New Publication: The ´Hydrogen Economy´ in the United States and the European Union: Regulating Innovation to Combat Climate Change

I had the honour to contribute a chapter to Donald Zillman, Martha Roggenkamp, Leroy Paddock and Lee Godden (eds). `Innovation in Energy Law and Technology´ (Oxford University Press, 2018). My colleague Prof. Joshua Fershee of West Virginia University and me explored the legal perspectives for the creation of  `Hydrogen Economies´ in the US and the EU. We used the example of fuel-cell cars and power-to-gas to illustrate legal possibilities and barriers. The book is available here. The introduction of the chapter is reproduced below.

Hydrogen is the most abundant element in our universe. It makes up 75 per cent of its mass and 90 per cent of its molecules.[1] Conveniently, hydrogen never runs out, making it a `forever fuel´.[2] According to proponents of hydrogen use, the abundance of hydrogen means that every human being has access to it, making hydrogen the first truly democratic energy in history.[3]

Moreover, because hydrogen does not contain a single carbon atom, it emits no carbon dioxide at the point of use.[4] The Australian electrochemist John Bockris, who created the term `hydrogen economy´, summed up the concept in 2002: 

`boiled down to its minimalist description, the Hydrogen Economy means that hydrogen would be used to transport energy from renewable sources over long distances and to store it (e.g. for supply to cities) in large amounts.´[5]

Hydrogen would become the primary energy source for our cars, homes, which would be powered not by polluting fossil fuels, but by hydrogen from pollution-free domestic sources.[6]

However, the reality of worldwide hydrogen use is rather sobering. To date, hydrogen has been almost exclusively used as feedstock for industrial applications (refineries)[7] and in fertilizer-production.[8] Crucially, both sectors meet their hydrogen-demand by hydrogen produced from or with the help of fossil fuels. 96 per cent of hydrogen is currently produced from fossil fuels,[9] which generates significant quantities of greenhouse gases[10] and a mere 4 per cent are derived from renewable sources.[11] The latter, hydrogen produced from renewable energy sources is referred to as `green hydrogen´, while the former, hydrogen produced from fossil fuels is called `grey hydrogen´.[12]

`Green´ hydrogen comes from two primary sources. First, there are biomass-based production technologies, and second, electrolysis based on electricity from renewable sources can play a leading role.[13] 
Biomass is the cheapest of all renewables, but has a limited potential for hydrogen, due to the competition between hydrogen, biofuels, and other uses for biomass.[14] Offshore wind via electrolysis could, therefore, play a very important role in hydrogen production after 2020.[15]

The creation of a `hydrogen economy´ is currently driven by the same two concerns around the globe. First, the ever-increasing amount of greenhouse gas emissions accelerates climate change. [16]  Second, the security of our energy supplies is critical to a safe and productive society.[17]

From a climate change perspective only the use of renewable energy sources to generate hydrogen is an option. Although hydrogen as an automotive fuel is virtually emission-free at the point of use, the production of ´grey´ hydrogen results in high carbon dioxide emissions.[18] Where hydrogen is produced from coal and used as car-fuel, CO2 emissions actually increase by 25 per cent on a well-to-wheel basis, compared to the CO2 emissions of conventionally fuelled cars.[19]


Moreover, in a `hydrogen economy´ the need to import fossil fuels from volatile regions could be diminished as hydrogen can be produced domestically.[20] The projected increase in global energy demand and the economic and geopolitical implications of possible shortcomings in the supply of oil have been major drivers of the hydrogen debate.[21]


The recent development of hydrogen as an energy carrier occurred in two waves.  A first wave, which did not yet differentiate between `green` and `grey` hydrogen, started in the late 1990s and peaked during the 2000s in the US. Major automakers have spent more than 2 billion US Dollars there developing hydrogen-fuel-cell-powered cars, buses, and trucks.[22] Hydrogen-fuel vehicles could play a critical role in reducing greenhouse gas emission in the United States where the transportation sector accounts for 34 percent of all US carbon emissions.[23]  

However, this development stagnated recently[24] and a second wave of hydrogen enthusiasts focussed more on `green` hydrogen and its integration into the energy system. To help with this integration of intermittent renewable energy a technology called Power-to-Gas was developed from the late 2000s onwards. It converts excess electricity to hydrogen and this hydrogen can be stored for later re-conversion to electricity.[25] The development and efforts to accelerate this technology accumulate in the EU.

