Tort Law Considerations for the Hydrogen Economy
Moy, Russell, Energy Law Journal
Hydrogen and fuel cell technologies are being championed as the way to further environmental and national security policy objectives.1 The widespread enthusiasm accompanying these technologies is apparent in recent policy initiatives.2 For example, in his 2003 State of the Union Address, President Bush proposed $1.2 billion in funding to develop "clean hydrogen-powered" automobiles.3 In January 2002, Secretary Abraham of the U.S. Department of Energy (DOE) announced the Administration's plan to develop a hydrogen fueled "Freedom CAR."4 State governments5 and a number of industrial firms6 are also involved. These programs have created a fervor where potential obstacles to widespread deployment of hydrogen technologies to the general public are rarely discussed and liability implications are seldom considered. Furthermore, none of the current studies or policy initiatives on the hydrogen economy address tort liabilities that could be associated with the unique physical properties of hydrogen.
The unique physical properties of hydrogen lead to significant differences in the use, hazard detection, and likelihood of injuries as compared to other conventional or alternative fuels. Therefore, consideration of tort law issues associated with hydrogen, including negligence, products liability, and abnormally dangerous activity could impose additional operational costs as insurance premiums or in the management of potentially adverse publicity. These additional costs have yet to be considered in the discussion of the hydrogen economy.
The heart of the hydrogen economy is the fuel cell. Fuel cells are similar to batteries in that they chemically combine two reactants to generate electricity.7 In a battery, the reactants and reaction products are permanently contained. Some batteries can be recharged with an external power supply that drives the discharge chemical reactions in reverse. A fuel cell differs from a battery because it does not permanently contain either the reactants or reaction products.8 A fuel cell operates by pumping reactants into the cell, as reaction products are vented and electricity is generated. Fuel cells are not electrically rechargeable but, in principle, can operate indefinitely as additional reactants are supplied.
The reactants used in virtually all fuel cells are oxygen, obtained from air, and hydrogen, with water as the reaction product. A few experimental systems substitute methanol for hydrogen because engineering the reactant storage system for direct methanol fuel cells is simplified as methanol is a liquid at room temperatures.9 These systems, however, have lower current densities than hydrogen fuel cells and produce carbon dioxide (CO2). Furthermore, there are serious concerns that because methanol is water soluble, leaks in storage tanks associated with the distribution infrastructure could contaminate groundwater supplies.10 Some engineers have proposed hydrogen distribution systems based on chemical compounds such as sodium hydride.11 However, at least a few of these systems involve recycling procedures that are subject to the Resource Conservation and Recovery Act (RCRA), and are burdened with compliance costs for Environmental Protection Agency (EPA) regulations associated with the handling of hazardous wastes.12
Devices called reformers, designed to convert gasoline or methanol to hydrogen (and CO2) on demand, are being developed, because they take advantage of the existing energy infrastructure.13 However, it will be a challenge for those self-contained chemical plants, combined with already expensive fuel cells, to compete with conventional or alternative fuel systems (e.g., natural gas, batteries) in terms of cost, weight, or packaging volume.
Certain characteristics of hydrogen are attractive and widely touted. Unlike petroleum or other hydrocarbon fuels, hydrogen used in vehicles or stationary fuel cell applications produces only water vapor emissions. …