October 21, 2022

RTO Insider Features Joseph Hicks' Debate on Hydrogen Regulation at the Energy Bar Association's Mid-Year Conference

2 min

On October 16, 2022, Joseph Hicks was featured in RTO Insider's coverage of the Energy Bar Association (EBA) 2022 Mid-Year Energy Forum's debate on the regulation of hydrogen pipelines. During the session, panelists debated which, if any, of the existing laws, including the Natural Gas Act (NGA) and Interstate Commerce Act (ICA), apply to hydrogen transportation.

According to the article, the NGA governs gases that can be used for energy, while the ICA covers oil pipelines, which also transport gasoline, diesel, and jet fuel. One panelist asserted that hydrogen fits "pretty neatly" into the Federal Energy Regulatory Commission's (FERC) definition of natural gas as gas "created by the agency of man or the product of some kind of engineering process." The panelist also argued that FERC could assert jurisdiction over hydrogen as a natural gas under a more expansive reading of the word "natural," as hydrogen is a naturally occurring element. Under either definition, the panelist continued, the NGA is the right law for hydrogen.

Hicks countered that hydrogen is not an artificial gas. "The courts have looked at this multiple times. They've never said that hydrogen is an artificial gas; there's no precedent to support that. There the test appears to be about where the origin of the gas comes from, rather than its composition," he said.

Hicks said the ICA is "far less onerous in its requirements" than the NGA, with no certifications of pipelines or affiliate standards of conduct. NGA jurisdiction could also require corporate reorganization or revision of existing long-term contracts, he said. Hicks acknowledged that the ICA doesn't provide the eminent domain authority that comes with certification under the NGA. "But I think that's really a double-edged sword, considering how long it takes for pipelines to be certified. And there are plenty of petroleum products pipelines that have been built and operate in this country without siting authority."

Hicks said he could also support a new law for hydrogen that takes the best of both the ICA and NGA. "But right now, I think that — if the goal is to take the money that has been laid on the table by the government in this recent legislation and run with it as quickly as possible to decarbonize our economy — I think light regulation is better."

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