of Enewetak and Bikini, or for the loss-of-use by the Enewetakians and
Bikinians as a consequence of the U.S. government’s use; 6) multiplying each of
these estimated annual rents by a compound interest factor (which is a figure that
accounts for the interest that would have been earned on the annual rents up to the
time of valuation), 7) adding the interest income on the returns from investing the
rental proceeds in U.S. 30-year bonds; and 8) summing each year’s interest-adjusted
estimated rentals cumulatively (each of the annual figures from step 4) over all the
years during which the Enewetak and Bikini islanders were deprived of their land
(from December 21,1947 to May 16, 1996, for Enewetak; from March 7, 1946, to
November 18, 1997 for Bikini).
Pre-Judgment Interest Methodology. Pre-judgment interest is the interest
income (or return) that accumulates on the original award of $199,154,811
(Enewetak) and $232,150,821 (Bikini) compounded from the original date that the
loss-of-use claims were heard to the time of the awards. For Enewetak this is the 40month period from January 1997 to April 2000; for Bikini this is the 33-month period
from May 1998 to March 2001.60 In effect, this pre-judgment interest assumes that
the loss-of-use awards should have been paid when the claims were heard as
compared to when either the estimates were generated and reported to the NCT,
when the claims were actually awarded, or when the claims will be paid, if ever.
Description of Future Loss-of-Use Methodology. Future loss-of-use
begins on the day after the damage estimates were reported (May 17, 1996, for
Enewetak; November 19, 1997, for Bikini) and continues until such time as the
claimants are estimated to be allowed to return to a safe homeland (May 16, 2026,
for Enewetak; November 18, 2027, for Bikini). The value of future loss-of-use is
calculated as the present discounted value of the estimated annual rents over this time
period.
58
Note that average rents have to be estimated since there were no actual leases of land on
Enewetak or Bikini from which to obtain reliable actual rents on comparable properties.
59
There is some reported difference in the total acreage of the Bikini atoll depending on the
survey source. The Hallstrom report assumes the total acreage is 1,889.63; the Darroch
report assumes it is 1,848.34. The NCT uses the higher of the two.
60
As discussed in section two, the relevant dates are as follows: for Enewetak the
Hallstrom loss-of-use estimates report is dated May 16, 1996; the report was transmitted to
counsel and the NCT in October 1996; the claims hearings were conducted in January, 1997;
and the award was granted on April 13, 2000. For Bikini, the Hallstrom loss-of-use
estimates report is dated November 19, 1997; the report was transmitted to the NCT and
filed in April 1998; the claims hearings were conducted in May, 1998; and the award was
granted on March 5, 2001.
CRS-23
More specifically, for Enewetak, future loss-of-use is the value of projected
foregone rental income on the 1,305.78 acres from the period from May 17, 1996 to
May 16, 2026, (which is the estimated date that the 1,305.78 acres of Enewetak atoll
will be sufficiently decontaminated to permit its safe use); for Bikini, future loss-ofuse is from November 19, 1997 to November 18, 2027 (which is the estimated date
that the Bikini islanders will have full use of their atoll once again). These dates of
return were determined by the NCT. Each year’s projected rentals — again the
product of estimated average rents per acre and the projected (or assumed) lost
acreage — is discounted at the assumed uniform nominal interest rate of 8%.
Average rents per acre are assumed to start at $4,105 for Enewetak, and $4,167 for
Bikini, and to remain constant for each year throughout the forecast period. (Each
of these rates is the rate projected in the final year of the past loss-of-use estimates,
as discussed above.)
Assessment of the Methodology. In general, the methodology used by the
NCT to estimate the value of the lost use of the claimants’ property is viewed as
reasonable and appropriate, although, as discussed below, the specific assumptions,
data, and statistical procedures can produce inflated loss-of-use estimates.
If there was a contract (either implied or explicit) for the lease of Enewetak and
Bikini atolls which was not adequately paid for; or, if there was no contract — if the
United States is responsible for the inability of the Enewetakians and Bikinians to use
their land — the appropriate methodology would be to estimate the dollar value of
that loss-of-use or, equivalently, the value of the U.S. government’s use. This would
be the sum of the present (compounded) rental value of past rents and the present
(discounted) value of projected future rents, as was done in the NCT reports. These
rental values would be the fair market average rents per acre times the relevant
acreage for the length of time that it was rendered unuseable as a result of U.S.
government activities. Indeed, the model underlying the methodology — the capital
asset pricing model — is rooted in sound economic and financial theory, and the
methodology itself is standard methodology used by economists, as well as the
courts, in solving similar problems.
Furthermore, the NCT’s methodology attempts to adjust each year’s estimated
rentals owed (this might be called the gross rentals) for 1) any rentals previously paid
by the U.S. government, 2) the value of alternative accommodations (living
arrangements) provided and financed by the U.S. government, and 3) the interest that
would have been earned on these rentals. In estimating past loss-of-use, hundreds of
actual lease transactions from two distant atolls in the RMI are sampled to estimate
average rents per acre for each year — a critical variable upon which both past and
future loss-of-use estimates (and, therefore, the total damages awarded) are based. In
the estimation of the future loss-of-use, the methodology appropriately attempts to
estimate the value of such loss-of-use as the present discounted value of projected
rentals up to the date of return.
For several reasons, however, the specific application of the methodology —
much of the critical data used, some of the assumptions, and certain statistical
procedures applied (i.e., the sampling technique and the regression model) —
produce past and future loss-of-use estimates that appear to be overstated, which
leads to possibly excessive total damages claimed and awarded by the NCT. The
CRS-24
main problem is with the past loss-of-use estimates, but since these are carried over
into future loss-of-use calculations, those estimates appear to be inflated as well.
Overestimates of Past Lost Use. Past loss-of-use damages appear to be
overstated for several reasons. First, and foremost, the methodology uses inflated
estimates of average rents per acre, a critical variable used as an input into both pastand future-loss-of-use calculations. To estimate average rents per acre, the
methodology uses a nonrandom sample of average rents per acre from lease
transactions from distant atolls which may not reflect the rents on Enewetak and
Bikini. Further, the sample rent data largely reflect rents set by government decree
rather than as the equilibrium of supply and demand for the use of land in a
competitive real estate market (which is the underlying assumption of the type of
model used to estimate loss-of-use). Since 1979, the RMI cabinet has established
above market rentals on government involved leases — which represent the vast
majority of lease transactions in the RMI. On January 1, 1979 the official government
rental was established at $2,500/acre; On October 1, 1989 the rate was increased to
$3,000/acre. The official rate is a benchmark for all other leases, and, in effect,
establishes a “rent floor” for all other lease transactions. Almost all land and
buildings are leased at this official rate. During the 1970’s average rents, which were
probably still high due to U.S. government leases, averaged $597/acre according to
the Darroch report and $511/acre according to the Hallstrom report.
A second reason for overstated past loss-of-use, is that the methodology applies
an exponential regression model to the inflated average rents sample data, data biased
by the $2,500 and $3,000 per acre official rates. In effect, the official government
rents of $2,500 and $3,000 per acre for recent years makes it appear that the overall
trend of rents since 1946 is exponential, which further compounds the upward bias
in the estimated average rents per acre, and thus overestimates past loss-of-use. In
reality, rents reflect values, either agricultural land values or urban land values, which
fluctuate based primarily on economic circumstances.
A third reason for the upward bias in the loss-of-use estimates pertains to the
quantity of land that is assumed to be denied the people of Enewetak and Bikini.
