By Michael J. Connolly
Thelen Reid Brown Raysman & Steiner LLP


Introduction

Recent newspaper and magazine articles demonstrate that the rising price of gasoline and heating fuel and the public's awareness of global warming have reached a tipping point in terms of popular interest in alternative fuels and alternative energy systems. 1/

This increased popular attention, in the United States and in other countries, includes curiosity about the potential for development of a hydrogen economy. Scientists, politicians, authors and pundits have begun to address this potential.

With the recent passage of the Energy Policy Act of 2005 (PL 109-58), Title VIII of which is devoted exclusively to hydrogen, this is an appropriate time to better understand the legislation and its impact on the potential for a hydrogen economy.


The Much-Debated Hydrogen Economy

The role of hydrogen in the nation's energy future has been and continues to be the subject of a rather robust debate as to whether or not it is a technological dead-end and whether it deserves to have significant resources dedicated to it. 2/ The debate has been on scientific, economic, political and even legal liability grounds. 3/

In some scientific and economic circles, there are strong questions about the likelihood of the widespread use of hydrogen as a fuel for transportation and for industrial, commercial and residential energy purposes (over and beyond its current predominant production and use in the manufacture of ammonia for fertilizer, in the refining of oil into gasoline and in the manufacture of other chemicals). 4/ In these circles, a hydrogen economy is a fantasy.

If it is fantasy, however, a brief review of hydrogen-related legislation and political initiatives reveals that it is not a fantasy of new or recent origin. Moreover, for its proponents, hydrogen represents a potential solution to a looming energy crisis, or it is seen as one answer (among many) in the quest for reliable, diverse and renewable future sources of energy to power the U.S. economy.

Indeed, the federal government has been involved in supporting hydrogen usage and fuel cell development for more than 40 years, most notably in the nation's space program. 5/ Hydrogen-related legislative proposals began to appear in the 1980s, and hydrogen research became a separate DOE budget request line item by congressional mandate. 6/

In 1990, Congress passed the Spark M. Matsunaga Hydrogen, Research, Development and Demonstration Act of 1990 (42 USC §§12401, et seq.) that set forth for the first time a five-year management and implementation plan for hydrogen research and development in the United States. It created the Hydrogen Technical Advisory Panel, which was charged with assuring consultation and coordination regarding hydrogen research.

The Energy Policy Act of 1992 included a five-year research and development program on Renewable Hydrogen Energy (§2026 of the Energy Policy Act of 1992 at 42 USC §1343) that was to be conducted in conjunction with the 1990 act by supplementing ongoing activities of a similar nature at the Department of Energy (DOE) with a renewable component.

In 1996, Congress passed the Hydrogen Future Act, which amended the 1990 Act and repealed the renewable hydrogen energy section of the 1992 Act effective October 1, 1998. The impetus for this legislation was a perception that hydrogen R&D research was not receiving high enough priority from DOE. The 1996 law was intended to invest more resources in basic research by sharpening the purpose of the R&D and related demonstration projects into a program that would lead to the production, storage, transport and use of hydrogen for industrial, residential, transportation and utility applications with an emphasis on enabling the private sector to demonstrate technical feasibility. 7/

In May 2001, President Bush introduced his administration's energy policy initiatives, which included support for research into fuel cells, "a technology of tomorrow that can power a car with hydrogen, the most common element in the universe, and emit only steam as a waste product." 8/ Among other things, Mr. Bush's national policy called for exploring the possibility of a hydrogen economy.

