The Revival of RECA: A Temporary Apology For A Lasting Wrong – Why Congress Must Enact A Permanent Compensatory Scheme

by Brookelynn Stone, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

In 1990, the United States Congress enacted the Radiation Exposure Compensation Act (“RECA”), a landmark statute that acknowledged the federal government’s responsibility for harms caused by uranium mining and atmospheric nuclear testing.¹ RECA provides a one-time lump sum payment to individuals who developed certain cancers and diseases as a result of radioactive exposure.² The compensation, though modest, represents the government’s recognition of its wrongdoing and functions as a limited apology for the harm it caused to downwinder communities. Downwinder refers to the individuals and communities living downwind of the nuclear facilities or test sites.³

After more than thirty years, RECA expired in June 2024, abruptly leaving many affected communities without redress.⁴ In July 2025, however, Congress revived the program through the One Big Beautiful Bill Act, expanding eligibility to include additional communities and increasing compensation amounts.⁵ While this reauthorization represents a huge milestone for downwinders, uranium miners, and others affected by radiation exposure, its inclusion of a sunset provision threatens to undercut these gains.⁶ RECA’s temporary design places survivors and their families in a recurring cycle of uncertainty about whether Congress will renew its commitment.

The expiration and reauthorization of RECA highlight broader challenges at the intersection of environmental justice, administrative law, and congressional responsibility for historic governmental wrongs. This article argues that RECA’s temporary framework undermines its core purpose by failing to guarantee lasting redress. Part II provides historical background on nuclear testing, early litigation efforts, and the original passage of RECA. Part II further discusses the 2025 revival and expansion of RECA, analyzing the government’s liability and statutory limitations. Part III compares RECA to the September 11th Victim Compensation Fund (“VCF”) and contends that RECA should be made permanent to ensure fairness, stability, and accountability. Finally, Part IV concludes by underscoring that temporary solutions perpetuate injustice, leaving downwinder communities trapped in a recurring cycle of uncertainty without permanent recourse.

II. Background

Between 1945 and 1992, the United States conducted 1,054 nuclear weapons tests, marking nearly five decades of atmospheric and underground experimentation.⁷ The first detonation, known as the Trinity Test, took place in Alamogordo, New Mexico, and it marked the beginning of an era of atomic weapons testing.⁸ Of the total tests, 924 detonations occurred at the Nevada Test Site, and 100 of which were atmospheric detonations.⁹ Atmospheric testing refers to atomic weapons that exploded at or above ground level, making it particularly harmful to the environment as radioactive material is released into the atmosphere.¹⁰ The United States did not conduct any other atmospheric atomic weapons tests in the continental United States or Alaska.¹¹ However, the radioactive fallout from atmospheric testing descended on neighboring communities, which soon experienced elevated cancer rates and other radiation-induced illnesses.¹²

Author and downwinder Sarah Fox in Downwind: A People’s History of the Nuclear West, recounts how residents described the intrusion of radioactive fallout into ordinary life.¹³ She spoke with fellow downwinder Kay Millet, who remembered her tomatoes turning “white, crusty-like and laid over, gone for no reason.”¹⁴ For downwinder communities, radiation exposure was not an isolated event; it was a constant presence in their daily lives, evidenced by something as simple as contaminated tomatoes.¹⁵

Scientific studies later confirmed the correlation between radiation exposure and heightened risks of developing thyroid cancer and leukemia, while evidence for other non-cancerous diseases was less conclusive.¹⁶ Yet, early attempts to hold the federal government accountable faced significant obstacles, as it was difficult to establish a direct causal link between nuclear testing and their injuries, and courts were reluctant to impose liability.

This resistance is evidenced by Bulloch v. United States and Allen v. United States.¹⁷ These cases, while ultimately unsuccessful in securing relief for plaintiffs, laid the groundwork for RECA’s eventual enactment.¹⁸ The following section analyzes these cases in greater detail, highlighting their role in the broader struggle for justice and legislative reform.