Even though some portions of the affected atolls were completely destroyed or
pulverized by the nuclear testing — 182.46 acres of Enewetak (9.34% of the atoll’s
land acreage) and 69.67 acres of Bikini (3.69% of the land acreage) — the
methodology assumes that they were not. The result is that land that no longer exists
continues to earn inflated rents at compound interest through 2026 for Enewetak and
2027 for Bikini. Given the equivalency between the value of land and the rentals
earned on that land, the appropriate methodology would compensate the landowners
for the value of the destroyed portions of the two atolls, determined at the time of
destruction plus interest. Such value would be based upon reliable estimates of
average rentals that would then be capitalized to determine a market value. This
“present value” would then be adjusted for the time value of money up to the time
that the claim would be awarded.
Fourth, the assumption is made that the rental value of alternative properties
provided to the claimants by the U.S. government (the use gained for these substitute
living quarters on Ujelang and Rongerik) is generally only 58% of the average rents
times the land area of Ujelang in the case of Enewetak; and either 75% or 58% times
CRS-25
the amount of land on Rongerik and Kili in the case of Bikini.61 While the deduction
for value of alternative habitation is viewed as fair and appropriate, the assumption
that the average rentals were a fraction of those on the Enewetak and Bikini atolls is
problematic. Not only does this carry over the upward bias from the prior
calculations — the estimation of foregone rents on the Enewetak and Bikini atolls —
but it is inconsistent with the estimating assumptions, per the instructions of
claimant’s counsel and the NCT, that the methodology will not base value on
economic use, such as production of copra or potential for nuclear storage.62 Also,
there is evidence that the value of alternative domiciles might have been greater due
to the investment of the United States in building houses and other infrastructure.
The NCT methodology also makes some assumptions regarding the timing of
denied use, in the case of Bikini atoll, that raises the loss-of-use damage estimates.
In particular, it assumes that the Bikinians’ loss-of-use was continuous and there was
no return. On March 7, 1946, 167 Bikini islanders (the inhabitant proprietors) were
evacuated, but some of the Bikinians returned to two islands of the atoll (Bikini and
Eneu islands) from June 1, 1969, to July 31, 1978. While it is true that they returned
to a contaminated island, internal consistency in the methodology requires that the
return be counted as such. The implication for the loss-of-use estimation is that the
rentals on these two occupied islands of the atoll would be lower or zero owing to
this contamination, and that the value of their stay on alternative atolls should not be
deducted from the overall rental.
Finally, the methodology to estimate past lost use assumes that the lessors of the
affected RMI atolls would have invested 100% of the rental proceeds in 30-year
Treasury bonds. This assumes that the islanders would have saved 100% of the rental
proceeds. A more realistic assumption would be that they would invest a fraction of
the rental proceeds equal to the assumed savings rate, and that they would have
consumed the remainder. The amount saved based on this calculation would have
been invested or saved in a savings account, or even in U.S. Treasury bonds, at some
appropriate interest rate.63
Overestimates of Future Lost Use. With respect to future loss-of-use,
CRS finds again that the present discounted value methodology is generally
appropriate, but that the estimated dollar amounts are inflated or overstated. The
61
This adjustment is more involved for Bikini because of the relocation to four different
atolls, Rongerik, Kili, Ejit, and Majuro, for different time periods. On a per-acre basis, the
stay on Rongerik and Ejit is valued at 100% of the Enewetak rents, but this was from
slightly more than two years from March 7, 1946, to March 14, 1948, for Rongerik. For
more detail see the Memoranda of Decisions and Order for Enewetak and Bikini attached
to the Changed Circumstances Petition.
62
Memorandum from Jonathan M. Weisgall to Philip A. Okney, Defender of the Fund.
February 23, 1998.
63
Another possible source of overstatement is in the adjustment for prior loss-of-use
compensation. The Bush Administration argues that the extent of such prior compensation
used in the methodology is greater than is allowed for in the NCT reports. CRS was unable
for independently verify this, but if so, this also would contribute to inflated past lost use
values.
CRS-26
primary reason that future loss-of-use is overstated is that the procedure carries over
into the calculation of projected future rents the inflated estimates of average rents
per acre from the past loss-of-use. Thus, for Enewetak, rents for 1997-2026 are
projected to be the same as for 1996 ($4,105/acre); for Bikini, rents for 1998-2027
are the same as for 1997 ($4,167/acre). The assumption that the Enewetakians and
Bikinians could return to use the vaporized islands also contributes to this
overestimate.
Environmental Restoration64
The residents of the Marshall Islands have expressed ongoing concern about the
adequacy of previous efforts of the United States to clean up radioactive
contamination in soil from past nuclear tests. Scientific data suggest that the type and
level of radioactivity in most areas are not likely to pose a significant health risk from
external exposure to the soil itself. Internal intake of radioactivity from the
consumption of foods grown on contaminated soil could pose a higher risk. However,
the health risk from internal consumption would depend on numerous factors, such
as the concentration of radioactivity absorbed and the amount of time it remains
present in the body. The degree of such risk to residents of the Marshall Islands has
been uncertain and controversial.
The Republic of the Marshall Islands (RMI) asserts that the United States
performed prior cleanup according to a less stringent standard than would be required
in the United States today. It further argues that additional cleanup is warranted to
meet the current U.S. standard, noting the policy of the International Atomic Energy
Agency (IAEA) that cleanup of contamination caused by another nation should be
at least as stringent as cleanup within the country of release. The RMI also asserts
that the area of contamination is larger than originally thought, and therefore argues
that further cleanup is warranted.
The 1986 Compact of Free Association between the United States and the RMI
permits the awarding of additional financial compensation because of a change in
circumstances. Consequently, the RMI petitioned, and the Nuclear Claims Tribunal
agreed, that the United States should award additional financial compensation to
perform cleanup according to a more recent U.S. standard, and over a broader area
than had been addressed with prior efforts. However, the Bush Administration
argues that federal funding to pay this claim is not warranted, asserting that radiation
protection standards applied to past cleanup efforts have not become stricter, the area
of known contamination has not changed, and radiation doses are currently safe
according to recent medical tests.
The following sections discuss the Tribunal’s decision on additional
compensation for environmental restoration, the IAEA’s policy on environmental
cleanup, the cleanup standard proposed by the RMI, variables that would determine
whether the standard that the RMI wishes to use would be applied to the cleanup if
it were performed in the United States, the Bush Administration’s viewpoint on the
64
Prepared by David Bearden, Analyst in Environmental Policy.
CRS-27
cleanup standard, and disagreement between the RMI and the Bush Administration
regarding the known area of contamination.
Tribunal Decision on Additional Compensation. The Nuclear Claims
Tribunal recommended that the United States pay additional compensation of $251.5
million to the people of Bikini Atoll for environmental restoration of contaminated
lands. The total estimated cost of the restoration is $360.5 million. The Tribunal
agreed to a lower amount because of adjustments made from $109 million in
compensation already paid by the United States in prior years. The Tribunal also
recommended $91.7 million in additional compensation to the people of Enewetak
Atoll for environmental restoration. The total estimated cost of the restoration of this
atoll is $101.7 million. The Tribunal agreed to $10 million less than this amount,
again because of adjustments made from compensation already paid by the United
States in past years.
