Republic of the Marshall Islands Changed Circumstances Petition to Congress
Released: 2005-08-30T00:00:00

Summary:
In September 2000, the Republic of the Marshall Islands (RMI) government submitted to theUnited States Congress a Changed Circumstances Petition related to U.S. nuclear testing on theMarshall Islands atolls of Bikini and Enewetak during the 1940s and 1950s. The Petition requestsadditional compensation for personal injuries and property damages and restoration costs, medicalcare programs, health services infrastructure and training, and radiological monitoring. Accordingto various estimates, between 1954 and 2004, the United States spent over $500 million on nucleartest compensation and related assistance in the Marshall Islands.
The Petition bases its claims for compensation upon "changed circumstances" pursuant toSection 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. TheSection 177 Agreement granted $150 million as part of a "full and final settlement" of legal claimsagainst the U.S. government, and provided for possible additional compensation, if loss or damagesto persons or property arose or were discovered that could not reasonably have been identified as ofthe 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 theenactment of the Compact -- such as a wider extent of radioactive fallout than previously known ordisclosed and more recent radiation protection standards -- constitute "changed circumstances."
In November 2004, the U.S. Department of State released a report evaluating the legal andscientific basis of the Petition. The report concludes that "the Marshall Islands' request does notqualify as 'changed circumstances' within the meaning of Article IX of the nuclear claims settlementagreement 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 additionalpayments. On May 25, 2005, the House Committee on Resources and the Subcommittee on Asiaand the Pacific of the House Committee on International Relations held a joint hearing on thePetition. On July 19, 2005, the Senate Committee on Energy and Natural Resources held anoversight 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. compensationefforts to date, relevant provisions in the Compact of Free Association, and the ChangedCircumstances Petition . It analyzes several issues related to the personal injury, health care, andproperty damages claims in the Petition. These issues include estimated occurrences ofradiation-related illnesses in the Marshall Islands; the methodology for determining the value of "lostuse" of damaged properties; the appropriate standard of risk (annual dose limit) for determiningcleanup levels; and the extent of radioactive fallout. This report also discusses possible legal optionsfor the RMI in pursuing nuclear test damages claims and identifies policy options for the 109thCongress.

subsections: section_title: Introduction
subsections: section_title: Background
paragraphs: The 109th Congress is considering the Changed Circumstances Petition , submitted to theUnited States Congress by the Republic of the Marshall Islands (RMI), for further compensation fordamages 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 HouseResources Committee, and the House International Relations Committee. On May 25, 2005, theHouse Committee on Resources and the Subcommittee on Asia and the Pacific of the HouseCommittee 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 hearingon 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 millionand $550 million in the Marshall Islands on nuclear test-related compensation and assistance,including health care, medical surveillance and environmental monitoring, cleanup of contaminatedsites, and resettlement efforts. About one-half of this assistance was provided through congressionalex gratia payments. (1) TheCompact of Free Association, which established the Marshall Islands as a "freely associatedstate," (2) extended $150million 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 ordamages to persons or property arose or were discovered that could not reasonably have beenidentified as of the effective date of the agreement and if such injuries rendered the provisions of theCompact "manifestly inadequate." In September 2000, the Marshall Islands government submittedto the United States Congress a Changed Circumstances Petition requesting additional compensationpursuant to the Compact. The Petition requests compensation for personal injury awards, propertydamages (loss of use, restoration costs, and hardships suffered), health services infrastructure, ahealth care program, radiation exposure monitoring, and other programs. 
The Petition justifies its claims of "changed circumstances" largely upon "new andadditional" information since the Compact's enactment -- declassified Department of Energy recordsin the early 1990s that indicated a wider extent of radioactive fallout than previously known ordisclosed and scientific findings that reduced the levels at which exposure to radiation was deemedsafe. As a result of, and in addition to, the above findings, the Petition and accompanying materialsargue that higher than expected health consequences and costs of health care and environmentalcleanup, as well as lower than expected investment returns from the Nuclear Claims Fund, constitutechanged circumstances. Furthermore, according to the Petition's supporting arguments, the NuclearClaims Fund constituted a provisional, "political settlement" rather than a final determination basedupon a conclusive scientific assessment of costs. The Petition contends that the U.S. Congressagreed to retain its authority, through legislation to approve the Compact ( P.L. 99-239 ), toappropriate additional compensation should the need arise. (4) Furthermore, legal counsel for the four nuclear-affected atollsmaintain that U.S. courts left open the possibility that RMI plaintiffs could also return to the courtsif they did not receive adequate compensation from Compact provisions.
The Petition's monetary requests include unpaid Nuclear Claims Tribunal (NCT) personalinjury awards of $15.7 million; unpaid NCT property damages awards to Enewetak Atoll and BikiniAtoll totaling $949 million; $50 million for medical services infrastructure; and $45 million annuallyfor 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 aninteragency group (Departments of State, Energy, and Defense) evaluating the legal and scientificbases of the Petition. (5) Thereport 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 keyscientific claims of the Petition regarding the geographical extent of radioactive fallout, radiationdose 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 sector grants of approximately $16million 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 theCompact, and that the Compact, as amended, was not intended to take account of nuclear testcompensation claims. (7) They add that a large proportion of the expenditures noted in the Administration report supportedU.S. government research into the effects of radiation upon human beings and the environment andbenefitted 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 inthe 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 extentof radioactive fallout. Finally, this report discusses possible legal options for the RMI in pursuingnuclear damages claims. 
section_title: Congressional Policy Options
paragraphs: Congress has several policy options regarding the Marshall Islands' request for additionalcompensation for nuclear damages. These include:
Grant or reject the Changed Circumstances Petition's requests, in whole or inpart, on the basis of the changed circumstances rationale.
Continue congressional ad hoc, ex gratia payments through Department of theInterior appropriations measures.
Enact legislation that would provide for a "full and final settlement" ofclaims.
Allow the federal courts, through an amendment to the Compact of FreeAssociation, to review the judgments of the Nuclear Claims Tribunal and potentially to order theUnited States to pay these awards, in whole or in part. (8) 
section_title: Summary of Analysis
paragraphs: The following sections summarize selected key issues related to the Changed CircumstancesPetition . These issues are analyzed in depth in subsequent sections of the report. The Petition'spersonal injury claims and health care requests are modeled after U.S. programs for compensatingradiation-exposed individuals, and based upon scientific studies establishing the areas of theMarshall Islands in which residents likely have been exposed to dangerous levels of radioactivecontamination. A National Cancer Institute (NCI) study, discussed below, provides support for theneed for compensation. However, as noted below, there is some dispute regarding the portion of theRMI population that has been exposed to radiation from the nuclear weapons tests. 
The Petition's request for compensation to conduct further environmental restoration is basedon a U.S. Environmental Protection Agency (EPA) cleanup standard, and the RMI assertion that thecontamination is more widespread than previous surveys had found. The issue of whether the EPA'sstandard should apply to the cleanup of the Marshall Islands, as well as disagreement over the extentof contamination, are summarized here and examined later in the report. A significant amount ofthe property claim in the Petition is based on the claimants' "loss of use" calculations. This reportprovides an assessment of the methodology employed by the claimants in calculating "loss of use."
Test-Related Cancer Estimates. The NCI inSeptember 2004 estimated that nuclear testing would result in about 530 additional lifetime cancersamong the 14,000 Marshall Islands residents exposed to the testing. NCI also estimated that about5,600 cancers would have occurred in that population without the fallout exposure. Because thecancers 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 thecancers expected in the exposed population have yet to be diagnosed, so additional compensationclaims are likely.
"Loss of Use" Methodology. In general, themethodology used by the NCT to estimate the value of the lost use of the claimants' property isconsidered to be reasonable and appropriate. For several reasons, however, the specific applicationof the methodology -- much of the critical data used, many of the assumptions, and certain statisticalprocedures applied (i.e., the sampling technique and the regression model) -- result in past and futureloss-of-use estimates that appear to be overstated, which leads to possibly excessive total damagesclaimed and awarded by the NCT. The main problem is with the use of inflated average rents peracre, which are estimated by applying an exponential regression model to unrepresentative sampledata that reflect RMI government-influenced rents, rather than competitive, free-market rents. Thiscan lead to an overestimate of not only past loss-of-use, but because estimated rents is a criticalvariable used as an input into future-loss-of-use calculations, a possible overestimate of futureloss-of-use as well. 