A. Bulloch v. United States

In the mid-1950s, ranchers in southern Utah filed suit against the federal government under the Federal Tort Claims Act (“FTCA”), claiming that the radioactive fallout led to deformity, illnesses, and death among their sheep.¹⁹ In Bulloch, Judge Sherman Christenson rejected the plaintiffs’ claims, finding that they failed to establish all elements of negligence.²⁰ Judge Christenson asserted that the case turned on whether the damage was in fact attributable to atomic radiation exposure, noting that “some of the best-informed experts in the country expressed considered and convincing judgment that radiation damage could not possibly have been a cause or a contributing cause.”²¹ Absent sufficient evidence linking the government’s nuclear testing to sheep’s injuries, the court declined to impose liability.²²

Years later, when evidence came to light suggesting that the Atomic Energy Commission (“AEC”) was deceptive during the original proceedings, the plaintiffs filed a Rule 60(b) motion alleging that the government committed fraud against the court in withholding significant information.²³ Judge Christenson granted the motion and vacated the original judgment, but the Tenth Circuit reversed, and the Supreme Court denied certiorari.²⁴ The court’s refusal to hold the government accountable illustrates how early victims were denied meaningful redress—a theme echoed in RECA’s later design as a limited and temporary compensation scheme.

B. Allen v. United States

In the landmark Allen case, a group of plaintiffs who lived downwind of the atomic test site in Nevada filed a tort action against the United States government in 1979, alleging that fallout from nuclear testing caused them or their relatives to develop cancer or other radiation-related diseases.²⁵ Allen consolidated nearly 1,200 individual plaintiffs’ claims, with the district court selecting twenty-four “representative claims” to serve as a framework for adjudicating the remainder.²⁶ This litigation marked the first major legal effort to hold the government accountable for exposing communities to radiation without their knowledge or consent.

In a 215-page decision, United States District Court Judge Bruce S. Jenkins ruled in favor of the plaintiffs on nine claims.²⁷ Judge Jenkins’ ruling held the government liable for certain injuries and deaths linked to low-level radiation exposure.²⁸ Yet, this victory was short-lived. The Tenth Circuit reversed, concluding that sovereign immunity under the FTCA prevented the government from being sued for such claims, and the Supreme Court declined to grant certiorari.²⁹ Although Allen ultimately failed to provide victims with compensation or a judicial finding of governmental accountability, it paved the way for Congress’s eventual enactment of RECA.

C. The RECA Framework (1990-2024)

In 1990, Congress enacted RECA to provide partial redress for individuals exposed to radiation from the government’s atmospheric nuclear testing program.³⁰ Eligibility extended to three categories of claimants: onsite participants, downwinders, and uranium miners, millers, and ore transporters.³¹ Unlike traditional tort suits, RECA claimants do not have to establish causation.³² Instead, claimants must demonstrate that they were diagnosed with one of the listed compensable diseases after working or residing in a designated area for a specified period of time.³³

Compensation is awarded as a one-time lump-sum payment ranging from $50,000.00 to $100,000.00, depending on the claimant’s category.³⁴ For downwinders, however, eligibility is limited to residents of designated counties in Utah, Arizona, and Nevada—notably excluding individuals from states such as Idaho and New Mexico, where individuals were also exposed to radioactive fallout from the Nevada Test Site detonations.³⁵ Downwinder advocates argue that RECA’s restrictive eligibility criteria, inadequate monetary awards to cover long-term treatment, and burdensome documentation requirements collectively undermine the program’s effectiveness in providing meaningful redress to those harmed by the government’s negligence.³⁶

Congress amended RECA in 2000 to expand eligibility and streamline the claims process but left its sunset provision intact.³⁷ Since then, the statute has been repeatedly reauthorized and amended. Most recently, in 2022, Congress passed the RECA Extension Act, which authorized the program until June 7, 2024, and allowed the processing of applications postmarked by June 10, 2024.³⁸ By that time, RECA provided $2.6 billion in benefits to more than 41,000 claimants, offering a measure of reparations without forcing individuals into protracted litigation.³⁹ But after thirty years, RECA would no longer be an option for those seeking redress. During the 118^th Congress, House Republicans consequently failed to act on renewal despite bipartisan support in the Senate, leaving thousands of victims without access to compensation.⁴⁰

D. Reauthorization and Expansion of RECA (2025)

After a year of sustained advocacy, Congress finally reauthorized and expanded RECA through the One Big Beautiful Bill Act.⁴¹ The amendment marks the largest, and most substantial, expansion of RECA to date, increasing the compensation amount to $100,000.00 and extending benefits to a larger geographic area.⁴² For the first time, residents of states such as Idaho and New Mexico are now eligible to file a claim under RECA. The expansion also adds several medical diagnoses that were not previously included at the outset, and extends coverage to individuals harmed by radioactive waste from the Manhattan Project.⁴³ The projected cost of the revised program is eight billion dollars over two years, which is more than fifty times as large as the current program, even in peak years.⁴⁴ This expansion represents a significant achievement for survivors and their advocates, signaling a measure of long-sought recognition and redress.