The award decisions for both atolls are based on the estimated costs of: 1)
removing and replacing some of the contaminated soil; 2) disposing of excavated soil
by using it as a sealed filler to construct a causeway between various islands; and 3)
treating and monitoring the remaining contaminated soil with potassium, which in
other locations has proven to be effective in blocking the uptake of radioactivity by
food crops. The RMI reports that the cost estimates for the above activities were
calculated based on data from DOE.
The RMI estimated the cleanup costs using a standard U.S. methodology for
selecting remedial and disposal actions from a variety of alternatives, ranging from
the least to the greatest potential cost. For example, the RMI chose a potentially
more cost-effective combination of soil removal and potassium treatment, rather than
the possibly more costly option of removing all contaminated soil.65 For disposal of
removed soil, the RMI considered the more costly option of shipping the
contaminated material to the closest disposal facility in the United States, but
selected the sealed causeway alternative to provide a less costly means of local
disposal that also would provide an infrastructural benefit to the local population.
IAEA Policy on Environmental Cleanup. Issued in November 2003,
IAEA’s current policy on environmental cleanup applies to contamination resulting
from past discharges or disposal of radioactive materials, nuclear accidents or other
events, and nuclear weapons tests,66 such as those that the United States conducted
in the Marshall Islands during the 1940s and 1950s. In its petition for additional
compensation from the United States, the RMI argues that more stringent U.S.
standards warrant further cleanup. In support of its argument, the RMI’s petition
refers to the “position” of the IAEA that “....policies and criteria for radiation
65
However, the estimated cost of potassium treatment is based on current costs. The RMI
reports that potassium treatment and monitoring of contaminated soil that is not removed
would be necessary for the next 100 years to ensure the safety of food crops. The long-term
costs of this treatment method and monitoring, as opposed to the current dollar costs of
removing all contaminated soil, are uncertain.
66
International Atomic Energy Agency. Safety Standard Series: Remediation of Areas
Contaminated by Past Activities and Accidents. WS-R-3. November 2003. p. 3.
CRS-28
protection of populations outside national borders from releases of radioactive
substances should be at least as stringent as those for the population within the
country of release.”67
The above statement is from an IAEA policy on transboundary radiation
exposure, released in 1985 as part of the Agency’s safety series.68 Allan Richardson,
a scientific consultant who assisted the RMI in the preparation of its petition, also
referred to the above 1985 policy in his testimony before the House Resources
Committee on May 11, 1999, in support of his argument that more stringent U.S.
cleanup standards should be applied in the Marshall Islands.69 However, this policy
primarily applied to situations in which a nuclear facility located close to the border
of another nation released radiation that resulted in exposure to foreign populations
across borders, rather than to the cleanup of contamination from past nuclear tests or
other events.
The IAEA published over 100 policy documents in its safety series through
1996, including the above 1985 policy. Since that time, the IAEA has superseded
these documents with a new series, consolidating and revising many of its former
documents.70 The IAEA released its current policy document on environmental
cleanup in November 2003, as noted above. It consolidates many of the policies
from the former safety series, but it does not include a policy on cleanup of
contamination outside national borders.
The IAEA’s current safety standards for radioactive discharges do include a
policy on transboundary exposure similar to the above 1985 policy, recommending
that “radiation protection of populations outside national borders from discharge of
radioactive substances should be at least as stringent as those for the population
within the country of discharge.”71 This policy applies to ongoing activities ranging
from the operation of nuclear reactors and reprocessing facilities to medical and
research purposes, but not to past events, such as nuclear weapons tests.72
The IAEA’s current policy on the cleanup of radioactive contamination states
objectives for protecting public safety, recommends a framework for individual
67
Nuclear Claims Tribunal. Memorandum of Decision and Order in the Matter of the
People of Enewetak, et al., Claimants for Compensation. NCT No. 23-0902.
68
International Atomic Energy Agency. Assigning a Value to Transboundary Radiation
Exposure. Safety Series No. 67. 1985.
69
106th Congress. House Resources Committee. The Status of Nuclear Claims, Relocation,
and Resettlement Efforts in the Marshall Islands. Testimony of Allan C.B. Richardson.
Hearing, May 11, 1999. Serial No. 106-26. p. 182.
70
See the International Atomic Energy Agency website for the full text of both the current
and former safety series. However, the 1985 safety document on transboundary exposure
is not available online at this site, and is no longer in print.
[http://www-ns.iaea.org/publications]
71
International Atomic Energy Agency. Safety Standard Series: Regulatory Control of
Radioactive Discharges to the Environment. WS-G-2.3. July 2000. p. 23.
72
Ibid., p. 2.
CRS-29
nations to establish their own legal and regulatory requirements to achieve these
objectives, and provides guidance for the development and implementation of
remedial actions. Cleanup in contaminated areas is recommended if the cumulative
annual dose of radiation from all sources, including natural background levels, would
exceed 10 millisieverts (1,000 millirems or 1 rem).73 The IAEA guidance specifies
that this amount would “normally be assessed as the mean dose for an appropriately
defined critical group.”74 However, the IAEA policy does not specify the quantity of
individuals or demographics that would constitute a group for the purpose of
measuring a mean dose. How to define a dosage group would be left to the discretion
of each nation, and whether to perform cleanup and to what degree would depend on
each nation’s legal requirements.
Neither the former nor the current series of safety standards is legally binding
on Member States, including the United States, except in situations in which the
IAEA is involved in a specific action at the request of a Member State. To clarify
this matter in its current safety series, the IAEA included language in the preamble
to each policy document stating that, “The IAEA’s safety standards are not legally
binding on Member States but may be adopted by them, at their own discretion, for
use in national regulations in respect of their own activities. The standards are
binding on the IAEA in relation to its own operation and on States in relation to
operations assisted by the IAEA.”
As such, the IAEA’s safety policies constitute recommended guidelines for
protecting human beings from exposure to potentially harmful levels of radiation,
rather than legally binding or enforceable requirements. Consequently, it appears that
IAEA safety policies do not bind the United States to a certain degree of cleanup at
sites within or outside its borders, including the Marshall Islands, as long as the
IAEA is not involved in carrying out specific actions at the request of either nation.
To apply IAEA policy to the cleanup of the Marshall Islands therefore appears to be
a policy decision, rather than a legal requirement.
Cleanup Standard Proposed by the RMI. Federal radiation protection
standards are not uniform in the United States, but vary in stringency among
regulatory agencies, and are specific to certain sources and circumstances.75 The
degree of cleanup that the RMI wishes to perform is based on an EPA cleanup
73
A “rem” is a unit of measure of exposure to radiation, commonly used in the United
States. One rem is equivalent to 1,000 millirems. A “sievert” is a more recent unit of
measure of radiation commonly used outside of the United States. One sievert is equivalent
to 100 rems.
74
International Atomic Energy Agency. Safety Standard Series: Remediation of Areas
Contaminated by Past Activities and Accidents. WS-R-3. November 2003. p. 6.
75
The General Accounting Office (GAO, now renamed the Government Accountability
Office) issued a report in June 2000, which provides an overview of major federal radiation
protection standards. It examines the varying stringency of these standards and discusses
disagreements among regulators and the scientific community as to what level of radiation
exposure is harmful to human health. See, General Accounting Office, Radiation
Standards: Scientific Basis Inconclusive, and EPA and NRC Disagreement Continues,
GAO/RCED-00-152, June 2000.
CRS-30
standard that limits annual radiation exposure from all sources to 15 millirems. This
standard establishes the “reasonable maximum exposure” of radiation for an
individual above the local natural background level, which EPA deems would be safe
without resulting in harmful biological effects. The IAEA’s recommended standard
of 1 rem of cumulative annual exposure for an “appropriately defined group” is not
comparable to EPA’s standard or DOE’s 100 millirem standard, discussed below, as
these latter two standards limit exposure to individuals above natural background
levels.