The methodology also 1) assumes that more land is lost to use, and for longer periods thanis actually the case, 2) undervalues the rentals on alternative atoll habitation, and 3) assumes thatrecipients of rental proceeds, as consumers and savers, would have saved 100% of the rentalproceeds. Each of these assumptions can lead to an overestimate of past loss of use. 
Cleanup Standards. The RMI argues that a morerecent 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 remainsunchanged and that levels of contamination remain safe according to this standard. For cleanuppurposes, the RMI has adopted the standard established by the EPA for the cleanup of radioactivecontamination at Superfund sites in the United States. This standard limits annual exposure to 15millirems of radiation above natural background levels from all sources. The ComprehensiveEnvironmental 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 UnitedStates to a degree that would be safe for the intended land use of the site. EPA issued its 15 milliremstandard in 1997 as a non-binding guideline for the cleanup of Superfund sites, 11 years after the1986 Compact with the Marshall Islands. This 15 millirem standard is more stringent and morerecent than the 100 millirem standard established by the U.S. Department of Energy (DOE) that wasused 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 isprovided in the United States and that it therefore should be applied to the cleanup of the MarshallIslands. 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 thefeasibility of attaining it at a particular site. Although there is some precedent for applying the 15millirem standard to certain nuclear weapons sites in the United States, such sites generally arecleaned up to DOE's less stringent standard of 100 millirems, which has been used in the MarshallIslands for past cleanup, as noted above. Consequently, the RMI's claim that the 15 milliremstandard would apply to the cleanup of the Marshall Islands if it were done in the United States todayis not necessarily the case. The Bush Administration advocates the continued use of DOE's 100millirem standard and argues that further cleanup is not necessary, citing medical tests indicating thatdoses of radiation among the population are already below this amount.
Contaminated Areas. In addition to the issue ofwhether a more recent radiation protection standard warrants further cleanup, there is disagreementregarding the extent of contamination. There have been numerous surveys of radioactivecontamination in the Marshall Islands since nuclear weapons tests ceased. Residents of the islandshave expressed longstanding concern as to whether these surveys have identified all contaminatedareas. The most exhaustive survey of contamination was performed in 1994. The survey found thatthe greatest contamination was in the northernmost islands not inhabited at that time, and that thelevel of radioactivity in occupied areas was safe. The RMI has disagreed with these findings andclaims that the extent of contamination and health risks were understated. The Bush Administrationsupports the findings of the 1994 survey and argues that further cleanup is not warranted to protectthe residential population. However, if some of the more contaminated northern islands are to beresettled or used for agricultural purposes, further cleanup could be necessary to prevent the risk ofexposure, depending on the concentration of radioactivity deemed safe. 
Litigation Involving Inhabitants of the RMI. Inthe early 1980s, fourteen different groups of litigants representing approximately 5,000 inhabitantsof the Marshall Islands brought cases in the United States Court of Claims against the United Statesto recover damages said to result from nuclear weapons testing. The litigants were from threedifferent groups: inhabitants of the Bikini Atoll, inhabitants of the Enewetak Atoll, and inhabitantsof atolls and islands that were not used as atomic test sites. The court made separate preliminaryfindings regarding each of these. In the case involving Bikini Atoll inhabitants, the court found thata claim of a takings in violation of the Fifth Amendment and of breach of an implied-in-fact contractsurvived a motion to dismiss based, among other things, on a statute of limitations bar. In the caseinvolving the inhabitants of the Enewetak Atoll, it was held that a breach of contract claim surviveda motion to dismiss, as did a takings claim by the plaintiffs who were not on the Bikini or Enewetakislands. Subsequently, the Compact of Free Association was implemented between the United Statesand RMI, and the Nuclear Claims Tribunal was established under Section 177 of that agreement. TheCourt of Claims then concluded that it was premature to address the question of whether thisalternative procedure was adequate to provide compensation for the litigants, and so it dismissed thecases. The RMI argues that the court decision left open the possibility of further compensation --beyond that provided by the Compact. 
section_title: History of U.S. Nuclear Testing in the Marshall Islands(9)
paragraphs: From 1946 to 1958, the United States conducted 67 atmospheric atomic and thermonuclearweapons tests on the Marshall Islands atolls of Bikini and Enewetak. (10) During that time, theMarshall Islands was a district of the United Nations Trust Territory of the Pacific Islandsadministered by the United States. In 1954, "Castle Bravo," the second test of a hydrogen bomb, wasdetonated over Bikini atoll, resulting in dangerous levels of radioactive fallout upon the populatedatolls 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 ofbirth 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, ratherthan only four, were seriously affected. (11) Other analysts counter that the extent of radioactive fallout waslimited to the four northern atolls, and that RMI experts overestimate the link between radiogenicillnesses in the Marshall Islands and the nuclear tests.
In September 2000, the Marshall Islands government submitted to the United States Congressa 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, andradiological monitoring pursuant to the Compact of Free Association. The Compact, promulgatedin 1986 ( P.L. 99-239 ), terminated the United Nations Trust Territory status of the Marshall Islandsand Micronesia and provided a "full measure of self-government" for the peoples of the two islandstates. (12) In March2002, the Senate Energy and Natural Resources Committee and House Resources Committeerequested that an interagency group (U.S. Departments of State, Energy, and Defense) evaluate thepetition and provide Congress with an assessment of its merits following the enactment of theCompact of Free Association Amendments Act ( P.L. 108-188 ). In November 2004, theAdministration released its report evaluating the Petition.
section_title: U.S. Compensation and Assistance(13)
paragraphs: According to one estimate, since 1954, the United States has provided $531 million to theMarshall Islands for nuclear test damages, including compensation payments, environmental cleanupand restoration, and resettlement programs. This total also includes an estimated $138 million inDepartment of Energy (DOE) radiological and health monitoring in the four affected atolls andmedical programs for the residents of Rongelap and Utrik through 2002. (14) The Compact of FreeAssociation established a Nuclear Claims Fund of $150 million for personal injury and propertydamages claims, health care, medical surveillance and radiological monitoring, trust funds for thefour atolls, and quarterly distributions to the peoples of the four atolls for hardships suffered. By oneestimate, since 1964, when major U.S. compensation programs began, Congressional authorizationsfor nuclear test damages total roughly $398 million in payments, not including funding for DOEradiological and health programs. See Appendix A . 
The investment returns on the Fund were expected to generate $270 million over the 15 yearsof the first Compact term while the original $150 million would remain as principal. Section 177provided that the $270 million would be distributed as follows: $45.75 million to the Nuclear ClaimsTribunal (NCT) for monetary awards; $75 million to Bikini Atoll; $48.75 to Enewetak Atoll; $37.5million to Rongelap Atoll; $22.5 million to Utrik Atoll; $30 million for a health care program forthe four affected atolls; $3 million for medical surveillance and radiological monitoring; and $7.5million for NCT operating costs. 
section_title: U.S. Health and Environmental Programs in the RMI
paragraphs: Since the time of the nuclear testing, the United States government has operated nucleartest-related health and environmental programs in the Marshall Islands. Legislation authorizing suchprograms includes P.L. 95-134 , P.L. 96-205 , P.L. 99-239 (the Compact of Free Association Act),and 108-188 (The Compact of Free Association Amendments Act). In addition, the RMI healthsystem is largely supported by U.S. government grants as mandated by the Compact and amendedCompact (Compact II). (15) Beginning in 1954, the Department of Energy's BrookhavenNational Laboratory sent medical teams twice a year to monitor and treat patients of Rongelap andUtrik atolls, who had received acute radiation exposure from the Bravo test. Since 1998, the PacificHealth Research Institute (Honolulu) has administered the Radiological Health Care Programyear-round. The program has two clinics and currently provides medical care to 119 enrolledpersons from Rongelap and Utrik. Those patients who cannot be adequately treated in the RMI arereferred to the Straub Clinic in Honolulu, Hawaii. (16) In addition, since 1972, the Lawrence Livermore NationalLaboratory has conducted environmental and agricultural studies in order to assess radiologicalconditions at Bikini, Enewetak, Rongelap, and Utrik. (17) Since 1986, DOE has budgeted approximately $6.3 million peryear for the above health and environmental programs, with about $1.1 million going to medicalservices. 
