The Infrastructure Investment and Jobs Act—Hydrogen

Hydrogen, the simplest element on Earth, is a versatile energy carrier, meaning it can store and transport energy produced from other sources. Entities can produce hydrogen from almost all energy sources, including renewable power, nuclear power, and natural gas. Hydrogen can then be used as a fuel option for a variety of applications, including transportation and electricity generation.

According to the International Energy Agency, “hydrogen is an increasingly important piece of the net zero emissions by 2050 puzzle.” When the Biden Administration made its new carbon emissions reduction target earlier this year, it noted that the US can address carbon pollution from industrial processes by supporting “new sources of hydrogen—produced from renewable energy, nuclear energy, or waste—to power industrial facilities.”

In the Infrastructure Investment and Jobs Act, Congress made similar findings. Congress found that “hydrogen plays a critical part in the comprehensive energy portfolio of the United States.” By using hydrogen resources, the United States can “promote energy security and resilience” and economic and environmental benefits.

Based on these findings, Congress:

• Defined Clean Hydrogen
  • Hydrogen produced from any fuel source can qualify as “clean” so long as it meets the carbon intensity requirement. This would include hydrogen produced from renewable, fossil fuel with carbon capture, utilization, and sequestration technologies, and nuclear.
  • Congress defined “clean hydrogen” to mean “hydrogen produced with a carbon intensity equal to or less than 2 kilograms of carbon dioxide-equivalent produced at the site of production per kilogram of hydrogen produced.”
• Established Department of Energy Programs Focused on Hydrogen
  • A clean hydrogen research and development program to advance and support a variety of goals including:
    • clean hydrogen production from a variety of energy sources, including fossil fuels with carbon capture, utilization, and storage; renewable energy; and nuclear energy;
    • clean hydrogen use for commercial, industrial, and residential electric power generation; industrial applications; as a fuel source for residential and commercial comfort heating and hot water; and in the transportation sector
    • clean hydrogen delivery and storage
    • hydrogen fuel cell development
    • domestic clean hydrogen equipment manufacturing
    • uniform codes and standards development focused on clean hydrogen production.
  • A clean hydrogen manufacturing initiative and a clean hydrogen technology recycling research, development and demonstration program. Congress appropriated $500 million for the program over FY22-FY26.
  • A clean hydrogen electrolysis program, focused on reducing the cost of hydrogen produced using electrolysis. Congress appropriated $1 billion for the program over FY22-FY26.
• Established a Charging and Fueling Infrastructure Grant Program
  • The Department of Transportation will run the grant program, which includes deployment of hydrogen fueling infrastructure.
• Established a Program for Four-regional Clean Hydrogen Hubs
  • These hubs will be a “a network of clean hydrogen producers, potential clean hydrogen consumers, and connective infrastructure located in close proximity.” The Secretary of Energy will select the regional clean hydrogen hubs based on feedstock diversity, end-use diversity, and geographic diversity. Congress appropriated $8 billion for the program over FY22-FY26.
• Required the Secretary of Energy to Develop a National Clean Hydrogen Strategy and Roadmap
  • This roadmap will include a focus on potential barriers, pathways, and opportunities to transition to a clean hydrogen economy including clean hydrogen production, potential use of existing infrastructure, developing clean hydrogen hubs, developing tools to advance integrated hybrid energy systems, and potential regulatory obstacles and points of interaction between federal agencies.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.