Further, these exposure standards do not limit the concentration of radioactivity
in soil, groundwater, or surface water. Rather, the allowable concentration to attain
an exposure limit would depend on the potential pathway of human exposure
resulting from the intended land use. Consequently, the degree of cleanup can differ
significantly from site to site. Relatively little cleanup may be required if the
potential for exposure were minimal. Conversely, more cleanup may be necessary
if there were greater likelihood of exposure. The RMI has based the degree of
cleanup that it has planned on the possible risk of exposure from residential and
agricultural use on the two atolls.
EPA issued its 15 millirem standard in 1997 in an agency guidance document.
This guidance recommends safe levels of human exposure to determine the degree
of cleanup at Superfund sites in the United States where radioactive contamination
is present.76 To date, EPA has not proposed this standard in federal regulation, and
it is not legally enforceable or binding in the United States. However, EPA issued
the standard based on an enforceable federal regulation, which requires a degree of
cleanup that would result in a cancer risk of no greater than 1 in 1 million, or as much
as 1 in 10,000 in certain circumstances.77
Applicability of Standards to Marshall Islands Cleanup. The RMI
asserts that EPA’s 15 millirem standard should be used to determine the degree of
cleanup in the Marshall Islands, arguing that this standard would apply to the cleanup
if it were being done in the United States. However, this is not necessarily the case.
If the Marshall Islands were a U.S. territory, DOE presumably would be responsible
for the cleanup there.78 DOE’s general standard for cleanup at former nuclear
weapons production and test sites specifies an annual individual limit of 100
76
U.S. EPA. Memorandum. Establishment of Cleanup Levels for CERCLA Sites with
Radioactive Contamination. Office of Emergency and Remedial Response, and Office of
Radiation and Indoor Air. OSWER No. 9200.4-18. August 22, 1997. CERCLA is the
Comprehensive Environmental Response, Compensation, and Liability Act, which
authorized EPA to establish the Superfund program to respond to releases of hazardous
substances in the United States to protect human health and the environment.
77
78
40 CFR 300(e)(2)(i)(A)(2)
As required by the Atomic Energy Act, DOE is responsible for cleaning up radioactive
contamination at former nuclear weapons production and test sites in the United States,
including contamination from activities conducted by its predecessor, the Atomic Energy
Commission. However, some of these sites with low levels of radioactive contamination
were transferred from DOE to the Army Corps of Engineers in FY1998 for cleanup under
the Formerly Utilized Sites Remedial Action Program.
CRS-31
millirems of exposure to radiation. DOE has not promulgated an enforceable
regulation for this standard, but has specified it in a non-binding, internal “order.”79
DOE reports that it has used this standard to determine the degree of past cleanup
efforts in the Marshall Islands. The Bush Administration asserts that this standard
should continue to be used to determine whether additional cleanup is necessary.
The stringency of DOE’s cleanup standard is equivalent to the degree of
protection provided by the standard that the Nuclear Regulatory Commission (NRC)
promulgated in 1991 for protection of the public from radiation released from the
operation of nuclear facilities that it licenses, such as civilian nuclear power plants.80
The NRC’s more stringent standard of 25 millirems for cleanup applies to the
facilities that it licenses for operation,81 but not to DOE nuclear weapons sites which
are not under the jurisdiction of the NRC.
Although DOE’s general cleanup standard is 100 millirems, there is precedent
for the Department voluntarily agreeing to EPA’s 15 millirem standard for cleanup
of contaminated soil on at least two former nuclear weapons production sites:
Hanford in Washington State, and Rocky Flats in Colorado. Such decisions are made
on a site-specific basis, as would be the case for the cleanup of contaminated soil in
the Marshall Islands if it were a U.S. territory under the jurisdiction of DOE. The
outcome of such a decision is uncertain and would depend on numerous factors,
including the extent and cost of cleanup that would be required to prevent exposure
to a more stringent degree than the 100 millirem limit that DOE prefers.
Consequently, it is uncertain whether the 15 millirem standard would be applied to
the cleanup of the Marshall Islands, if the cleanup were being done in the United
States.
The extent of cleanup necessary to attain the 15 millirem standard at Hanford
and Rocky Flats likely would be significantly less than in the Marshall Islands on a
proportional basis, because the land uses at Hanford and Rocky Flats are significantly
more restrictive in terms of public access. Consequently, there would be less
likelihood of human exposure. Therefore, a greater concentration of radioactivity
could remain in the soil and still prevent annual exposure from exceeding 15
millirems at these two sites. Rocky Flats will serve as a National Wildlife Refuge
with human access limited to refuge personnel and visitors in certain areas. Hanford
is not planned for unrestricted use, but it will continue its function as a waste
treatment and disposal facility into the foreseeable future, even after cleanup is
complete. Neither site is planned for residential or agricultural use, as the RMI
intends for contaminated areas in the Bikini and Enewetak Atolls.
The application of the15 millirem standard to the cleanup of Hanford and Rocky
Flats does not necessarily set a precedent for removing radioactive soil to the degree
that the RMI wishes. Some therefore may argue that a 15 millirem standard has been
79
Department of Energy. Office of Environment, Safety, and Health. Radiation Protection
of the Public and the Environment. DOE Order 5400.5. Amended January 7, 1993.
80
10 C.F.R. 20
81
10 C.F.R. 20.1402
CRS-32
applied to cleanup in the United States to the extent that the degree of cleanup
necessary to achieve it is practical. Others may advocate that the 15 millirem
standard should be applied in all cases to protect human health, regardless of the
degree of cleanup that would be needed to limit exposure to that level. The Bush
Administration opposes the use of the 15 millirem standard in the Marshall Islands
and advocates the continued use of the 100 millirem standard, discussed below.
Bush Administration Viewpoint on Marshall Islands Cleanup
Standard. In the State Department’s report, the Bush Administration argues that
the 100 millirem standard is the level of protection that is generally applicable in the
United States, and that the United States therefore should not pay for cleaning up the
Marshall Islands to a more stringent level. However, the report also acknowledged
that “There are multiple U.S. federal standards applied to various cleanups that cover
a wide range of doses but in general, they tend to control doses to as far below the 1
mSv [100 millirems] per year limit as is practical.”82 Both the EPA and NRC
cleanup standards are more stringent and more recent than the 100 millirem standard
that the Administration advocates. Although the NRC standard does not apply to
nuclear weapons test sites, the EPA standard could be applied to the cleanup of test
sites in the United States at DOE’s discretion. The State Department report did not
explain the Administration’s rationale for not applying EPA’s stricter standard to the
cleanup of the Marshall Islands.
In advocating the use of the 100 millirem standard, the Administration did not
present an alternative cost estimate in the State Department report to conduct
additional environmental cleanup in the Marshall Islands. Presumably, an estimate
is not provided because the Administration argues that no cleanup is necessary to
attain that level of protection. The Administration asserts that medical tests indicate
current human doses of radioactive isotopes in the Marshall Islands typically do not
result in internal exposure in excess of15 millirems above local natural background
levels. These tests measure radioactive material that the human body has absorbed.
The Administration argues that the actual dose of radiation absorbed by those tested
does not exceed the 15 millirem standard that the RMI wishes to use for cleanup, and
is far less than the 100 millirem standard that it recommends, and concludes that
additional remediation in the Marshall Islands is therefore not necessary.