Later in 2001, work began on a National Hydrogen Vision, which focused on moving toward a more secure and cleaner energy future for America, and on President Bush's national energy policy, which recognized that alternative energy technologies such as hydrogen show great promise. This work resulted in the 2002 publication of A National Vision of America's Transition to a Hydrogen Economy - to 2030 and Beyond, demonstrating (by its name) that the possibility of a hydrogen economy was a truly long-term goal with many obstacles but nevertheless a goal requiring both near-term and long-term commitments to basic research and technology development. 9/

In 2002, DOE announced a cooperative program with the research arm of the automotive industry called "FreedomCAR" to develop hydrogen fuel cells for petroleum-free cars and light trucks. 10/

In 2003, President Bush in his State of the Union Address announced a hydrogen fuel initiative aimed at developing commercially viable hydrogen-powered fuel cells so that the "first car driven by a child born in 2003 could be powered by hydrogen and pollution free." 11/

DOE began to implement the President's announced program in 2004 by allocating funds to research and vehicle demonstration projects. 12/ Also in 2004, the National Academies' National Research Council published The Hydrogen Economy: Opportunities, Costs, Barriers, and R&D Needs, concluding that for a viable hydrogen transportation system to emerge, four key challenges had to be addressed:

	1.	To develop and introduce cost-effective, durable, safe and environmentally desirable fuel cell systems and hydrogen storage systems.
	2.	To develop the infrastructure to provide hydrogen for the light-duty-vehicle user.
	3.	To reduce sharply the costs of hydrogen production from renewable energy sources over a time frame of decades.
	4.	To capture and store ("sequester") the carbon dioxide by-product of hydrogen production from coal. 13/

This abbreviated historical background shows that consideration of hydrogen as an element of the nation's energy future is not a new phenomena. Indeed, it also serves to show that hydrogen has become, in relative terms, a topic of increasing interest and attention although the reasons for this are arguably made up of a mix of political as well as technological and economic motivations. It shows that all or many of the promises of hydrogen are by no means "immediate." Rather, hydrogen energy is a part of a long-term vision, which, if to be realized at all, requires current and increasing strategic investment, focused research, and near-, mid- and long-term commercialization efforts. 14/ Indeed, the fundamentals of fuel cell price and durability continue to be among the key issues holding up the commercial introduction of fuel cells on a widespread basis and the initial realization of the hydrogen economy vision, dream or fantasy. 15/

This history is completed by considering the current "drivers" for increased interest in hydrogen and fuel cell technologies. They include the threat of global climate change associated with carbon dioxide and other greenhouse gas emissions and national security concerns about dependence on foreign oil and gas. The strength of these drivers is ratcheted upward by the recent rises in oil and gasoline prices. 16/

Against this thumbnail historical backdrop, following is a review of Title VIII of the Energy Policy Act of 2005. Title VIII - also referred to as the "Spark M. Matsunaga Hydrogen Act of 2005" - nominally acknowledges the history and continuity of congressional efforts to foster a national hydrogen policy. In this regard, Title VIII provides minor tweaks and additional funding to a history of congressional support for ongoing research and development administration initiatives and demonstrations of viable hydrogen-related technologies and delivery systems. 17/


Overview of Title VIII of the 2005 Energy Act

The act authorizes (but does not appropriate) funding of approximately $3.7 billion over five years to enable and promote hydrogen and fuel cell technologies (in partnership with industry) and to create a mature hydrogen economy in the transportation sector. The act seeks to decrease dependency on foreign oil, eliminate most transportation emissions and enhance energy security through the use of hydrogen and fuel cell technologies. Competitive merit-based and cost-sharing processes will be used to award assistance grants and contracts. 18/

Specific provisions include:

Coordinated Plan, §804: By February 8, 2006, the Secretary of Energy must transmit a coordinated plan to Congress for the hydrogen and fuel cell programs, including a five-year agenda with milestones. The plan also must address the significant technical and non-technical hurdles that stand in the way of achieving the program's goals.

Research and Development Goals: The purpose of the research and development program - to be undertaken by the Department of Energy in consultation with other federal agencies and the private sector - is to demonstrate and commercialize the use of hydrogen for transportation, utility, industrial, commercial and residential applications and to provide related public education and research. It calls for spending of $2 billion.

