August 24, 2022, Will Bolgiano was quoted in S&P Global on the Federal Energy Regulatory Commission’s (FERC) authority to regulate hydrogen transportation under the Interstate Commerce Act (ICA).
According to the article, at least a dozen projects in the U.S. are poised to roll out new hydrogen pipeline infrastructure, seeking a share of the $9.5 billion that the bipartisan infrastructure law committed for developing the technology and the clean hydrogen production tax credits authorized in the Inflation Reduction Act. But the legislation did not specify which agency would regulate ratemaking and pipeline construction.
Legal analysts cite two relevant statutes when it comes to FERC's possible authority over hydrogen. The ICA is applied to give FERC ratemaking authority over common-carrier pipelines used to transport fuel. The Natural Gas Act (NGA) gives FERC even broader authority over natural gas specifically, including siting authority over new pipeline builds. "I do believe the Interstate Commerce Act is the best vehicle for hydrogen pipelines," Bolgiano said. "The first benefit would be regulatory certainty."
"I think the narrower scope of the ICA compared to the Natural Gas Act has advantages," said Bolgiano. "We don't want to regulate extraneous activities, like storage or upstream and downstream activities."
Bolgiano added that there are some gaps in applying the ICA without any new legislation. "It won't regulate a lot of aspects of the hydrogen business; it's a very different regulatory regime" than the NGA, Bolgiano said. However, "there will be legal challenges that will definitely be appealed, no matter where FERC ends up."