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 forresidents 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 theNovember 2004 Administration report, the 177 Health Program, managed since 1987 by TrinityHealth International, a Michigan-based nonprofit health care organization, employs 15 staff andserves nearly 13,500 enrollees. The Compact mandated $2 million per year (1986-2003) for thehealth services. The funding proved to be inadequate, however. Reasons cited include theunexpectedly large enrollment of individuals in the program and the lack of an inflation adjustmentin the funding. The services received no appropriations for FY2004. The ConsolidatedAppropriations Act for FY2005 ( P.L. 108-447 ) provided $1 million for the program. (19) The RMI government hasurged the U.S. government to continue both the DOE and 177 health programs.
Additional Programs for the Nuclear AffectedAtolls. Section 103 of the Compact Act ( P.L. 99-239 ) authorized severalresettlement, agricultural, and food programs. Since 1979, the Department of the Interior hasprovided for the re-vegetation 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 Foodand Agriculture Program, which was funded at an average annual amount of approximately $1.2million 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 amendinglegislation authorized the shipment of U.S. Department of Agriculture (USDA) supplemental foodcommodities to the four affected atolls. The Special Assistance Food Program, re-authorized by P.L.108-188 and costing about $600,000 annually, continues on a discretionary basis under USDAappropriations measures, most recently the Consolidated Appropriations Act for FY2005 ( P.L.108-447 ). 
section_title: Radiation Injury Compensation Programs -- RECA and the Nuclear Claims Tribunal
paragraphs: The Compact of Free Association, Section 177, established a Nuclear Claims Tribunal toadjudicate claims related to the nuclear testing program and provided $45.75 million for paymentof 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 VeteransCompensation Act of 1988 ( P.L. 100-321 ) 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 werepresumably "downwind" from the detonation. Marshall Islands citizens from all atolls and islandswere considered because of the possibility of fallout, low but long-term exposure, and consumptionof produce from nuclear-affected areas. The NCT provides biological children of a mother who wasphysically present at the time of the testing 50% of amounts offered first generation claimants. Asof December 2004, the NCT had paid $71.7 million on personal injury awards totaling over $87million to 1,917 individuals. Over 40% of awardees died before receiving full compensation dueto 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 beenunduly influenced by political pressures or had operated without adequate transparency, in 2002, theMarshall Islands government commissioned former United States Attorney General RichardThornburgh to undertake an independent examination and assessment of the judicial processes usedby the Nuclear Claims Tribunal. The Thornburgh report concluded that the Tribunal: fulfilled thebasic 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; andoperated with a reasonable degree of independence from the Nitijela. (21) 
subsections: section_title: The U.S. RECA Program(22)
paragraphs: The 1990 Radiation Exposure Compensation Act (RECA) provides "compassionate"lump-sum payments to individuals who have contracted certain cancers and other serious diseasesthat are presumed to be the result of their exposure to ionizing radiation from above-ground nuclearweapons testing or from various activities in connection with uranium mining. (23) RECA is administered bythe 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 Sitein the 1950s and early 1960s) who developed one of 13 types of cancer; and (ii) uranium miners incertain states who worked in underground mines between 1947 and 1971 and who developed lungcancer or certain nonmalignant respiratory diseases. Immediately after its enactment, RECA wasamended to include a third category of claimant: government employees and others who participatedon-site in an above-ground test, and who developed one of the same 13 cancers for whichdownwinders may be compensated. (25) RECA was more substantially modified and expanded in2000. (26) The changesincluded 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-siteparticipants may be compensated.
Compensation of Downwinders and On-SiteParticipants. RECA specifies a payment of $50,000 to an individual who wasphysically present in one of the affected areas downwind of the Nevada Test Site during the periodof above-ground testing, (27) and who subsequently contracted one of the following specifieddiseases: 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 whoparticipated in an above-ground test, and who subsequently developed one of the same cancers, areeligible for a payment of $75,000.
Program Administration. Through FY2002, theRadiation Exposure Compensation Program (RECP) received 14,987 claims: 7,915 (52.8%) claimswere approved and paid a total of $530.5 million; 4,418 (29.5%) claims were denied; and theremaining 2,654 (17.7%) claims were pending. A majority of the claims were submitted bydownwinders. Downwinders filed 8,310 claims through FY2002, of which 4,945 (59.5%) wereapproved and each paid $50,000 (for a total of $247.2 million), 1,688 (20.3%) were denied, and theremaining 1,677 (20.2) were pending. Downwinder claims were denied primarily because theclaimant did not have an eligible disease or was not physically present in the affected area during therequired time period. (28) 
Congress makes annual appropriations to the RECA Trust Fund, from which compensationis paid to eligible claimants. Any money remaining in the Trust Fund at the end of the fiscal yearis carried forward to the next fiscal year. Passage of the RECA Amendments of 2000 led to adramatic increase in the number of claims filed and processed. Congress initially appropriated $11million 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 Fundpaid out a total of $108 million in approved claims in FY2001. The National Defense AuthorizationAct for FY2002 mandated appropriations for the RECA Trust Fund for a 10-year period -- FY2002through FY2011 -- up to a specified maximum amount each fiscal year. (29) That eliminated the needfor new congressional action in each of those fiscal years unless Congress determined that additionalfunding was necessary. (30) 
section_title: The Nuclear Claims Tribunal
paragraphs: The Nuclear Claims Tribunal adjudicates claims filed by RMI citizens seeking compensationfor personal injuries and property damage suffered as a result of the U.S. nuclear tests. The Tribunalused RECA as a model in developing its own personal injury compensation program, which beganin August 1991. As with RECA, the Tribunal does not require the claimant to prove a specificcausal link between his or her exposure to radiation and the claimant's injury. The claimant mustsimply 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, whichthe Tribunal presumes to be caused by radiation exposure.
Initially, the Tribunal adopted a list of 25 compensable diseases, including the cancers listedunder RECA, and other conditions for which there was credible evidence showing a significantstatistical relationship between exposure to ionizing radiation and the subsequent development ofthe disease. In determining which diseases to included on the list, the Tribunal reviewed the findingsof 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 healtheffects.
The Tribunal reviews the list of compensable diseases each year and considers any newscientific evidence on diseases linked to exposure to ionizing radiation. As a result of that reviewprocess, the list has been amended on several occasions since 1991 and now includes a total of 35medical conditions. Appendix B compares the dollar amounts awarded for the various compensablediseases covered under RECA and the Tribunal's program. Unlike RECA, which pays the sameamount for all downwinder claims (i.e., $50,000), the Tribunal awards differing amounts for thevarious diseases on its list. (31) 
section_title: National Research Council Report on RECA
paragraphs: On April 28, 2005, the National Research Council (NRC) released a report on the RadiationExposure Compensation Program, in which it recommended against adding any additional diseasesto the list of cancers for which downwinders and on-site participants may be compensated. (32) Instead, the NRCrecommended that Congress establish new scientific criteria for decisions about awarding federalcompensation 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 areaand that people living far beyond the counties currently designated under RECA may have beenexposed to higher amounts of radiation. To be equitable, the NRC recommended that individualclaims be based on probability of causation (PC). This method employs a formula to determinewhether 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, thencompensation is awarded. The NRC also recommended that the costs of screening, diagnosis, andtreatment of compensable diseases be covered for awardees. Noting the generally low levels ofexposure from fallout and the fact that ionizing radiation is not a potent cancer-causing agent, thereport concluded that any changes in the eligibility criteria for compensation probably would resultin few additional successful claims.
section_title: The Changed Circumstances Petition(33)
paragraphs: The Compact of Free Association between the United States and the Republic of the MarshallIslands (RMI), Section 177, and the Agreement for the Implementation of Section 177 created a $150million Nuclear Claims Fund for four "most affected" Marshall Islands atolls and their peoples. (34) The Compact, which wentinto effect in 1986, settled and terminated nuclear compensation lawsuits by Marshall Islandersagainst the United States government that were pending in U.S. courts, and established the NCT toadjudicate claims and grant awards from the Nuclear Claims Fund. However, Article IX of the 177Agreement (the Changed Circumstances Clause ) provided for possible additional compensation, ifloss or damages to persons or property arose or were discovered that could not reasonably have beenidentified as of the effective date of the agreement (1986) and if such injuries rendered the provisionsof 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 thetime of the Compact negotiations, RMI officials and other experts reportedly argued that the fullextent of personal injury and private property damages was not known. Congress hence agreed toretain its authority, through legislation to approve the Compact ( P.L. 99-239 ), to appropriateadditional compensation should the need arise. (35) In addition, legal counsel for the four atolls maintain that U.S.courts left open the possibility that RMI plaintiffs could also return to the courts if they did notreceive adequate compensation from the NCT and the Nuclear Claims Fund. (36) 
Finally, the RMI government seeks remedies on the basis of "equity" or compatibility withthe U.S. government's compensation program for radiation-exposed civilians and with its standardsfor cleaning up radiation-contaminated facilities. Government officials claim that the RMI hasreceived only a fraction of the amount of money the U.S. government has spent on areas in theUnited States exposed to radiation during the Cold War.
subsections: section_title: Petition Requests
paragraphs: Unpaid NCT personal injury awards of $15.7 million (due to lack offunds).