Disagreement Regarding Areas of Contamination. There have been
numerous surveys of radioactive contamination in the Marshall Islands since nuclear
weapons tests ceased. Residents of the islands have expressed longstanding concern
as to whether these surveys have identified all contaminated areas. The RMI
commissioned the Nationwide Radiological Survey in 1994, which was funded by
the United States.83 Many have noted this survey as being the most comprehensive
effort to examine levels of radioactivity in soil on islands potentially affected from
past fallout, including Bikini, Enewetak, Rongelap, and Utrik Atolls.
82
U.S. Department of State, Report Evaluating the Request of the Government of the
Republic of the Marshall Islands, op. cit., p. 37.
83
The findings of the survey are available online from the Baylor College of Medicine at
[http://radefx.bcm.tmc.edu/marshall_islands].
CRS-33
The findings of this survey were that levels of radioactivity rise with increasing
latitude, identifying the greatest contamination in the northernmost islands. Based
on the survey’s findings, an independent scientific advisory panel concluded that the
level of radioactivity in areas inhabited at that time did not pose a significant health
risk, but that some cleanup likely would be necessary for certain islands if they were
to be resettled or if foods grown on them were to be consumed. The RMI disagreed
with these findings based on criticisms regarding accuracy, completeness of data, and
credibility of the authors, and claimed that more contaminated areas do exist that
pose a health risk. In response, the advisory panel supported the survey’s findings,
which were upheld by scientific peer review.
The RMI continues to dispute the findings of the 1994 survey, and asserts that
potentially harmful contamination is present across a greater area and at lower
latitudes, warranting further cleanup. The RMI’s petition for compensation for
Enewetak Atoll advocated that more contamination surveys are needed to fully
identify all areas in need of cleanup to protect the residential population. The
Tribunal’s compensation decision included $4.5 million to fund such surveys, as part
of the estimated cost of environmental restoration. The Tribunal’s compensation
decision for Bikini Atoll did not specify the costs to perform additional surveys of
contamination on those islands.
The Bush Administration supports the findings of the 1994 survey and argues
that cleanup of a broader area is therefore not needed to protect the residents of the
islands. However, the Administration appears to base its conclusion on the
assumption that unoccupied areas with radioactive contamination would not be
resettled. The Administration has acknowledged that certain areas in the northern
atolls are contaminated to a degree that warrants restrictions on land use, stating
“....some islands may never be suitable for communities or food gathering and should
remain off limits....”84 At the same time, the Administration indicated that “.... most
historically inhabited islands in the northern atolls could be resettled under specific
conditions.”85 However, it did not specify what those conditions might be, or
whether the concentration of radioactivity and potential pathways of exposure were
examined to determine if cleanup would be necessary to allow resettlement.
If resettlement in currently unoccupied areas were to occur, cleanup may be
necessary if the degree of contamination would result in annual exposure to radiation
in excess of either the 100 millirem or 15 millirem standard, depending on the
concentration of radioactivity and pathway of exposure. Continuing efforts to
understand the human health effects of radioactive contamination in the Marshall
Islands also possibly could reveal that remediation is necessary to protect the
residents in currently occupied areas. For example, if ongoing medical tests
administered by the Department of Energy’s Lawrence Livermore National
Laboratory were to reveal that radiation doses are higher in currently settled areas
than present data suggest, decisions could be needed as to whether remediation may
be warranted, even if access to unoccupied areas remained restricted.
84
U.S. Department of State, Report Evaluating the Request of the Government of the
Republic of the Marshall Islands, op. cit., p. iii.
85
Ibid.
CRS-34
Legal Issues86
Litigation Involving Inhabitants of the RMI. In the early 1980s, fourteen
different groups of litigants representing approximately 5,000 inhabitants of the
Marshall Islands brought cases in the United States Court of Claims against the
United States to recover damages said to result from United States nuclear weapons
testing.87 The litigants were from three different groups: inhabitants of Bikini Atoll,
inhabitants of Enewetak Atoll, and inhabitants of atolls and islands that were not
used as atomic test sites. The Court handled the three different groups separately,
with the cases in the third category being consolidated. Although these cases were all
ultimately dismissed for the reasons discussed below, there are indications that at
least some of the litigants are seeking to file suit again.
At the time the cases were filed in the United States Court of Claims, the United
States and the government of the emerging Republic of the Marshall Islands were
negotiating the Compact of Free Association. The cases were suspended for a time
to avoid interference with the negotiations, and when the litigation was allowed to
resume, the government moved to dismiss. In the case involving Bikini Atoll
inhabitants,88 the court held that the plaintiffs had stated claims sufficient to invoke
the jurisdiction of the court,89 that the sovereign immunity of the United States had
been waived as to the claims, and that at least some of plaintiff’s claims would
appear to survive a statute of limitations bar.90 While making no findings as to the
validity of the claims, the court allowed the plaintiffs to move forward on the theory
that there had been takings in violation of the Fifth Amendment91 and breaches of an
implied-in-fact contract that arose between the people of Bikini and the United
States.92
In the case involving the inhabitants of the Enewetak Atoll, it was determined
that the statute of limitations barred the taking claims of the Enewetak people, that
certain other claims were without merit, but that the complaint had stated a breach
of contract claim within the jurisdiction of the court.93 The Court held that the claim
that there was a breach of an implied-in-fact contract between the inhabitants and the
86
Prepared by Kenneth Thomas, Legislative Attorney.
87
For a discussion of the details of these cases, see Juda v. United States, 13 Cl. Ct. 667
(1987). According to the Court of Claims, the suits claimed damages which ranged from
$450 million to $600 million.
88
Juda v. United States, 6 Cl. Ct. 441 (1984).
89
See The Tucker Act, 28 U.S.C. § 1491(a)(1) (1982).
90
28 U.S.C. § 2501 (1982).
91
The plaintiffs characterized the takings portion of its case as involving the “temporary”
takings of lands on the atoll based either on the removal of the inhabitants by the United
States government or on the resultant contamination. Juda v. United States, 6 Cl. Ct. at 449.
92
The plaintiffs argued that the actions of the United States created an implied-in-fact
contract which imposed a fiduciary responsibility on the government to protect the health,
well being and economic condition of the Bikini people. Id. at 449.
93
Peter v. United States, 6 Cl. Ct. 768, 773-779 (1984).
CRS-35
United States was not barred by sovereign immunity, and that such claims were
sufficient to compel a denial of a motion to dismiss.94
In the consolidated cases involving plaintiffs who were not on the Bikini or
Enewetak islands, it was decided that the complaints of an unlawful taking were
within the jurisdiction of the court and were not barred by the statute of limitations.95
Further, the United States’ motion to dismiss was denied as to the takings claims,96
although it was allowed as to all other claims of these plaintiffs.97
Around the time of these rulings, the Compact of Free Association was agreed
to by the United States and RMI. A plebiscite approving the agreement was held, and
a Joint Resolution to implement the Compact was passed by Congress.98 Section 177
of the Compact provides that the United States accepts responsibility for
compensation owing to the citizens of the Marshall Islands as a result of nuclear
testing between June 30, 1946, and August 18, 1958. This section further provides
that compensation shall be determined based on a separate agreement with RMI.