The act seeks to enable automakers to commit to offering safe, affordable, hydrogen fuel cell vehicles in the mass consumer market by no later than 2015 and, by 2020, to produce and market a vehicle that will have substantially higher fuel economy, lower emissions and equivalent crash integrity and occupant protection as 2005 model year light-duty vehicles. Also, the act seeks industry commitments for hydrogen fuel production, availability and related infrastructure in a similar time frame. 19/

Although there is a strong emphasis on transportation, because of its linkage to the emissions problem and the issue of foreign oil dependence, there clearly is an interest in research and development associated with utility, industrial, commercial and residential applications, which will have implications for utilities and generation suppliers. The research and development program is intended to result in production, storage and distribution-related cost reductions, increased efficiency and reduced emissions.

Whether or not the act's research targets are realistic remains to be seen. Recent hybrid-related developments in the auto industry and the views expressed by the National Academies suggest that the legislative goals for hydrogen transportation deployment may be too aggressive by a decade or more. 20/ Also, because the automakers are largely expending their own resources in connection with their fuel cell research and development efforts, it is likely that market forces and the auto makers' own strategic plans will dictate the timing of deployment.

Demonstration Projects, §808: A limited number of hydrogen and fuel cell-related demonstration projects will be funded by DOE.

The act calls for spending $1.3 billion for demonstration projects, including projects that involve using hydrogen and related products at existing facilities or installations such as office buildings, military installations, vehicle fleet centers, transit bus authorities and in parts of the national park system. The demonstration projects also include vehicle, portable and stationary demonstrations of fuel cell and hydrogen-based energy technologies. The funding also will be used to demonstrate systems such as advanced composite vehicle systems that reduce energy requirements and for design of local distributed hydrogen energy systems. 21/

Codes and Standards, §809: The act provides support for timely development of safety codes and standards for fuel cell vehicles; hydrogen energy systems; and stationary, portable and micro fuel cells. The act calls for spending $138 million on this.

Interagency Taskforce, §806: An interagency task force was to be established by the President by December 8, 2005, to plan for safe, economical and environmentally sound hydrogen fuel infrastructure; fuel cell applications; distributed power generation; uniform codes; and the integrity and safety of performance necessary to promote the goals of the hydrogen and fuel cell programs.

This task force is a new development, but in some respects it appears to make a creature of statute a body much like the Hydrogen Research and Development Task Force established by executive order in 2003. While it may become only a clearinghouse for information, its intended purpose suggests that it could provide a coordinated focus for integrating hydrogen-usage throughout the federal government.

Advisory Committee, §807: A Hydrogen Technical and Fuel Cell Advisory Committee is to be appointed from industry, academia and governmental agencies to advise the Secretary of Energy on programs and activities under the hydrogen and fuel cell programs.

This panel is a continuation of the Hydrogen Technical Advisory Panel created under the 1990 Act. The Secretary is not required to accept and implement the recommendations of this group, but the Secretary is obligated to report to Congress about such recommendations, DOE's analysis of them and its rationale for decisions regarding them.

Reports, §811: Reports by the Secretary of Energy will be submitted to Congress regarding activities and progress under the Title. Programs also will be subjected to periodic external reviews by the National Academy of Sciences.

Solar and Wind Technologies, §812: The act supports exploration and development of solar and wind technologies for the production of hydrogen by providing for the Secretary of Energy to prepare detailed roadmaps and submit them to Congress by December 8, 2005.

This includes demonstration projects. There will be five projects each to demonstrate the hydrogen production capabilities of solar and wind energy technologies. The importance of renewables to the hydrogen equation is in their potential to reduce (or even eliminate) dependence on fossil fuels to produce hydrogen, thereby eliminating the greenhouse gases associated with such production, reducing overall emissions, and reducing or eliminating the use of fossil fuels, thereby conserving them for more efficient and valuable purposes.


Additional and Related Energy Act Provisions

The act also contains hydrogen and fuel cell-related provisions under other titles in connection with general research and development and in connection with specific technologies, some of which are highlighted below.