Unpaid NCT property damages awards (due to lack of funds) to EnewetakAtoll ($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 forthose exposed to radiation during and after the tests and for NCT personal injury claimants. (38) 
An extension of DOE medical surveillance and environmental monitoringprogram for exposed groups and areas for 50 years.
Capacity-building, occupational safety, and "nuclear stewardship:" programsto enable the RMI to conduct its own research in radiation-related fields, promote the safety ofMarshallese workers involved in environmental remediation and cleanup activities, and teachaffected communities about how to safely contain radiation. (39)
section_title: "Changed Circumstances" Basis of Petition and Supporting Arguments
paragraphs: The Petition justifies its claims of "changed circumstances" largely upon "new andadditional" information since the Compact's enactment -- Department of Energy records (declassifiedin the early 1990s) that indicated a wider extent of radioactive fallout than previously known ordisclosed, and scientific findings that reduced the levels at which exposure to radiation was deemedsafe. As a result of, and in addition to, the above findings, the Petition and accompanying materialsargue that higher than expected health consequences and costs of health care, medical surveillance,environmental cleanup, and radiological monitoring, as well as lower than expected investmentreturns from the Nuclear Claims Fund, constitute changed circumstances. The Petition refers to thefollowing studies and factors regarding "changed circumstances" and the "manifest inadequacy" ofCompact provisions:
Declassified Information. According to thePetition, when the Compact and Section 177 Agreement were written, most nuclear test injuries anddamages were attributed to the Bravo hydrogen bomb test of 1954. In the early 1990s, the UnitedStates 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 atollswere exposed to dangerous levels of radiation from the U.S. nuclear weapons program. (40) 
New and Updated Scientific Findings. Accordingto 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 exposureto be 100 mrem per year above background levels of radiation (external plus internal doses). Whenthe Compact was agreed upon, the accepted dose limit was 500 mrem per year. The EPA's 15 mremstandard, adopted by the Nuclear Claims Tribunal, would imply higher cleanup costs and at leastnine additional atolls that were exposed to dangerous levels of radioactive fallout. The BiologicalEffects of Ionizing Radiation Committee, 1990 (BEIR V) asserted radiation exposure to be almostnine times as damaging as that estimated by the 1972 Committee (BEIR I). (41) A study by Mauro andBehling asserted that whole body doses from external radiation were more than twice as high asprevious estimates while estimates of thyroid doses to residents of Rongelap and Utrik wereunderestimated by 10-20 times. (42) 
Compact Funding Proved to Be ManifestlyInadequate. The Petition claims that the higher costs associated with health care,medical surveillance, and radiological monitoring of Marshallese citizens and their atolls could notreasonably have been identified at the time of the 177 Agreement. Medical and related programsestablished by the Compact were "grossly inadequate." Furthermore, the investment returns on theNuclear Claims Fund of $150 million were expected to generate $270 million over the 15 years ofthe first Compact term -- a 12% annual rate of return or approximately $18 million per year -- to bedistributed mainly among the 177 Health Program, trust funds for the four atolls, and the NuclearClaims 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 in2001-02. According to the Tribunal, the Fund earned approximately $160 million rather than $270million (1986-2001) as projected when the Compact was negotiated. The Petition contends thatgreater than expected claims and lower than anticipated interest earnings constitute changedcircumstances. To make payments to the NCT and atoll distribution authorities, the corpus of theFund has been nearly depleted with only about $4 million remaining and approximately $15.7million in unpaid awards in 2005. (43) See Appendix C .
section_title: The Administration Report
paragraphs: In November 2004, the Bush Administration, in response to Congress' request for anevaluation of the RMI Petition, issued a report rejecting the argument that the petition's claimsconstituted "changed circumstances." The report argues that the "mixed earnings record" of theNuclear Claims Fund and high medical care demands do not provide bases for a funding requestunder the "changed circumstances" provision of the Section 177 Agreement. The report suggeststhat the NCT granted personal injury awards too liberally. For example, according to the report, theTribunal provided payments for medical conditions that are not recognized under U.S. radiationinjury compensation programs, and to persons with low likelihood of exposure, includingdescendants of affected individuals (to which transference of nuclear effects is not proven). TheAdministration also states that the enrollment of "ineligible" persons in the Four Atoll Health CareProgram (177 Health Program) "remains a concern." Furthermore, there were no losses or damagesto property that "could not reasonably have been identified" at the time of the 177 Agreement andthat would thus constitute changed circumstances. The report adds that there is no legal basis underthe Changed Circumstances Clause for funding health education, occupational safety, andcommunity programs. 
The Administration disputes the Petition's scientific claims. It argues that the middle atollssouth of Bikini, Enewetak, Rongelap, and Utrik were not exposed to dangerous levels of radioactivefallout. It states: "The weight of expert scientific evidence indicates that the present impact ofradioactive fallout on the Marshall Islands is limited to the northerly atolls and islands...mosthistorically 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 bythe U.S. government and completed in 1994. The Survey's results, which were rejected by theNitijela, the RMI Legislature, found that only four atolls -- Bikini, Enewetak, Rongelap, and, to alesser extent, Rongerik -- contained unsafe levels of radiation or would require limited remediationor dietary restrictions. The Administration challenges the RMI assertion of a nine-fold increase inthe Biological Effects of Ionizing Radiation (BEIR) Committee's estimates of risk from radiationexposure and contends that Behling's estimates of average external doses of radiation are about twicehas high as those of other experts. 
The Administration report denies that past cleanup efforts on the Marshall Islands wereinadequate or conducted according to obsolete risk standards. Contrary to RMI assertions, the reportstates that the current U.S. dose limit to protect the public from all sources of radiation is 100 mremsrather than 15 mrems. It states: 
Extensive monitoring of individuals on Marshall Islandsatolls where cleanup has been effected indicates actual radiation doses are below 0.15 mSv (15mrem), the value advocated by the Tribunal. RMI cleanup decisions to date have conferred a degreeof protection that exceeds all existing U.S. federal agency guidelines as well as the Tribunal's desiredstandard. (46) 
section_title: Analysis and Discussion of Selected Scientific, Methodological, Policy, and Legal Bases of the Changed Circumstances Petition
paragraphs: The Changed Circumstances Petition relies upon scientific, methodological, policy, and legalassumptions that may be disputable or require further inquiry. The following section analyzes anddiscusses several issues related to key personal injury, health care, and property damages claims inthe Petition. These include expected radiation-related illnesses in the Marshall Islands; themethodology for determining the value of "lost use" of damaged properties; the appropriate standardof 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. 
subsections: section_title: Cancer Estimates(47)
paragraphs: The magnitude of potential future requests for personal injury compensation in the MarshallIslands may be deduced from cancer estimates prepared by the NCI in September 2004. (48) Among the approximately14,000 persons in the Marshall Islands during the 1946-1958 period of nuclear testing, NCIestimated that about 6,130 cancers would occur over their lifetimes. About 5,600 of those cancerswould have occurred even if the nuclear tests had not taken place (the baseline risk), and about 530were estimated to be caused by fallout from the tests. Therefore, the NCI study estimated that thenuclear testing program would increase the cancer rate for the entire exposed population by about9% above the baseline.
NCI's baseline cancer risk estimate was derived from cancer rates for all races, adjusted toreflect statistics for ethnic Hawaiians. Estimates of the additional risk posed by the nuclear testingprogram 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 thetesting-exposed population would be caused by the nuclear tests, those cancers are indistinguishablefrom the 90% of cancers that would have occurred anyway. Therefore, to ensure compensation ofthe testing victims, everyone suffering from the specified types of cancer should be eligible forawards. This has been the policy of the Nuclear Claims Tribunal and is similar to the way personsexposed to Nevada nuclear testing are compensated under the "downwinders" program.