Pursuant to Section 177, this separate agreement between RMI and the United
States was negotiated, establishing a Nuclear Claims Tribunal to provide for the
settlement of nuclear testing claims. In conjunction with these provisions, however,
Article XII of the Section 177 Agreement provided that (1) all claims related to the
nuclear testing program shall be terminated; (2) no court of the United States shall
have jurisdiction to entertain claims relating to the nuclear testing program; and (3)
any such claims pending in the courts of the United States shall be dismissed. Based
on these provisions, the United States again filed motions to dismiss the various
cases. This time, it argued that the claims were now non-justiciable because they
involved a political question relating to the foreign affairs powers of the United
States, and because the Section 177 Agreement divested the court of subject matter
jurisdiction.
In response to this motion, plaintiffs made a number of arguments, some of
which were rejected by the Court of Claims and subsequently by the United States
Court of Appeals for the Federal Circuit.99 For instance, the plaintiffs argued that
94
Id. at 779-781.
95
Nitol v. United States, 7 Cl. Ct. 405, 412-14 (1985).
96
Id. at 415.
97
Id. at 415-16.
98
Compact of Free Association Act of 1985, Pub. L. No. 99-239 (1986).
99
The appeals were from the final judgments of the Claims Court in Peter v. United States,
13 Cl. Ct. 691 (1987), and Nitol v. United States, 13 Cl. Ct. 690 (1987), dismissing the
complaints of inhabitants of the Enewetak, Rongelap, and other Marshall Islands Atolls. In
dismissing these complaints, the Claims Court relied on its decision in Juda v. United States,
13 Cl. Ct. 667 (1987). Although the plaintiffs in the Juda case also appealed, that appeal was
dismissed with prejudice upon the unopposed motion of claimants, following the enactment
of special legislation which appropriated funds for the benefit of the People of Bikini. See
People of Bikini, Enewetak, Rongelap, Utrik & Other Marshall Islands Atolls v. United
(continued...)
CRS-36
while the Compact had been agreed to by the United States and RMI, the United
Nations had not agreed to terminate the trust relationship between the United States
and the Trust Territories, and that the plaintiffs’ rights could not be terminated
without this approval. The Court of Claims, however, rejected this argument.100
Various other legal arguments made by the plaintiff were also rejected.101
The Court, however, declined to reach a number of other issues. One such
argument made by the plaintiffs was related to the concept of “espousal.” Espousal
occurs when the government of one country asserts the private claims of its nationals
against another sovereign.102 In such cases, it is established international practice to
settle these claims by international agreements. Here, the newly formed RMI appears
to have “espoused” the claims of its citizens against the United States for damages
from nuclear testing, and then settled those claims under the Section 177 agreement.
As part of the settlement of the espoused claim, RMI agreed to waive the legal
rights of its citizens to bring suit in the United States for such damages. Normally,
such actions by a sovereign would be sufficient to extinguish claims against another
nation. However, the plaintiffs raised an argument that this waiver was not valid as
to them, because the injury occurred before the claimants were citizens of RMI.103
This argument is called the “continuous nationality” rule, a principle of international
law which provides that a state does not have the right to ask another state to pay for
damages to its citizens if they were not its citizens at the time of the loss or
damage.104 The rationale behind this doctrine is to prevent persons from obtaining
citizenship in one state in order to use that nation’s powers of espousal to pursue
their claims against another state. Under this argument, RMI lacked the legal
capacity to espouse plaintiffs’ claims, and so the claims would not have been settled
by the implementation of the Compact.105
99
(...continued)
States, 859 F.2d 1482 (Fed. Cir. 1988).
100
Juda v. United States, 13 Cl. Ct. at 683. Subsequent to this decision, the United Nations
Security Council voted to terminate the U.N. Trusteeship Agreement covering the Marshall
Islands, apparently making this argument even less tenable.
101
Some plaintiffs suggested that the Section 177 Agreement did not have the force of a
statute of the United States because it was not embodied verbatim in any act of Congress,
and the specific terms were not enacted separately. The Court of Claims, however,
determined that the section 177 Agreement had the force and effect of law, as section 177
of the Compact incorporated the Section 177 Agreement by reference. Id.
102
Jennifer Joseph, POWs Left in the Cold: Compensation Eludes American WWII Slave
Laborers for Private Japanese Companies, 29 Pepp. L. Rev. 209, 221 (2001). The doctrine
of espousal is based on the traditional view that “only states are subject to international
law.” Id.
103
The plaintiffs made a statutory argument that if the “espousal claim” was not supported
under precepts of international law, then subsequent provisions limiting federal court
jurisdiction over the claims were not operative. Juda v. United States, 13 Cl. Ct. at 684-686.
104
8 M. Whiteman, Digest of International Law 1234, 1241 (1970).
105
Significantly, the United States follows the doctrine of “continuous nationality.” 13 Cl.
(continued...)
CRS-37
This issue was analyzed by the Court of Claims in considering whether the
Bikini Atoll plaintiffs could continue their law suit. The court, however,
distinguished the facts of the cases from that doctrine. The issue, the court indicated,
was not whether naturalized citizens could bring claims from a forum that they had
chosen for their convenience. Rather, the issue was whether the inhabitants of an area
which was under differing forms of government could be adequately represented by
the existing government. The court indicated that the question of whether the
“continuous nationality” rule should be applied to an emerging state seeking to
espouse claims arising before its creation was a novel and unexplored area in
international law. Consequently, the court deferred a decision on this issue, deciding
the case on other grounds.106 Thus, if these cases are again pursued, it seems likely
that this issue would be explored further.
Such an exploration might consider the genesis of the “continuous nationality”
rule. The rule is considered to be an outgrowth of the broader international law rule
that a state may not espouse a claim on behalf of someone who is not its national.
The “continuous nationality” rule merely provides that this general rule must be
satisfied both at the time of injury and continuously thereafter.107 However, it is not
clear that the doctrinal basis for this latter rule is strong as regards the instant case.
First, the “continuous nationality rule” appears related to the traditional reluctance
of nations to espouse claims of individuals with whom they have little or no
connection. That rationale may not be strongly applicable in the instant case, as the
majority of the injured parties are likely to have been citizens of RMI since that
state’s inception. Second, the doctrine appears to arise from various restrictive
interpretations of bilateral treaties. For instance, where a treaty establishing a claims
commission did not define when a person becomes a national, it was assumed that
the parties intended for that term to be construed narrowly to exclude persons who
were not nationals when an injury occurred. Here, however, RMI and the United
States clearly intended the espousal specified in the Compact to extend to the
plaintiffs.108 Consequently, it is not clear how a court would apply the “continuous
nationality” doctrine to an interpretation of the Compact.
The Court also considered the argument that limiting the jurisdiction of the
court from considering the plaintiffs’ case was in violation of the Constitution. Under
this argument, a blanket withdrawal of access to a judicial forum deprives plaintiffs
of all judicial remedies for violation of their constitutional rights under the Fifth
105
(...continued)
Ct. at 686.
106
Id. (finding that pursuing these issues was premature until the claims procedures
established under the Section 177 agreement were implemented and completed.)
107
Matthew S. Duchesne, The Continuous-Nationality-of-Claims Principle: Its Historical
Development and Current Relevance to Investor-state Investment Disputes, 36 Geo. Wash.
Int’l L. Rev. 783, 788 (2004).
108
It should noted, further, that the United States and European sometimes invoke the
“Vattelian fiction” to defeat this rule, arguing that where an injury to an individual can also
be construed as an injury to the state, then the state can espouse a claim to protect its own
international rights. Id. at 791.
