SCALING COMPENSATORY RESTORATION UNDER THE 1990 OIL POLLUTION ACT

摘要

A major feature of the Oil Pollution Act (OPA) of 1990 is a requirement that compensation be resource-based. This paper discusses the implications of resource-based compensation and the OPA 90 preference for narrowly-defined in-kind compensation. A framework is developed for evaluating compensatory scaling methods on the basis of the applicability of the method to the restoration project and the cost-effectiveness of the solution. The framework places potential compensation projects along a continuum, which ranges from strict inkind compensation applied to small injuries to full out-ofkind compensation applied to large injuries. This conceptual framework is used to augment the existing techniques for scaling compensatory restoration, which otherwise appear to us to be limited to addressing only projects at the two ends of the continuum. The advantages of this framework are that it (1) avoids the either/or nature of the scaling choices in the current situation by offering techniques to scale compensation projects that fall in between the two ends of the continuum, (2) protects both responsible parties (RPs) and Trustees against charges that scaling has taken place in an arbitrary manner, and (3) provides some guidance and criteria to determine when a particular scaling technique and related studies may be appropriate and lead to the most cost-effective solution.