The NCI report estimates that about half the 6,130 cancers projected for the nuclear testingpopulation "are yet to develop or be diagnosed." (49) The report also notes that 2,046 personal injury awards had beenmade through June 30, 2004. This would indicate that over 3,000 claims may have yet to be filedamong persons alive during testing. If eligibility is extended to persons born after the end of thetesting period, the number of potential additional claims could be far higher, assuming baselinecancer rates remain steady.
section_title: Loss of Use Methodology(50)
paragraphs: The loss-of-use methodology, which is the same for both the Enewetak and Bikini claim, wasdeveloped by a consulting firm under contract for counsel for claimants and the NCT, whichprovided many of the estimation parameters and assumptions. (51) According to theconsulting firm's report, no alternative methodologies were explored or used. (52) The resulting estimates ofthe 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 theclaimants property is viewed as reasonable and appropriate. For several reasons, however, thespecific 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 could lead topossibly excessive total damages claimed and awarded by the NCT. The main problem is with theuse of inflated average rents per acre, which are estimated by applying an exponential regressionmodel to unrepresentative sample data that largely reflect government-influenced rents rather thancompetitive, free-market levels. (54) This leads to an apparent overestimate of not only pastloss-of-use, but because estimated rents is a critical variable used as an input into future-loss-of-usecalculations, 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 thanis actually the case, 2) undervalues the rentals on alternative atoll habitation, and 3) assumes thatrecipients of rental proceeds, as consumers and savers, would have saved 100% of the rentalproceeds. Each of these assumptions overestimates past loss of use. Alternative methodologies orassumptions may have led the NCT to a different outcome.
The NCT Methodology. The methodology usedby the NCT to estimate the value of the loss-of-use of lands belonging to the people of Enewetak andBikini attempts to calculate the fair market rental value of those portions of the Enewetak and Bikiniatolls that the people were unable to use, as a result of their evacuation and use (appropriation) bythe U.S. government. According to the NCT, this rental value represents an estimate of the rents thatthe U.S. government should have paid (but were not fully paid, according to the claimants) to theatoll residents, as proprietors, for the use of their land. Compensation is based on estimated rentalvalues, in lieu of land asset values, because the underlying assumption is that the U.S. Governmentdid not "take" or purchase the land but instead used it, with the consequence that the inhabitants wereunable to use it. There is generally a close mathematical relationship between rentals and landvalues. 
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 dueto continued dangerous levels of radiation contamination, which, for some of the islands at least, isroughly the period from 1958 to 2027. (56) 
More specifically, the estimate of total loss-of-use is the sum of two components: pastloss-of-use, which is the present value of rents that should have been paid from the time ofevacuation to the date of the appraisal reports' publication, and future loss-of-use, which is thepresent 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 pastloss-of-use estimates, the NCT also awarded what it called a "prejudgment interest," which is theinterest income earned on the original judgements from the time they were determined to the timethey were awarded. See Table 1 .
Description of Past Loss-of-Use Methodology. For Enewetak, past loss-of-use consists of the estimated rents on the entire atoll (1,952.6 acres) fromthe 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 were allowed to safelyuse only 646.82 acres of the atoll -- 1,305.78 acres continued to be off limits due to dangerous levelsof radioactive contamination. Thus, past loss-of-use includes the estimated rents on this 1,305.78acres from October 1, 1980, to May 16, 1996, which is the date of the Hallstrom Group's appraisalreport. 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. Themethodology assumes that the loss-of-use was continuous and uninterrupted -- that the islandersnever returned to their atoll. (57) 
 Table 1. The NCT's Estimated Damages for Loss-of-Use, byComponent
($ in thousands)
Sources : Memoranda of Decisions and Order for Enewetak and Bikini attached to the ChangedCircumstances Petition; and Bill Graham. Outline of the Prepared Remarks for Congressional StaffBriefing. The Operations of the Marshall Islands Nuclear Claims Tribunal Established Pursuant toU.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 CRSbased on the other available data. The Hallstrom Group estimates of past lost use are 60% greaterthan the Darroch report estimates; for future loss-of-use, the Hallstrom report estimates are nearly200% greater than the Darroch report estimates.
More specifically, the value of past lost use is calculated by: 1) estimating average rents peracre (which are assumed to be the same for Enewetak and Bikini) for each year of denied use; (58) 2) determining the acreageof denied use for Enewetak and Bikini for each year, (59) 3) multiplying, for each year of lost use, beginning with the yearof 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 Enewetakand several alternative atolls in the case of Bikini); 5) deducting, for each year, any priorcompensation paid as rent for the actual use of Enewetak and Bikini, or for the loss-of-use by theEnewetakians and Bikinians as a consequence of the U.S. government's use; 6) multiplying each ofthese estimated annual rents by a compound interest factor (which is a figure that accounts for theinterest that would have been earned on the annual rents up to the time of valuation), 7) adding theinterest 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 figuresfrom step 4) over all the years during which the Enewetak and Bikini islanders were deprived of theirland (from December 21,1947 to May 16, 1996, for Enewetak; from March 7, 1946, to November18, 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 theloss-of-use claims were heard to the time of the awards. For Enewetak this is the 40-month periodfrom January 1997 to April 2000; for Bikini this is the 33-month period from May 1998 to March2001. (60) In effect, thispre-judgment interest assumes that the loss-of-use awards should have been paid when the claimswere heard as compared to when either the estimates were generated and reported to the NCT, whenthe 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, forEnewetak; November 19, 1997, for Bikini) and continues until such time as the claimants areestimated 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 theestimated annual rents over this time period.
More specifically, for Enewetak, future loss-of-use is the value of projected foregone rentalincome on the 1,305.78 acres from the period from May 17, 1996 to May 16, 2026, (which is theestimated date that the 1,305.78 acres of Enewetak atoll will be sufficiently decontaminated to permitits safe use); for Bikini, future loss-of-use is from November 19, 1997 to November 18, 2027 (whichis the estimated date that the Bikini islanders will have full use of their atoll once again). These datesof 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 assumeduniform nominal interest rate of 8%. Average rents per acre are assumed to start at $4,105 forEnewetak, and $4,167 for Bikini, and to remain constant for each year throughout the forecastperiod. (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, themethodology used by the NCT to estimate the value of the lost use of the claimants' property isviewed 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 atollswhich was not adequately paid for; or, if there was no contract -- if the United States is responsiblefor the inability of the Enewetakians and Bikinians to use their land -- the appropriate methodologywould 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 andthe present (discounted) value of projected future rents, as was done in the NCT reports. These rentalvalues would be the fair market average rents per acre times the relevant acreage for the length oftime that it was rendered unuseable as a result of U.S. government activities. Indeed, the modelunderlying the methodology -- the capital asset pricing model -- is rooted in sound economic andfinancial theory, and the methodology itself is standard methodology used by economists, as wellas 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 pastloss-of-use, hundreds of actual lease transactions from two distant atolls in the RMI are sampled toestimate average rents per acre for each year -- a critical variable upon which both past and futureloss-of-use estimates (and, therefore, the total damages awarded) are based. In the estimation of thefuture loss-of-use, the methodology appropriately attempts to estimate the value of such loss-of-useas 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 thecritical data used, some of the assumptions, and certain statistical procedures applied (i.e., thesampling technique and the regression model) -- produce past and future loss-of-use estimates thatappear to be overstated, which leads to possibly excessive total damages claimed and awarded bythe NCT. The main problem is with the past loss-of-use estimates, but since these are carried overinto future loss-of-use calculations, those estimates appear to be inflated as well. 
Overestimates of Past Lost Use. Past loss-of-usedamages appear to be overstated for several reasons. First, and foremost, the methodology usesinflated estimates of average rents per acre, a critical variable used as an input into both past- andfuture-loss-of-use calculations. To estimate average rents per acre, the methodology uses anonrandom sample of average rents per acre from lease transactions from distant atolls which maynot reflect the rents on Enewetak and Bikini. Further, the sample rent data largely reflect rents setby government decree rather than as the equilibrium of supply and demand for the use of land in acompetitive real estate market (which is the underlying assumption of the type of model used toestimate loss-of-use). Since 1979, the RMI cabinet has established above market rentals ongovernment 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 areleased at this official rate. During the 1970's average rents, which were probably still high due toU.S. government leases, averaged $597/acre according to the Darroch report and $511/acreaccording to the Hallstrom report.