Hydrogen from Nuclear, §§634, 642, 643: Commercial production of hydrogen from existing nuclear power plants will be pursued if it is determined to be cost-effective. Hydrogen production is included as an objective of the next generation of nuclear plants.

Fuel Cells: Many parts of the act seek to promote the development of fuel cells for stationary and transportation applications. Beginning in 2006, direct funding for fuel cells will be not less than $200 million through 2020 and in excess of $300 million in some years. Much of this funding is for market-stimulating purchases of fuel cells and for demonstration projects. Significant sums also are authorized for fuel cell-related projects, such as integration with coal gasification systems.

Other provisions involving fuel cells include:

	Title III, Oil and Gas, §356: Allocates $55 million a year (2006-2015) for alternative and renewable energy technologies to generate electricity at remote sites. The power generation equipment under this title can be fuel cell, wind turbine, photovoltaic, hydroelectric, wave or tidal energy.
	Title VII, Part 2, Advanced Vehicles, §§707 and 721: Provides for the development of a grant pilot program, under DOE's Clean Cities Program, to fund up to 30 geographically dispersed project grants to state and local governments and municipal transportation authorities to buy fuel cell buses, delivery vehicles, ground support vehicles at public facilities and hydrogen infrastructure equipment and to pay operational costs for them.
	Title VII, Part 3, Fuel Cell Buses, §731: Authorizes funding of $10 million each year (2006-2010) for DOE competitive, merit-based awards for five-year projects to demonstrate up to 25 fuel cell transit buses and their associated infrastructure in five geographically dispersed locations.
	Title VII, Subtitle C, Clean School Buses, §§741-743: Offers federal cost-sharing of $25 million a year (2006-2009) for fuel cell school bus demonstration programs using natural gas as the hydrogen source.
	Title VII, Subtitle D, Miscellaneous, §758: Includes authorizations of $50 million a year (2006-2010) for, among other things, NASA-administered funding for exploring advanced aircraft engine concepts, including hybrid fuel cell powered systems.
	Title VII, Subtitle F, Federal and State Procurement, §782: By 2010, any federal agency using a fleet of light- or heavy-duty vehicles must lease or purchase fuel cell vehicles and hydrogen energy systems to meet applicable energy savings goals in regulations to be promulgated by the Secretary of Energy no later than December 31, 2006. DOE is authorized to provide funding for such cooperative arrangements at levels of $15 million in 2008, rising to $65 million in 2010 and then continuing through 2015. The Secretary also may establish cooperative programs with, and offer incentives to, state agencies in order to encourage the purchase of fuel cell vehicles by such agencies.
	Title VII, Stationary, Portable and Micro-Fuel Cells, §783: Authorizes $20 million in 2006 rising to $100 million in 2010 through 2015 for the purchase or lease of appropriately efficient and reliable stationary, portable or micro-fuel cells by any federal agency that uses electrical power from a stationary, portable or microportable device.
	Title XIII, Energy Policy Tax Incentives, §§1335-1336: Provides a 30 percent Section 25 D tax credit of up to $500 per half kilowatt of capacity for purchase of a qualified residential fuel cell. A tax credit for business installations of qualified fuel cells of up to $500 per half kilowatt of capacity also is provided. Tax credits for such fuel cell installations end on December 31, 2007.
	Title IX, Concentrating Solar Energy, §§933-934: Promotes research and development regarding the feasibility of hydrogen production from water using only solar energy in order to evaluate the potential of concentrating solar power for hydrogen production.
	Title IX, Supporting Research and Development, §§952 and 974: Authorizes a program of fundamental research and development to support the hydrogen programs. It also supports methods of generating hydrogen that do not use natural gas, including nuclear power.
	Title XXVII, Incentives for Innovative Technologies, §1703: Provides loan guarantees for hydrogen fuel cell technology for residential, industrial and transportation applications as part of the act's incentives for innovative technologies.