III. Discussion

RECA’s modern-day reauthorization and expansion reflects the federal government’s limited willingness to acknowledge and compensate the communities harmed by nuclear testing. As amended, RECA addresses one of its most scrutinized flaws—the arbitrary exclusion of similarly situated individuals based upon outdated geographic boundaries. Radioactive fallout does not simply halt at boundary lines. The geographical expansion reflects both decades of persistent advocacy by downwinder communities and a modern scientific understanding of nuclear testing and radioactive fallout.⁴⁵

Yet, the renewed statute is undercut by its temporality. Congress has reauthorized claims only through December 31, 2027.⁴⁶ However, after that date, individuals will again be forced to rely on the uncertainty of politics to determine whether they have a right to receive compensation, highlighting the unfair and inequitable nature of this approach. This was evidenced by the 2024 lapse of RECA, when House Republicans, despite bipartisan support in the Senate, refused to schedule a vote on the bill, citing high costs as the reason for inaction.⁴⁷

Such uncertainty directly undermines the exact purpose of the statute—to provide meaningful restitution and to hold the government accountable for the harms it inflicted. RECA remains fundamentally unstable because of its sunset provision, especially when compared to the lessons of analogous compensation programs, like the VCF. The following subsection will explore that comparison, demonstrating that temporary reauthorizations are not sufficient to provide adequate redress to individuals whose health issues are not apparent until years or even decades later.

A. The September 11th Victim Compensation Fund (VCF)

To understand why RECA’s temporary structure is so damaging, it is useful to compare it to another victim compensation program. On September 22, 2001, shortly after the terrorist attacks, Congress passed the Air Transportation Safety and System Stabilization Act.⁴⁸ Title IV of this Act established the September 11th Victims Compensation Fund of 2001.⁴⁹

Like RECA, the VCF was created to provide prompt compensation to victims of a national tragedy, and it was established as a no-fault alternative to lawsuits. To qualify, you must be an individual (or representative of a deceased victim) who suffered physical harm or loss of life as a result of the terrorist-related aircraft crashes or subsequent debris removal efforts.⁵⁰ Between 2001 and its original expiration in June 2004, the VCF fund distributed over seven billion dollars.⁵¹ For nearly seven years thereafter, however, victims were in limbo, uncertain whether they would ever receive compensation for their suffering or loss.⁵² This pattern of sunset provisions and hesitant legislative action mirrors the instability now embedded in RECA.

Congress ultimately acknowledged that many health effects of toxic exposure do not manifest until decades later.⁵³ It repeatedly extended VCF before making it permanent through The Never Forget Heroes: James Zadroga, Ray Pfeifer, and Luis Alvarez Permanent Authorization of the September 11th Victim Compensation Fund.⁵⁴ The permanent designation of the VCF allowed individuals to file claims until 2090 without a cap on aggregate awards.⁵⁵ However, each award is calculated individually based on the claimant’s unique case, with limits on the amount of individual awards for economic and non-economic losses.⁵⁶ For example, the maximum non-economic award a claimant may receive for any one type of cancer is $250,000, but they may also recover economic losses based on their unique cases.⁵⁷

By contrast, RECA provides a blanket amount of $100,000, regardless of individual need or circumstance, and its eligibility remains tied to a restrictive list of eligible cancers or diseases and burdensome documentation requirements.⁵⁸ There is a stark disparity. If terrorism victims are entitled to a permanent compensatory scheme, then it is equally warranted for those harmed directly by their own government. Simply put, RECA’s current framework subjects downwinders to an endless cycle of legislative uncertainty, undermining its core purpose of justice and accountability, highlighting the need for a permanent compensatory scheme that mirrors the VCF.