A second reason for overstated past loss-of-use, is that the methodology applies anexponential 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 acrefor recent years makes it appear that the overall trend of rents since 1946 is exponential, whichfurther compounds the upward bias in the estimated average rents per acre, and thus overestimatespast 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 landthat is assumed to be denied the people of Enewetak and Bikini. Even though some portions of theaffected atolls were completely destroyed or pulverized by the nuclear testing -- 182.46 acres ofEnewetak (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 continuesto earn inflated rents at compound interest through 2026 for Enewetak and 2027 for Bikini. Giventhe equivalency between the value of land and the rentals earned on that land, the appropriatemethodology would compensate the landowners for the value of the destroyed portions of the twoatolls, 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 claimwould be awarded.
Fourth, the assumption is made that the rental value of alternative properties provided to theclaimants by the U.S. government (the use gained for these substitute living quarters on Ujelang andRongerik) is generally only 58% of the average rents times the land area of Ujelang in the case ofEnewetak; and either 75% or 58% times the amount of land on Rongerik and Kili in the case ofBikini. (61) While thededuction for value of alternative habitation is viewed as fair and appropriate, the assumption thatthe average rentals were a fraction of those on the Enewetak and Bikini atolls is problematic. Notonly does this carry over the upward bias from the prior calculations -- the estimation of foregonerents on the Enewetak and Bikini atolls -- but it is inconsistent with the estimating assumptions, perthe instructions of claimant's counsel and the NCT, that the methodology will not base value oneconomic use, such as production of copra or potential for nuclear storage. (62) Also, there is evidencethat the value of alternative domiciles might have been greater due to the investment of the UnitedStates in building houses and other infrastructure.
The NCT methodology also makes some assumptions regarding the timing of denied use, inthe case of Bikini atoll, that raises the loss-of-use damage estimates. In particular, it assumes thatthe Bikinians' loss-of-use was continuous and there was no return. On March 7, 1946, 167 Bikiniislanders (the inhabitant proprietors) were evacuated, but some of the Bikinians returned to twoislands of the atoll (Bikini and Eneu islands) from June 1, 1969, to July 31, 1978. While it is true thatthey returned to a contaminated island, internal consistency in the methodology requires that thereturn be counted as such. The implication for the loss-of-use estimation is that the rentals on thesetwo occupied islands of the atoll would be lower or zero owing to this contamination, and that thevalue 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 affectedRMI atolls would have invested 100% of the rental proceeds in 30-year Treasury bonds. Thisassumes that the islanders would have saved 100% of the rental proceeds. A more realisticassumption would be that they would invest a fraction of the rental proceeds equal to the assumedsavings rate, and that they would have consumed the remainder. The amount saved based on thiscalculation 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 respectto future loss-of-use, CRS finds again that the present discounted value methodology is generallyappropriate, but that the estimated dollar amounts are inflated or overstated. The primary reasonthat future loss-of-use is overstated is that the procedure carries over into the calculation of projectedfuture rents the inflated estimates of average rents per acre from the past loss-of-use. Thus, forEnewetak, 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 Enewetakiansand Bikinians could return to use the vaporized islands also contributes to this overestimate.
section_title: Environmental Restoration(64)
paragraphs: The residents of the Marshall Islands have expressed ongoing concern about the adequacyof previous efforts of the United States to clean up radioactive contamination in soil from pastnuclear tests. Scientific data suggest that the type and level of radioactivity in most areas are notlikely to pose a significant health risk from external exposure to the soil itself. Internal intake ofradioactivity 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 theconcentration of radioactivity absorbed and the amount of time it remains present in the body. Thedegree 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 priorcleanup according to a less stringent standard than would be required in the United States today. Itfurther argues that additional cleanup is warranted to meet the current U.S. standard, noting thepolicy of the International Atomic Energy Agency (IAEA) that cleanup of contamination caused byanother nation should be at least as stringent as cleanup within the country of release. The RMI alsoasserts that the area of contamination is larger than originally thought, and therefore argues thatfurther cleanup is warranted.
The 1986 Compact of Free Association between the United States and the RMI permits theawarding 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 awardadditional financial compensation to perform cleanup according to a more recent U.S. standard, andover a broader area than had been addressed with prior efforts. However, the Bush Administrationargues that federal funding to pay this claim is not warranted, asserting that radiation protectionstandards applied to past cleanup efforts have not become stricter, the area of known contaminationhas not changed, and radiation doses are currently safe according to recent medical tests.
The following sections discuss the Tribunal's decision on additional compensation forenvironmental restoration, the IAEA's policy on environmental cleanup, the cleanup standardproposed by the RMI, variables that would determine whether the standard that the RMI wishes touse would be applied to the cleanup if it were performed in the United States, the BushAdministration's viewpoint on the cleanup standard, and disagreement between the RMI and theBush 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 amountbecause of adjustments made from $109 million in compensation already paid by the United Statesin prior years. The Tribunal also recommended $91.7 million in additional compensation to thepeople of Enewetak Atoll for environmental restoration. The total estimated cost of the restorationof this atoll is $101.7 million. The Tribunal agreed to $10 million less than this amount, againbecause 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 andreplacing some of the contaminated soil; 2) disposing of excavated soil by using it as a sealed fillerto construct a causeway between various islands; and 3) treating and monitoring the remainingcontaminated soil with potassium, which in other locations has proven to be effective in blockingthe uptake of radioactivity by food crops. The RMI reports that the cost estimates for the aboveactivities were calculated based on data from DOE.
The RMI estimated the cleanup costs using a standard U.S. methodology for selectingremedial and disposal actions from a variety of alternatives, ranging from the least to the greatestpotential cost. For example, the RMI chose a potentially more cost-effective combination of soilremoval and potassium treatment, rather than the possibly more costly option of removing allcontaminated soil. (65) For disposal of removed soil, the RMI considered the more costly option of shipping thecontaminated material to the closest disposal facility in the United States, but selected the sealedcauseway alternative to provide a less costly means of local disposal that also would provide aninfrastructural benefit to the local population.
IAEA Policy on Environmental Cleanup. Issuedin November 2003, IAEA's current policy on environmental cleanup applies to contaminationresulting 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 MarshallIslands during the 1940s and 1950s. In its petition for additional compensation from the UnitedStates, the RMI argues that more stringent U.S. standards warrant further cleanup. In support of itsargument, the RMI's petition refers to the "position" of the IAEA that "....policies and criteria forradiation protection of populations outside national borders from releases of radioactive substancesshould 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, releasedin 1985 as part of the Agency's safety series. (68) Allan Richardson, a scientific consultant who assisted the RMIin the preparation of its petition, also referred to the above 1985 policy in his testimony before theHouse 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 policyprimarily applied to situations in which a nuclear facility located close to the border of another nationreleased radiation that resulted in exposure to foreign populations across borders, rather than to thecleanup of contamination from past nuclear tests or other events. 
The IAEA published over 100 policy documents in its safety series through 1996, includingthe 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 onenvironmental cleanup in November 2003, as noted above. It consolidates many of the policies fromthe former safety series, but it does not include a policy on cleanup of contamination outside nationalborders.
The IAEA's current safety standards for radioactive discharges do include a policy ontransboundary exposure similar to the above 1985 policy, recommending that "radiation protectionof populations outside national borders from discharge of radioactive substances should be at leastas 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 tomedical 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 forprotecting public safety, recommends a framework for individual nations to establish their own legaland regulatory requirements to achieve these objectives, and provides guidance for the developmentand implementation of remedial actions. Cleanup in contaminated areas is recommended if thecumulative annual dose of radiation from all sources, including natural background levels, wouldexceed 10 millisieverts (1,000 millirems or 1 rem). (73) The IAEA guidance specifies that this amount would "normallybe assessed as the mean dose for an appropriately defined critical group." (74) However, the IAEA policydoes not specify the quantity of individuals or demographics that would constitute a group for thepurpose of measuring a mean dose. How to define a dosage group would be left to the discretionof each nation, and whether to perform cleanup and to what degree would depend on each nation'slegal requirements.