The article is focussing on these two waves of hydrogen technologies to ‘green’ the transport and the energy sector: hydrogen fuel-cell vehicles and Power-to-Gas. It scrutinizes the legal frameworks of the two major economic areas, the USA and the EU, where the respective developments were kick-started. First, the development of hydrogen-fuelled cars in the United States will be discussed. Afterwards, the article focuses on the current and emerging regulatory framework in the EU for Power-to-Gas and hydrogen transportation as well as storage. The successful introduction of both technologies will depend on an accompanying legal framework to facilitate a viable market that may need some form of subsidization or a corresponding price on carbon to be successful.

[1] See `Hydrogen´ in `The Columbia Encyclopaedia´ (6th edition 2001).
[2] Peter Hoffmann `The Forever Fuel: The Story of Hydrogen´ (1981) 1.
[3] Jeremy Rifkin `The Hydrogen Economy´ (Tarcher 2002) 9 (hereinafter: Rifkin).
[4] Rifkin 8.
[5] John Bockris `The Origin of Ideas as a Hydrogen Economy and its Solution to the Decay of the Environment´ (2002) 27 International Journal of Hydrogen Energy 731-740.
[6] Joseph J Romm `The Hype about Hydrogen: Fact and Fiction in the Race to Save the Climate´ (2004) 3 (hereinafter: Romm).
[7] Hydrogen in a refinery is often derived from catalytic reforming of naphtha by steam to produce a light gasoline with a higher octance number, but hydrogen is also generated in smaller amounts by a common process used in refineries, referred to as `hydrocracking´ see Michael Ball, Werner Weindorf and Ulrich Bünger `Hydrogen Production´ in Michael Ball and Martin Wietschel (eds.) `The Hydrogen Economy: Opportunities and Challenges´ (2009) 279 (hereinafter: Ball/Weindorf/Bünger Hydrogen Production).
[8] The Hydrogen Council `How hydrogen empowers the energy transition´ (January 2017) 17 respectively ava (hereinafter: Hydrogen Council).
[9] International Energy Agency `Energy Technology Essentials Hydrogen Production & Distribution´ page 4 table 1 (hereinafter: IEA Hydrogen). Some sources even speak of up to 99 per cent hydrogen from fossil fuels, see Hydrogen Council 17.
[10] Romm 3.
[11] Ball/Weindorf/Bünger Hydrogen Production 279.
[12] Michael Ball `Why Hydrogen?´ in Michael Ball and Martin Wietschel (eds.) `The Hydrogen Economy: Opportunities and Challenges´ (2009) 38/39 (hereinafter: Ball); Rifkin 185-192.
[13] Ball/Seydel/Wietschel/Stiller 399. ´Michael Ball et al. in Michael Ball and Martin Wietschel (eds.) `The Hydrogen Economy: Opportunities and Challenges´ (2009) 399 (hereinafter: Ball/Seydel/Wietschel/Stiller).
[14] Ball/Seydel/Wietschel/Stiller 418.
[15] Ball/Seydel/Wietschel/Stiller 418.
[16] Ball 8.
[17] Ibid.
[18] Werner Weindorf and Ulrich Bünger `Energy-chain analysis of hydrogen and its competing alternative fuels for transport´ in Michael Ball and Martin Wietschel (eds.) `The Hydrogen Economy: Opportunities and Challenges´ (2009) 225-228 and 248.
[19] Ball/Seydel/Wietschel/Stiller 431/432.
[20] Ball 12-16.
[21] Ball 8
[22] Rifkin 9.
[23] The White House, United States Mid-Century Strategy for Deep Decarbonization,, at 41, Figure 4.9.
[24] See the reasons in Romm 3, 4
[25] Rifkin 9; for more details see section on Power-to-Gas below.


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