Hydrogen and Tort Law: Liability Concerns Are Not a Bar to a Hydrogen Economy

Article excerpt

I. EXECUTIVE SUMMARY

Hydrogen holds great promise to provide clean energy, produce major reductions in greenhouse gas emissions, and reduce or eliminate dependence on foreign oil. Although a complete transition to a hydrogen economy is decades away, significant advances are currently being made toward affordable, safe, and non-polluting energy based upon hydrogen.

Recent news reports suggest that widespread hydrogen use, particularly in consumer applications, could give rise to unusually extensive liability under the legal theories of negligence, strict products liability, and abnormally dangerous activities. The research and experience with hydrogen, however, suggest that the opposite may be true.

First, although hydrogen differs from gasoline, propane, natural gas, and other fuels, studies have shown that the differences do not make it any more dangerous. Hydrogen is non-toxic, disperses quickly if leaked, and produces no smoke or toxic fumes when burned. Furthermore, hydrogen burns faster, and at a lower temperature, and radiates far less heat than fires fed by other fuels.

Second, hydrogen has been in significant production and transportation for over fifty years and has an enviable safety record. Although there have been incidents involving hydrogen, a thorough search of the case law has failed to produce a single instance where liability was assessed as a result of hydrogen's unique nature. In fact, there are very few reported cases containing the word "hydrogen." By contrast, there are literally dozens of cases involving gasoline, natural gas, propane, and other fuels in use today.

Third, although there are technical challenges in delivering hydrogen at the consumer level, these challenges will likely be met by technology, training, and strong safety standards. Furthermore, significant investments are currently being made in each of these areas to promote such technological developments.

Finally, a strong national interest exists in pursuing alternative energy sources, including hydrogen. The national security, environmental, and other costs of continued fossil fuel reliance are too great. It is important to explore an alternative like hydrogen and ensure that public investments lead toward sustainable markets for these options.

II. INTRODUCTION

According to the U.S. Department of Energy (DOE), "[hjydrogen is a potential answer to satisfying many of our energy needs while reducing (and eventually eliminating) carbon dioxide and other greenhouse gas emissions."1 The promise of hydrogen is so great that President George W. Bush included a major hydrogen initiative in his 2003 State of the Union Address. California Governor Arnold Schwarzenegger announced a major initiative to create hydrogen highways in California, and hydrogen initiatives are underway in other states, such as New York and Ohio.3

Despite the great promise of hydrogen, the move toward a large scale use is not without its critics. History shows there will always be those who oppose shifts in traditional approaches. One relevant example involves reaction in Congress to the invention of the automobile.

Toward the end of the nineteenth century, the Congressional Horseless Carriage Committee (Carriage Committee) sounded alarms about the invention of the gasoline-powered car. The Carriage Committee found that because "horseless carriages . . . might attain speeds of 14 or even 20 miles per hourf,]"4 they constitute a "menace" requiring prompt legislative action.5 Furthermore, the Carriage Committee stated that horseless carriages "would wreck our agriculture" and involve "forces of nature too dangerous to fit into our usual concepts."6

Looking back, it is easy to see that the Carriage Committee's fears were not well justified. The internal combustion engine did not destroy agriculture, but rather, greatly enhanced it. Also, our regulatory and legal systems adjusted by allocating risk and responsibility, ensuring a vibrant industry and widespread consumer availability of the automobile. …