Neither the former nor the current series of safety standards is legally binding on MemberStates, including the United States, except in situations in which the IAEA is involved in a specificaction at the request of a Member State. To clarify this matter in its current safety series, the IAEAincluded language in the preamble to each policy document stating that, "The IAEA's safetystandards are not legally binding on Member States but may be adopted by them, at their owndiscretion, for use in national regulations in respect of their own activities. The standards arebinding on the IAEA in relation to its own operation and on States in relation to operations assistedby the IAEA."
As such, the IAEA's safety policies constitute recommended guidelines for protecting humanbeings from exposure to potentially harmful levels of radiation, rather than legally binding orenforceable requirements. Consequently, it appears that IAEA safety policies do not bind the UnitedStates to a certain degree of cleanup at sites within or outside its borders, including the MarshallIslands, as long as the IAEA is not involved in carrying out specific actions at the request of eithernation. To apply IAEA policy to the cleanup of the Marshall Islands therefore appears to be a policydecision, rather than a legal requirement.
Cleanup Standard Proposed by the RMI. Federalradiation protection standards are not uniform in the United States, but vary in stringency amongregulatory agencies, and are specific to certain sources and circumstances. (75) The degree of cleanup thatthe RMI wishes to perform is based on an EPA cleanup standard that limits annual radiationexposure from all sources to 15 millirems. This standard establishes the "reasonable maximumexposure" of radiation for an individual above the local natural background level, which EPA deemswould be safe without resulting in harmful biological effects. The IAEA's recommended standardof 1 rem of cumulative annual exposure for an "appropriately defined group" is not comparable toEPA's standard or DOE's 100 millirem standard, discussed below, as these latter two standards limitexposure 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 woulddepend 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 littlecleanup may be required if the potential for exposure were minimal. Conversely, more cleanup maybe necessary if there were greater likelihood of exposure. The RMI has based the degree of cleanupthat it has planned on the possible risk of exposure from residential and agricultural use on the twoatolls.
EPA issued its 15 millirem standard in 1997 in an agency guidance document. This guidancerecommends safe levels of human exposure to determine the degree of cleanup at Superfund sitesin the United States where radioactive contamination is present. (76) To date, EPA has notproposed this standard in federal regulation, and it is not legally enforceable or binding in the UnitedStates. However, EPA issued the standard based on an enforceable federal regulation, whichrequires a degree of cleanup that would result in a cancer risk of no greater than 1 in 1 million, oras much as 1 in 10,000 in certain circumstances. (77) 
Applicability of Standards to Marshall IslandsCleanup. The RMI asserts that EPA's 15 millirem standard should be used todetermine the degree of cleanup in the Marshall Islands, arguing that this standard would apply tothe cleanup if it were being done in the United States. However, this is not necessarily the case. Ifthe Marshall Islands were a U.S. territory, DOE presumably would be responsible for the cleanupthere. (78) DOE's generalstandard for cleanup at former nuclear weapons production and test sites specifies an annualindividual limit of 100 millirems of exposure to radiation. DOE has not promulgated an enforceableregulation for this standard, but has specified it in a non-binding, internal "order." (79) DOE reports that it hasused this standard to determine the degree of past cleanup efforts in the Marshall Islands. The BushAdministration asserts that this standard should continue to be used to determine whether additionalcleanup is necessary.
The stringency of DOE's cleanup standard is equivalent to the degree of protection providedby the standard that the Nuclear Regulatory Commission (NRC) promulgated in 1991 for protectionof the public from radiation released from the operation of nuclear facilities that it licenses, such ascivilian nuclear power plants. (80) The NRC's more stringent standard of 25 millirems for cleanupapplies to the facilities that it licenses for operation, (81) but not to DOE nuclear weapons sites which are not under thejurisdiction of the NRC. 
Although DOE's general cleanup standard is 100 millirems, there is precedent for theDepartment voluntarily agreeing to EPA's 15 millirem standard for cleanup of contaminated soil onat least two former nuclear weapons production sites: Hanford in Washington State, and Rocky Flatsin Colorado. Such decisions are made on a site-specific basis, as would be the case for the cleanupof 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 theextent and cost of cleanup that would be required to prevent exposure to a more stringent degree thanthe 100 millirem limit that DOE prefers. Consequently, it is uncertain whether the 15 milliremstandard would be applied to the cleanup of the Marshall Islands, if the cleanup were being done inthe United States.
The extent of cleanup necessary to attain the 15 millirem standard at Hanford and RockyFlats likely would be significantly less than in the Marshall Islands on a proportional basis, becausethe 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 concentrationof radioactivity could remain in the soil and still prevent annual exposure from exceeding 15millirems at these two sites. Rocky Flats will serve as a National Wildlife Refuge with humanaccess limited to refuge personnel and visitors in certain areas. Hanford is not planned forunrestricted use, but it will continue its function as a waste treatment and disposal facility into theforeseeable future, even after cleanup is complete. Neither site is planned for residential oragricultural 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 doesnot 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 applied to cleanup in the UnitedStates to the extent that the degree of cleanup necessary to achieve it is practical. Others mayadvocate 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 BushAdministration opposes the use of the 15 millirem standard in the Marshall Islands and advocatesthe continued use of the 100 millirem standard, discussed below.
Bush Administration Viewpoint on Marshall Islands CleanupStandard. In the State Department's report, the Bush Administration argues that the100 millirem standard is the level of protection that is generally applicable in the United States, andthat the United States therefore should not pay for cleaning up the Marshall Islands to a morestringent level. However, the report also acknowledged that "There are multiple U.S. federalstandards applied to various cleanups that cover a wide range of doses but in general, they tend tocontrol doses to as far below the 1 mSv [100 millirems] per year limit as is practical." (82) Both the EPA and NRCcleanup standards are more stringent and more recent than the 100 millirem standard that theAdministration 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'sdiscretion. The State Department report did not explain the Administration's rationale for notapplying 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 analternative cost estimate in the State Department report to conduct additional environmental cleanupin the Marshall Islands. Presumably, an estimate is not provided because the Administration arguesthat no cleanup is necessary to attain that level of protection. The Administration asserts thatmedical tests indicate current human doses of radioactive isotopes in the Marshall Islands typicallydo 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 Administrationargues that the actual dose of radiation absorbed by those tested does not exceed the 15 milliremstandard that the RMI wishes to use for cleanup, and is far less than the 100 millirem standard thatit recommends, and concludes that additional remediation in the Marshall Islands is therefore notnecessary.
Disagreement Regarding Areas of Contamination. There have been numerous surveys of radioactive contamination in the Marshall Islands sincenuclear weapons tests ceased. Residents of the islands have expressed longstanding concern as towhether these surveys have identified all contaminated areas. The RMI commissioned theNationwide Radiological Survey in 1994, which was funded by the United States. (83) Many have noted thissurvey as being the most comprehensive effort to examine levels of radioactivity in soil on islandspotentially affected from past fallout, including Bikini, Enewetak, Rongelap, and Utrik Atolls.
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 inhabitedat that time did not pose a significant health risk, but that some cleanup likely would be necessaryfor certain islands if they were to be resettled or if foods grown on them were to be consumed. TheRMI disagreed with these findings based on criticisms regarding accuracy, completeness of data, andcredibility 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 peerreview.
The RMI continues to dispute the findings of the 1994 survey, and asserts that potentiallyharmful contamination is present across a greater area and at lower latitudes, warranting furthercleanup. The RMI's petition for compensation for Enewetak Atoll advocated that morecontamination surveys are needed to fully identify all areas in need of cleanup to protect theresidential population. The Tribunal's compensation decision included $4.5 million to fund suchsurveys, as part of the estimated cost of environmental restoration. The Tribunal's compensationdecision for Bikini Atoll did not specify the costs to perform additional surveys of contamination onthose islands.
The Bush Administration supports the findings of the 1994 survey and argues that cleanupof a broader area is therefore not needed to protect the residents of the islands. However, theAdministration appears to base its conclusion on the assumption that unoccupied areas withradioactive contamination would not be resettled. The Administration has acknowledged that certainareas 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 offlimits...." (84) At thesame time, the Administration indicated that ".... most historically inhabited islands in the northernatolls could be resettled under specific conditions." (85) However, it did not specify what those conditions might be, orwhether the concentration of radioactivity and potential pathways of exposure were examined todetermine if cleanup would be necessary to allow resettlement.