Critics argue that permanent expansion of RECA would significantly contribute to the nation’s growing debt.⁵⁹ This concern is not unfounded. The Congressional Budget Office estimates that the One Big Beautiful Bill Act will increase the federal debt by nearly three trillion dollars by Fiscal Year 2034, or by five trillion dollars if the temporary provisions are permanently implemented.⁶⁰ A two-year extension of RECA makes a modest fiscal impact on the nation’s debt, costing approximately eight billion dollars; however, its permanent expansion will cost tens or even hundreds of billions of dollars.⁶¹

Yet the comparison to VCF demonstrates that Congress is willing to absorb substantial costs, but only in certain circumstances when it believes that justice is truly deserved. This disparity reflects the federal government’s reluctance to fully acknowledge its negligence in the nuclear testing program. Ultimately, RECA’s temporary structure dismisses the lives of downwinders as unworthy of equal redress. Permanence is not generosity—it is the minimum expression of fairness and equality for those who have fallen victim to harm by their government.

IV. Conclusion

Nearly eighty years have passed since the United States first conducted atomic weapons testing, releasing fallout from more than one hundred atmospheric detonations.⁶² For downwinders and others impacted, these consequences are not a distant memory but a daily reality, measured in shortened lifespans and communities’ persistent battles with radiation-induced illnesses. Furthermore, the lingering uncertainty of whether Congress will continue to recognize their suffering only exacerbates this. Victims should not be expected to heal when the government’s “apology” and reparations remain subject to an expiration date.

The 2025 expansion and reauthorization of RECA represents long-overdue recognition of downwinder harms, yet it still fails to provide the stability and level of compensation extended to other victims of national tragedies. Transforming RECA into a permanent compensatory scheme stands for more than guaranteeing downwinders financial redress; it acts as a lasting acknowledgement of the government’s role in exposing them to radioactive fallout. The statute’s sunset provisions suggest that even the government’s apology has an expiration date. It is well past time for Congress to enact RECA as a permanent statute, ensuring that downwind communities are not left in a cycle of uncertainty but are instead guaranteed the justice, accountability, and environmental fairness they have long deserved.

Cover Photo by Kim Tiu on Unsplash

Brookelynn Stone

References

1
Radiation Exposure Compensation Act (RECA), 42 U.S.C. § 2210.
2
Id.
3
Id.
4
Scott D. Szymendera, Cong. Rsch. Serv., R43956, The Radiation Exposure Compensation Act (RECA): Compensation Related to Exposure to Radiation from Atomic Weapons Testing and Uranium Mining (Jul. 19, 2024).
5
One Big Beautiful Bill Act (Budget Reconciliation Act of 2025), Pub. L. No. 119-21, § 100201-05, 139 Stat. 72, 394-401 (2025).
6
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7
Szymendera, Cong. Rsch. Serv., RECA, supra note 4, at 5.
8
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11
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12
Harvey Wasserman & Norman Solomon, Killing Our Own: The Disaster of America’s Experience with Atomic Radiation 147-51 (1982); see also Cancer Risk Projection Study for the Trinity Nuclear Test: Community Summary, Nat’l Cancer Inst. (Aug. 16, 2023), https://dceg.cancer.gov/research/how-we-study/exposure-assessment/trinity/community-summary [https://perma.cc/5G8W-8DJ8].
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Nat’l Cancer Inst., Cancer Risk Projection Study, supra note 12.
17
Bulloch v. United States (Bulloch I), 145 F. Supp. 824 (D. Utah 1956); Allen v. United States, 588 F. Supp. 247 (D. Utah 1984).
18
See generally Bulloch v. United States, 145 F. Supp. 824 (D. Utah 1956); Allen v. United States, 588 F. Supp. 247 (D. Utah 1984).
19
See generally Bulloch I, 145 F. Supp. 824.
20
Id. at 828.
21
Id. at 827.
22
Id. at 827-28.
23
See Bulloch v. United States (Bulloch II), 95 F.R.D. 123 (D. Utah 1982).
24
Id. at 145; see also Bulloch v. United States, 763 F.2d 1115, 1122 (10th Cir. 1985).
25
Allen v. United States, 588 F. Supp. 247, 258 (D. Utah 1984).
26
Id.
27
Id. at 446-47.
28
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29
Allen v. United States, 816 F.2d 1417, 1424 (D. Utah 1987).
30
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31
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33
Szymendera, Cong. Rsch. Serv., RECA, supra note 4, at 6-9.
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37
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38
Id.
39
Szymendera, Cong. Rsch. Serv., RECA, supra note 4, at 5.
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41
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43
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44
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46
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47
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50
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51
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53
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54
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55
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56
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57
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58
RECA, 42 U.S.C. § 2210 note.
59
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60
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61
Id.
62
Szymendera, Cong. Rsch. Serv., RECA, supra note 4, at 5.