It's easy really - like all market based solutions are. It only requires one simple policy change and the law to support it. In essence it's this: Once a federal emergency is declared, if you scoop it, you own it. At $80 bucks a barrel that not only creates a potentially profitable industry, but will clean the oil up far faster than any bureaucratically driven solution.
In a few weeks an army (ok ... a Navy) of unemployed fishermen will swarm on that oil spill using all sorts of innovative methods to clean up the oil and sell it back to the oil companies. They can all make a living until the oil is cleaned up, and once it is, they can go back to shrimp.
Apart from the union's stranglehold on the federal government and the administration's natural distrust of the idea of 'free markets', I don't know why no one is suggesting it. More to the point, why isn't someone on the right suggesting it? I'm pretty sure there are already high seas salvage laws in place that could provide a framework for something like this.
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When property is lost at sea and rescued by another, the rescuer is entitled to claim a salvage award on the salved property. There are two types of salvage: contract salvage and pure salvage, which is sometimes referred to as "merit salvage".
In contract salvage the owner of the property and salvor enter into a salvage contract prior to the commencement of salvage operations and the amount that the salvor is paid is determined by the contract. The most common salvage contract is called a "Lloyds Open Form Salvage Contract".
In pure salvage (also called "merit salvage"), there is no contract between the owner of the goods and the salvor. The relationship is one which is implied by law. The salvor of property under pure salvage must bring his claim for salvage in federal court, which will award salvage based upon the "merit" of the service and the value of the salvaged property.
Pure salvage claims are divided into "high-order" and "low-order" salvage. In high-order salvage, the salvor exposes himself and his crew to the risk of injury and loss or damage to his equipment in order to salvage the property that is in peril. Examples of high-order salvage are boarding a sinking ship in heavy weather, boarding a ship which is on fire, raising a ship, plane, or other sunken property, or towing a ship which is in the surf away from the shore. Low-order salvage occurs where the salvor is exposed to little or no personal risk. Examples of low-order salvage include towing another vessel in calm seas, supplying a vessel with fuel, or pulling a vessel off a sand bar. Salvors performing high order salvage receive substantially greater salvage award than those performing low order salvage.
In order for a claim to be awarded three requirements must be met: The property must be in peril, the services must be rendered voluntarily (no duty to act), and finally the salvage must be successful in whole or in part.
There are several factors that would be considered by a court in establishing the amount of the salvor’s award. Some of these include the difficulty of the operation, the risk involved to the salvor, the value of the property saved, the degree of danger to which the property was exposed, and the potential environmental impacts. It would be a rare case in which the salvage award would be greater than 50 percent of the value of the property salvaged. More commonly, salvage awards amount to 10 percent to 25 percent of the value of the property.
I'm no lawyer and I find that I can't even think like one when I try. But it seems to me that it would be no big (Obama sized) stretch of legal authority to make a special case for the salvage of oil in a spill zone.
Considering that liability for damage to the shoreline and fisheries could exceed the value of the oil itself, it doesn't seem like a big stretch to announce an extra award per barrel as part of the emergency declaration too.
Jurisdiction to determine the amount of the award to the csalvor in a merit salvage case lies exclusively with the judicial branch. The Court gives the award to the slavor that must be paid by the vessel owner.
The more interesting question is whether the recovered oil is flotsam at all, because it came from the ground, rather from a vessel - in this case the drilling platform.
If it is not flotsam, the recovery of the oil may fall under the United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty. I am not sure how our government administers its Exclusive Economic Zone (EEZ) other than by the Executive branch granting licenses. So Obama may have the power to implement the solution you suggest.
Has all this mumbo jumbo made your head hurt yet?
Well lets just say it's outside my domain.
But I will say this - as fast and loose as the current administration is with legally binding authority, this seems to me like there would be a legal means to make this happen without 12 gazillion pages.
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