CRS-38
Amendment, which in itself gives rise to a taking of plaintiffs’ causes of action in
violation of the Fifth Amendment.109 The United States responded, however, by
noting that the Tribunal established by the Section 177 Agreement provided a
“reasonable, certain and adequate provision for compensation”110 of the taking.
The Court of Claims concluded that, in light of the Section 177 Agreement, it
was premature to address the above arguments, and that the question of whether the
alternative procedures provided by Congress were adequate would be dependent
upon the amount and type of compensation. Thus, whether the settlement provided
“adequate” compensation could not be determined at that time. Consequently,
because the jurisdiction of the Court of Claims had been withdrawn by the Congress,
the court dismissed the case.
Finally, it should be noted that if the plaintiffs from these cases file suit again,
it is likely that the United States would argue that the case represented a political
question, and should be resolved by the Executive Branch, not the courts.111 The
political question doctrine, first recognized in Marbury v. Madison,112 stands for the
tenet that certain political questions are by their nature committed to the political
branches and to the exclusion of the judiciary. The application of this doctrine in this
context, however, is unclear. It is true that the Supreme Court has made sweeping
statements that all questions touching foreign relations are political questions.113
However, the issue in the instant case does not relate directly to the United States’
relationship to a foreign country, but rather with the relationship of the United States
to persons previously under its stewardship. Further, the issue before the Court is not
the legitimacy of the Compact with RMI, but is interpretation.114 Consequently, the
ultimate shape of the United States’ political question argument in this situation is
unclear.
109
See United States v. Klein, 80 U.S. 128 (13 Wall) (1871); Lynch v. United States, 292
U.S. 571 (1934); Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948), cert.
denied, 335 U.S. 887 (1948). For further discussion of this issue, see CRS Report RL32171,
Limiting Court Jurisdiction Over Federal Constitutional Issues: “Court-Stripping,” by
Kenneth Thomas.
110
Regional Rail Reorganization Cases, 419 U.S. 102, 124-25 (1974).
111
Juda v. United States, 13 Cl. Ct. at 669.
112
5 U.S. (1 Cranch) 137, 164 (1803).
113
Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918) (“The conduct of the foreign
relations of our Government is committed by the Constitution to the Executive and
Legislative — ‘the political’ — Departments of the Government, and the propriety of what
may be done in the exercise of this political power is not subject to judicial inquiry or
decision.”) Id.
114
See Baker v. Carr, 369 U.S. 186 , 211-212 (1962).
CRS-39
Appendix A. List of Major Legislation Authorizing or
Appropriating Compensation for Nuclear Testing, 1964-2004115
Year
Legislation
Atoll
Purpose
Authorizationa or
Appropriation
1964
P.L. 88-485
Rongelap
personal injury
compensation
1975
P.L. 94-34
Bikini
resettlement trust $3 million
fund for people of
Bikini Atoll
1976
P.L. 94-367
Enewetak
radiological
cleanup
$20 million, plus
military
equipment and
personnel
1977
P.L. 95-134
Enewetak
rehabilitation and
resettlement
$12.5 million
1977
P.L. 95-134
Rongelap and
Utrik
heirs or legatees
of individuals
who died as a
result of a
thermonuclear
detonation
$100,000
1977
P.L. 95-134
Utrik
compensation for $1,000 per
exposure to
resident as of
radioactive fallout March 1, 1954
($157,000 est.)
1977
P.L. 95-134
Rongelap and
Utrik
personal injury
“compassion”
compensation
115
$950,000
$25,000 to each
resident as of
March 1, 1954
who suffered from
a thyroid problem
or radiationrelated cancer
($1,083,000)
For some compensation programs listed in Appendix A, congressional authorizations
may not have been fully funded; in other programs, spending remains unaccounted for. A
sum of approximately $398 million is calculated by adding up the authorizations,
appropriations, and estimations in the table. Funding for DOE radiological and health
programs between 1954 and 2004 ($150 million) brings the total to $548 million. This
figure represents a rough estimate of U.S. nuclear test compensation to the RMI. Other U.S.
compensation not provided in this table include Department of the Interior-administered
health care and USDA food programs prior to 1986 and $500,000 in cash and trust funds to
the peoples of Bikini and Enewetak in 1956.
CRS-40
Year
Legislation
Atoll
Purpose
Authorizationa or
Appropriation
1977
P.L. 95-348
Bikini
appropriations for unspecified
the rehabilitation
and resettlement
of Bikini Atoll
and Kili Island
1978
P.L. 95-348
Bikini
supplement to
trust fund
$3 million
1979
P.L. 96-126
Bikini
ex gratia payment
to the people of
Bikini
$1.4 million
1980
P.L. 96-205
Rongelap and
Utrik
personal injury
compensation
$25,000 to each
individual who
suffered radiationrelated injury or
harm
1980
P.L. 96-597
Bikini and
Enewetak
technical,
unspecified
agricultural, food,
and transportation
assistance for
resettlement
1982
P.L. 97-257
Bikini
supplement to
trust fund
$20 million
1986
Compact of Free
Association; P.L.
99-239
All atolls
nuclear claims,
health care,
medical
surveillance and
radiological
monitoring, trust
funds for the four
atolls, food and
agricultural
programs
$150 million
1986- P.L. 99-239; P.L.
108-188 (20042023)
Enewetak
agricultural
maintenance
program
$1.1-1.3million
per year ($21
million est., 19862004; $9.5 million
est. , 1980-1985)
1986- P.L. 99-239; P.L.
108-447
Four atolls
USDA food
program
$610,000 per year
($11.6 million
est., 1986-2004)
1986
Enewetak (Enjebi) establish trust
fund
P.L. 99-239
$7.5 million
CRS-41
Year
Legislation
Atoll
Purpose
Authorizationa or
Appropriation
1986
P.L. 99-239
Rongelapb
rehabilitation and
resettlement
$13 million
1988
P.L. 99-239; P.L.
100-446
Bikini
settlement of
claims and
supplement to
trust fund
$90 million
1991
P.L. 102-154
Rongelap
establishment of
$2 million
resettlement and
rehabilitation trust
fund
1996
P.L. 104-134
Rongelapb
rehabilitation and
resettlement
$26.4 million
2005- P.L. 108-188
2007
Rongelapb
rehabilitation and
resettlement
$5.3 million
Sources: Agreement Between the Government of the United States and the Government of the
Republic of the Marshall Islands for Implementation of Section 177 of the Compact of Free
Association, Appendix A; U.S. Department of State, Report Evaluating the Request of the Government
of the Republic of the Marshall Islands Presented to the Congress of the United States of America,
November 2004, Appendix B; Nuclear Testing in the Marshall Islands: A Chronology of Events
[http://www.rmiembassyus.org/Nuclear%20Issues.htm#Chronology].
a. Some authorized amounts may not have been fully appropriated.
b. Part of a $45 million agreement between the United States and the people of Rongelap for purposes
of resettlement, signed on September 19, 1996.