Conclusion

The hydrogen and fuel cell provisions of the Energy Policy Act of 2005 reflect a public policy with historical roots. Hydrogen holds great promise in terms of its abundance, its ability to provide independence from foreign sources, and its ability to reduce or eliminate greenhouse gas emissions. However, as an energy carrier and as a technology, hydrogen faces great obstacles to full realization and implementation of its promise.

In adopting the act, Congress recognized the prudence of supporting research and development that will lead to transitional technologies that can be deployed economically and creatively to lead the way to the next generation of breakthroughs necessary to realize the full promise of a hydrogen economy. Assuming appropriations consistent with the legislative authorizations, the Energy Policy Act's target dates for demonstration and deployment of hydrogen vehicles, fuel cells and infrastructure will build on the last 15 years of congressional support for hydrogen research and development. Whether the amount and pace of national investment in promoting the assessment, testing and proving of hydrogen's viability as an answer to current and future energy and climate problems is sufficient, given the increasing weight of those problems, remains to be seen.

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ENDNOTES

1/	See, "Climate Study Warns of Warming and Losses of Arctic Tundra," New York Times, November 2, 2005, reporting on Stanford University-based study of global warming published on November 1, 2005, in The Journal of Climate [finding that the current rate of atmospheric accumulation of heat-trapping emission gasses will result in significant global warming, including a "near total loss of Arctic tundra"]; "Taking the Future for a Drive," New York Times, November 2, 2005 [reporting on Honda's isolated consumer testing of a Honda FCX, a hydrogen fuel cell-powered automobile]; "At Tokyo Auto Show, a Focus on Fuel, Not Fenders," New York Times, November 4, 2005 [reporting on the Tokyo Motor Show and the increasing focus by automakers on hybrids and alternative fuel vehicles. Analysts were quoted as saying that "the surging auto demand from fast-developing countries like China, India and Brazil is forcing carmakers to look seriously beyond gasoline and diesel fuel, which are increasingly expensive and are big producers of the gases that contribute to global warming."]
2/	This debate is recently evidenced in the work of advocates such as Amory Lovins of the Rocky Mountain Institute, author of numerous articles addressing the feasibility and economics of hydrogen development and use (for example, Twenty Hydrogen Myths, dated June 20, 2003, and updated on February 17, 2005, at www.rmi.org), or in the publicized exchanges between Dr. Daniel Sperling, professor of civil engineering and environmental science and policy and founding director of the Institute of Transportation Studies at the University of California, Davis, and Dr. Joseph Romm, a leading expert on clean energy technologies. Dr. Romm is the author of the report The Car and Fuel of the Future: A Technology and Policy Overview for the National Commission on Energy Policy (July 2004) and of The Hype About Hydrogen: Fact and Fiction in the Race to Save the Climate. Dr. Sperling recently wrote "The Hope for Hydrogen," an article appearing in Issues in Science and Technology, Spring 2004, and "Is There Hope for Hydrogen?" appearing in The Energy Bulletin, published October 11, 2004 by the American Chemical Society (www.energybulletin.net). See also, summer 2005 point-counterpoint online debate between Drs. Sperling and Romm at www.pbs.org/wgbh/nova/sciencenow/3210/01-point.html; Jeremy Rifkin's The Hydrogen Economy, Penguin Putnam Inc, 2002; ISBN 1-585421-93-6. Mr. Rifkin is an avid supporter of government funding for hydrogen-related research.