If resettlement in currently unoccupied areas were to occur, cleanup may be necessary if thedegree of contamination would result in annual exposure to radiation in excess of either the 100millirem or 15 millirem standard, depending on the concentration of radioactivity and pathway ofexposure. Continuing efforts to understand the human health effects of radioactive contaminationin the Marshall Islands also possibly could reveal that remediation is necessary to protect theresidents in currently occupied areas. For example, if ongoing medical tests administered by theDepartment of Energy's Lawrence Livermore National Laboratory were to reveal that radiation dosesare higher in currently settled areas than present data suggest, decisions could be needed as towhether remediation may be warranted, even if access to unoccupied areas remained restricted.
section_title: Legal Issues(86)
paragraphs: Litigation Involving Inhabitants of the RMI. Inthe early 1980s, fourteen different groups of litigants representing approximately 5,000 inhabitantsof the Marshall Islands brought cases in the United States Court of Claims against the United Statesto recover damages said to result from United States nuclear weapons testing. (87) The litigants were fromthree different groups: inhabitants of Bikini Atoll, inhabitants of Enewetak Atoll, and inhabitants ofatolls and islands that were not used as atomic test sites. The Court handled the three different groupsseparately, with the cases in the third category being consolidated. Although these cases were allultimately dismissed for the reasons discussed below, there are indications that at least some of thelitigants are seeking to file suit again.
At the time the cases were filed in the United States Court of Claims, the United States andthe government of the emerging Republic of the Marshall Islands were negotiating the Compact ofFree 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 caseinvolving Bikini Atoll inhabitants, (88) the court held that the plaintiffs had stated claims sufficient toinvoke the jurisdiction of the court, (89) that the sovereign immunity of the United States had been waivedas to the claims, and that at least some of plaintiff's claims would appear to survive a statute oflimitations bar. (90) While making no findings as to the validity of the claims, the court allowed the plaintiffs to moveforward on the theory that there had been takings in violation of the Fifth Amendment (91) and breaches of animplied-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 statuteof limitations barred the taking claims of the Enewetak people, that certain other claims were withoutmerit, but that the complaint had stated a breach of contract claim within the jurisdiction of thecourt. (93) The Court heldthat the claim that there was a breach of an implied-in-fact contract between the inhabitants and theUnited States was not barred by sovereign immunity, and that such claims were sufficient to compela denial of a motion to dismiss. (94) 
In the consolidated cases involving plaintiffs who were not on the Bikini or Enewetakislands, it was decided that the complaints of an unlawful taking were within the jurisdiction of thecourt and were not barred by the statute of limitations. (95) Further, the United States' motion to dismiss was denied as tothe 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 theUnited States and RMI. A plebiscite approving the agreement was held, and a Joint Resolution toimplement the Compact was passed by Congress. (98) Section 177 of the Compact provides that the United Statesaccepts responsibility for compensation owing to the citizens of the Marshall Islands as a result ofnuclear testing between June 30, 1946, and August 18, 1958. This section further provides thatcompensation shall be determined based on a separate agreement with RMI.
Pursuant to Section 177, this separate agreement between RMI and the United States wasnegotiated, establishing a Nuclear Claims Tribunal to provide for the settlement of nuclear testingclaims. In conjunction with these provisions, however, Article XII of the Section 177 Agreementprovided that (1) all claims related to the nuclear testing program shall be terminated; (2) no courtof 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 theseprovisions, the United States again filed motions to dismiss the various cases. This time, it arguedthat the claims were now non-justiciable because they involved a political question relating to theforeign affairs powers of the United States, and because the Section 177 Agreement divested thecourt of subject matter jurisdiction.
In response to this motion, plaintiffs made a number of arguments, some of which wererejected by the Court of Claims and subsequently by the United States Court of Appeals for theFederal Circuit. (99) Forinstance, the plaintiffs argued that while the Compact had been agreed to by the United States andRMI, the United Nations had not agreed to terminate the trust relationship between the United Statesand 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 alsorejected. (101) 
The Court, however, declined to reach a number of other issues. One such argument madeby the plaintiffs was related to the concept of "espousal." Espousal occurs when the government ofone country asserts the private claims of its nationals against another sovereign. (102) In such cases, it isestablished international practice to settle these claims by international agreements. Here, the newlyformed RMI appears to have "espoused" the claims of its citizens against the United States fordamages 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 itscitizens to bring suit in the United States for such damages. Normally, such actions by a sovereignwould be sufficient to extinguish claims against another nation. However, the plaintiffs raised anargument that this waiver was not valid as to them, because the injury occurred before the claimantswere citizens of RMI. (103) This argument is called the "continuous nationality" rule, aprinciple of international law which provides that a state does not have the right to ask another stateto pay for damages to its citizens if they were not its citizens at the time of the loss or damage. (104) The rationale behindthis doctrine is to prevent persons from obtaining citizenship in one state in order to use that nation'spowers of espousal to pursue their claims against another state. Under this argument, RMI lackedthe legal capacity to espouse plaintiffs' claims, and so the claims would not have been settled by theimplementation of the Compact. (105) 
This issue was analyzed by the Court of Claims in considering whether the Bikini Atollplaintiffs could continue their law suit. The court, however, distinguished the facts of the cases fromthat doctrine. The issue, the court indicated, was not whether naturalized citizens could bring claimsfrom a forum that they had chosen for their convenience. Rather, the issue was whether theinhabitants of an area which was under differing forms of government could be adequatelyrepresented 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 claimsarising before its creation was a novel and unexplored area in international law. Consequently, thecourt deferred a decision on this issue, deciding the case on other grounds. (106) Thus, if these casesare 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 ruleis considered to be an outgrowth of the broader international law rule that a state may not espousea claim on behalf of someone who is not its national. The "continuous nationality" rule merelyprovides that this general rule must be satisfied both at the time of injury and continuouslythereafter. (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 toespouse claims of individuals with whom they have little or no connection. That rationale may notbe strongly applicable in the instant case, as the majority of the injured parties are likely to have beencitizens of RMI since that state's inception. Second, the doctrine appears to arise from variousrestrictive interpretations of bilateral treaties. For instance, where a treaty establishing a claimscommission did not define when a person becomes a national, it was assumed that the partiesintended for that term to be construed narrowly to exclude persons who were not nationals when aninjury occurred. Here, however, RMI and the United States clearly intended the espousal specifiedin 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 fromconsidering the plaintiffs' case was in violation of the Constitution. Under this argument, a blanketwithdrawal of access to a judicial forum deprives plaintiffs of all judicial remedies for violation oftheir constitutional rights under the Fifth Amendment, which in itself gives rise to a taking ofplaintiffs' causes of action in violation of the Fifth Amendment. (109) The United Statesresponded, however, by noting that the Tribunal established by the Section 177 Agreement provideda "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 prematureto address the above arguments, and that the question of whether the alternative procedures providedby 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 thatthe United States would argue that the case represented a political question, and should be resolvedby the Executive Branch, not the courts. (111) The political question doctrine, first recognized in Marburyv. Madison, (112) stands for the tenet that certain political questions are by their nature committed to the politicalbranches 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 allquestions touching foreign relations are political questions. (113) However, the issuein the instant case does not relate directly to the United States' relationship to a foreign country, butrather 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, theultimate shape of the United States' political question argument in this situation is unclear.
 Appendix A. List of Major Legislation Authorizing orAppropriating Compensation for Nuclear Testing, 1964-2004 (115)
Sources : Agreement Between the Government of the United States and the Government of theRepublic of the Marshall Islands for Implementation of Section 177 of the Compact of FreeAssociation , Appendix A; U.S. Department of State, Report Evaluating the Request of theGovernment of the Republic of the Marshall Islands Presented to the Congress of the United Statesof America , November 2004, Appendix B; Nuclear Testing in the Marshall Islands: A Chronologyof 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 forpurposes of resettlement, signed on September 19, 1996.
 Appendix B. Comparison of Radiation CompensationAmounts
Sources : Radiation Exposure Compensation Program (RECA), Department of Justice http://www.usdoj.gov/civil/torts/const/reca/ ; Nuclear Claims Tribunal http://www.nuclearclaimstribunal.com/ . 
 Appendix C. Payments from Earnings and Principal of Nuclear Claims Fund (1986-2004) and CurrentStatus 
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 ofthe Republic of the Marshall Islands for Implementation of Section 177 of the Compact of Free Association ; Nuclear Claims Tribunal.
 Appendix D. Marshall Islands TimeLine 
 Appendix E. Map of MarshallIslands