CRS-42
Appendix B. Comparison of Radiation Compensation Amounts
RECA
Downwinders
RMI Nuclear Claims
Tribunal
Leukemia (except chronic
lymphocytic leukemia)
$50,000
$125,000
Cancer of the lung
$50,000
$37,500
Multiple myeloma
$50,000
$125,000
Lymphomas (except Hodgkin’s
disease)
$50,000
$100,000
Cancer of the thyroid
$50,000
$75,000 (recurrent
$50,000 (non-recurrent)
Cancer of the breast
$50,000
$100,000
(recurrent/mastectomy)
$75,000 (nonrecurrent/lumpectomy)
Cancer of the esophagus
$50,000
$125,000
Cancer of the stomach
$50,000
$125,000
Cancer of the pharynx
$50,000
$100,000
Cancer of the small intestine
$50,000
$125,000
Cancer of the pancreas
$50,000
$125,000
Cancer of the bile ducts
$50,000
$125,000
Cancer of the gall bladder
$50,000
$125,000
Cancer of the salivary gland
$50,000
$50,000 (malignant)
$37,500 (benign, surgery)
$12,500 (benign, no
surgery)
Cancer of the urinary bladder
$50,000
$75,000
Cancer of the brain
$50,000
$125,000
Cancer of the colon
$50,000
$75,000
Cancer of the ovary
$50,000
$125,000
Cancer of the liver (except if
cirrhosis or hepatitis B is
indicated)
$50,000
$125,000
Cancer of the central nervous
system
not covered
$125,000
Cancer of the kidney
not covered
$75,000
Compensable Disease
CRS-43
Compensable Disease
RECA
Downwinders
RMI Nuclear Claims
Tribunal
Cancer of the rectum
not covered
$75,000
Cancer of the cecum
not covered
$75,000
Cancer of the bone
not covered
$125,000
Tumors of the parathyroid gland
not covered
$50,000 (malignant)
$37,500 (benign, surgery)
$12,500 (benign, no
surgery)
Meningioma
not covered
$100,000
Non-malignant thyroid nodular
disease
not covered
$50,000 (total
thyroidectomy)
$37,500 (partial
thyroidectomy)
$12,500 (no thyroidectomy)
Unexplained hypothyroidism
not covered
$37,500
Severe growth retardation due to
thyroid damage
not covered
$100,000
Unexplained bone marrow failure
not covered
$125,000
Radiation sickness diagnosed
between June 30, 1946, and Aug.
18, 1958
not covered
$12,500
Beta burns diagnosed between
June 30, 1946, and Aug. 18, 1958
not covered
$12,500
Severe mental retardation
(provided born between May and
Sept. 1954, and mother on
Rongelap or Utirik any time in
Mar. 1954)
not covered
$100,000
Unexplained hyperparathryoidism
not covered
$12,500
Non-melanoma skin cancer in
individuals diagnosed with beta
burns (see above)
not covered
$37,500
Sources: Radiation Exposure Compensation Program (RECA), Department of Justice
[ h t t p : / / www. u s d o j . g o v / c i v i l / t o r t s / c o n s t / r e c a / ] ; N u c l e a r C l a i m s T r i b u n a l
[http://www.nuclearclaimstribunal.com/].
CRS-44
Appendix C. Payments from Earnings and Principal of Nuclear Claims Fund (1986-2004) and Current Status
Nuclear Claims
Tribunal
Bikini Trust Fund
Enewetak Trust Fund
Rongelap Trust Fund
Utrik Trust Fund
Other
Payments
$71.7 million paid out
of $87.4 million
awarded ($45.75
million from Claims
Fund disbursements +
$25.9 million from
Fund corpus, 20012004); $3.9 million in
partial payment of NCT
propery awards to the
peoples of Bikini and
Enewetak.
$75 million disbursed
in quarterly amounts of
$1.25 million for fifteen
years (1986-2001) of
which half placed in
trust
$48.75 million
disbursed in quarterly
amounts of $812,500
for fifteen years (19862001) of which half
placed in trust
$37.5 million
disbursed in quarterly
amounts of $625,000
for fifteen years (19862001) of which half
placed in trust
$22.5 million
disbursed in quarterly
amounts of 375,000 for
fifteen years (19862001) of which half
placed in trust
$34.5 million for health
care system and
programs (1986-2003);
$3 million for medical
surveillance and
radiological monitoring
(1986-1988), and other
programs; $7.5 million
for NCT operating
costs; $10 million for
other administrative
costs and technical
support.
Status
remainder of $15.7
million requested in
Changed Circumstances
Petition
trust fund worth $55
million in 2004.
trust fund worth $31
million in 2004.
trust fund worth $30
million in 2004.
trust fund worth $17
million in 2004.
health care and
radiological monitoring
programs continue on
discretionary funding
basis
Total Paid from Nuclear Claims Fund (2005): $314 million
Remainder of Fund (2005): $4 million
Outstanding Personal Injury Awards: $15.7 million as requested in Changed Circumstances Petition
Sources: Allen P. Stayman, “The Resettlement, Relocation, and Radiological Rehabilitation of the Bikini, Enewetak, Rongelap, and Utrik Atolls,” Testimony before the House
Committee on Resources, May 11, 1999; Agreement Between the Government of the United States and the Government of the Republic of the Marshall Islands for Implementation of
Section 177 of the Compact of Free Association; Nuclear Claims Tribunal.
CRS-45
Appendix D. Marshall Islands Time Line
U.S. Nuclear Testing and Remediation on the Marshall Islands
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1946: Operation Crossroads: Prior to the test, 167 Bikinians are evacuated
to Rongerik Atoll, where they face severe food shortages.
1951: Operation Greenhouse begins at Enewetak. 145 Local inhabitants are
moved to Ujelang Atoll prior to the test.
1952: First detonation of a hydrogen device (Operation Ivy) over Enewetak.
1954: Bravo test commences. Over 250 Marshall Islanders are exposed to
radioactive ash on Rongelap and Utrik atolls for 2-3 days. They are then
relocated, where they face food shortages.
1955: Utrik people return to their atoll.
1956: U.S. government gives Enewetak $25,000 in cash and a $150,000
trust fund; Bikini receives $25,000 in cash and a $300,000 trust fund.
1957: People of Rongelap return to their atoll.
1958: Nuclear Testing terminated.
1968: Bikini is declared safe for habitation — 139 Bikinians return.
1978: Bikini residents are re-evacuated to Kili Island after new studies
reveal unsafe levels of radiation on their atoll.
1980: Enewetak people return to their native atoll following a $218 million
cleanup effort.
1981: The native inhabitants of Bikini sue the United States for $450
million.
1985: The people of Rongelap are re-evacuated after new studies reveal
unsafe levels of radiation.
1986: The Compact of Free Association is enacted.
1990: Enewetak islanders file a lawsuit against the United States.
1991: The Nuclear Claims Tribunal grants its first compensation awards.
1995: Findings of a Marshall Islands government-commissioned report, the
Nationwide Radiological Study (Simon and Graham), are rejected by the
RMI Parliament.
2000: RMI government submits Changed Circumstances Petition.
2003: U.S. Congress approves Compact amendments.
2004: Resettlement of Rongelap begins.
Sources: RMI Embassy, Nuclear Testing on the Marshall Islands: A Chronology of Events
(August 1996); Catherine Page, “Marshall Islands Still Burdened with Legacy of American
Nuclear Testing and Radioactive Poisoning,” The Citizen, February 7, 2000.
CRS-46
Appendix E. Map of Marshall Islands
North Pacific
Ocean
Taongi
Marshall Islands
Bikini
Enewetak
Bikar
Rongelap
Utirik
R
at
ak
Rongerik
Wotho
C
ha
in
Wotje
Ujelang
R
Ujae
al
ik
C
ha
in
Kwajalein
Namu
Majuro
Ailinglapalap
Majuro
Namorik
Jaluit
Maelolap
Arno
Mili
Knox
Ebon
Source: Magellan Geographix. Based on information provided by the U.S. Department of State.
Adapted by CRS. (K.Yancey 3/17/05)
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