3/	For instance, in 2003, the Energy Law Journal published "Tort Law Considerations for the Hydrogen Economy" by Russell Moy at 24 Energy Law Journal 349. Mr. Moy argued that policymakers and technologists must not ignore the considerable legal liability issues and the considerable additional costs associated with the proposed hydrogen economy, based on his analysis of tort liability for negligence, products liability and abnormally dangerous activities. In 2004, the Energy Law Journal published "Hydrogen and Tort Law: Liability Concerns Are Not a Bar to a Hydrogen Economy" by William Vincent at 25 Energy Law Journal 385 in which Mr. Vincent counters Mr. Moy's conclusions. According to Mr. Vincent's analysis, the "research and experience with hydrogen. suggest" that the widespread use of hydrogen, even in consumer applications, should not give rise to unusually extensive liability. Mr. Vincent contends that the purpose of tort law is to allocate risk not to eliminate it, and in his view "hydrogen appears likely to create fewer liability issues than other fuels, provided the industry continues to develop safe technologies, codes and standards." Both articles provide a useful overview and sampling of the concerns and arguments about the use of hydrogen from a legal perspective. Of course, tort liability issues are not the only legal issues or concerns associated with the development and implementation of the hydrogen economy or even discrete hydrogen applications. They will or may include energy-related, environmental, intellectual property and securities legal issues.
4/	Hydrogen is the most abundant element in the universe. However, pure hydrogen is not widely available because most of it is contained in water or hydrocarbon fuels, such as natural gas.
5/	According to a 2003 report by the Progressive Policy Institute: "The federal government has played a small but important role in the development of hydrogen and fuel cells since the 1960s. Much of this effort has been confined to applications such as spacecraft or defense, where reliability is paramount and cost less crucial. The National Aeronautic and Space Administration (NASA) pioneered federal support of fuel cells as an efficient, reliable source of electric power onboard spacecraft. Because they are light, compact, produce little waste heat, and can produce electricity far from any stationary power source, the Department of Defense (DOD) has advanced fuel cell technology as a way to promote combat readiness, particularly in remote regions." See, www.ppionline.org/ ppi_ci.cfm?knlgAreaID=144 &subsecid=304&contentid=251177.
6/	In a keynote address at the National Hydrogen Association's 14th Annual U.S. Hydrogen Conference and Exhibition in Washington, D.C., on March 6, 2003, Hawaii Senator Daniel Akaka recounted the seminal legislative effort, which began in the 1980s: "My predecessor, Senator Spark Matsunaga, created the first formal hydrogen research program in this country, [which was] designed to accelerate development of a domestic capability to produce an economically renewable energy source. He introduced the legislation in 1982, and his perseverance led to the Matsunaga Hydrogen Act, enacted in 1990 shortly after his death." Spark M. Matsunaga was a representative and a senator from Hawaii from 1962 until his death in 1990.
7/	See, www.ch2bc.org/walker.htm discussing the advocacy of House Science Committee Chairman Robert S. Walker (R-Pa) on the hydrogen issue, which culminated in the passage of the Hydrogen Future Act of 1996.
8/	See, for example, remarks by the President to Capital City Partnership at the River Centre Convention Center in St. Paul, Minnesota on May 17, 2001. www.whitehouse.gov/ news/releases/2001/05/20010517-2.html.
9/	This DOE report can be accessed at www.eere.energy.gov/ hydrogenandfuelcells/pdfs/vision_doc.pdf.
10/	See, January 9, 2002 press release "USCAR Announces FreedomCAR Research Partnership with U.S. Department of Energy: Program Committed to Developing Technologies That Will Preserve American Transportation Freedoms."
11/	See, Hydrogen Fuel: A Clean and Secure Energy Future from report of Today's Presidential Actions dated January 30, 2003, on White House Web site at www.whitehouse.gov/ news/releases/2003/01/20030130-20.html.
12/	See, for example, April 27, 2004, DOE press release "Energy Secretary Spencer Abraham Announces $350 Million In Hydrogen Research Projects" at www.energy.gov/news/1330.htm
13/	This report was issued by the National Research Council and National Academy of Engineering of the National Academies, Committee on Alternatives and Strategies for Future Hydrogen Production and Use, the Board on Energy and Environmental Systems, and the Division on Engineering and Physical Sciences and is published by the National Academies Press, Washington, www.nap.edu. In addition, other DOE hydrogen-related policies, plans and reports can be located at: www.hydrogen.energy.gov.
14/	The long-term nature of the prospects for hydrogen is underscored by an Associated Press article in the September 14, 2005, Washington Post headlined: "Automakers Eye Hybrids As Gas Prices Rise." According to this article, "GM Vice Chairman Bob Lutz [commenting on the success of the Toyota Prius] said this kind of success has caused other automakers to take notice. In particular, he said, some companies that have been betting on pollution-free hydrogen fuel cell vehicles have decided to produce hybrids in the near-term, since hydrogen likely won't be a viable alternative for another decade. 'I think what happened was the manifest success of the Prius caused a rethink on everybody's part,' Lutz said. GM plans to debut a hybrid system on the Tahoe and Yukon trucks in 2007." Also, a September 15, 2005, article in the New York Times entitled "At Frankfurt Auto Show, a Reluctant Embrace of Hybrids" states: "BMW is investing heavily in the development of hydrogen-powered cars, which Mr. Panke said he believed was the long-term answer to dependence on oil. He acknowledged that because of distribution and storage problems, hydrogen would not be a marketable fuel for 15 to 20 years. Still, BMW has pledged to make a version of its seven-series sedan that runs on hydrogen and gasoline in the next few years. It displayed a rocket like, hydrogen-propelled vehicle here that it said achieved a speed of more than 300 kilometers an hour (187 miles an hour)."
15/	See, " Hydrogen economy -- an opportunity for chemical engineers?" by Rakesh Agrawal, Martin Offutt and Michael P. Ramage in the American Institute of Chemical Engineers (AIChE) Journal; 2005, Volume 51, Issue 6, pp. 1582-1589 in which the authors suggest that it could take "several decades" to develop inexpensive, hydrogen-powered fuel cells and that "success is not certain."
16/	For example, the Department of Energy summarily describes the benefits of a hydrogen economy as follows: "Widespread use of hydrogen as an energy source in this country could help address concerns about energy security, global climate change and air quality. Fuel cells are an important enabling technology for the Hydrogen Future and have the potential to revolutionize the way we power our nation, offering cleaner, more-efficient alternatives to the combustion of gasoline and other fossil fuels." Regarding national security, the summary continues: "Hydrogen and fuel cell technology have the potential to strengthen our national energy security by reducing our dependence on foreign oil. The U.S. uses about 20 million barrels of oil per day, at a cost of about $2 billion a week. Much of this is used to power highway vehicles. In fact, half of the oil used to produce the gasoline you put in your tank is imported. Hydrogen can be derived from a variety of domestically available primary sources, including fossil fuels, renewables and nuclear power. This flexibility would make us less dependent upon oil from foreign countries." With respect to climate change, the summary states as follows: "Greenhouse gases are thought to be responsible for changes in global climate. They trap excess heat from the sun's infrared radiation that would otherwise escape into space, much like a greenhouse is used to trap heat. When we drive our cars, and light, heat, and cool our homes, we generate greenhouse gases. But if we used hydrogen in very high efficiency fuel cells for our transportation and to generate power, we could significantly reduce the greenhouse gas (GHG) emissions - especially if the hydrogen is produced using renewable resources, nuclear power, or clean fossil technologies." See, www.eere.energy.gov/afdc/fuels/hydrogen_benefits.html. Of course, this discussion does not address the complexities and details of these drivers, which include, among other things, some controversial economic "field leveling" proposals, such as possible carbon cap and trade programs or other forms of carbon taxes.
17/	The Senate Energy Committee posted a summary of the act. With respect to Title VIII, the summary said that the act: Directs the Secretary to conduct a broad-based research program supporting private sector efforts in hydrogen and fuel cell development, including production, storage, distribution and use of hydrogen; and fuel cell applications for transportation and stationary uses. Sets a goal of enabling the private sector to make a commercialization decision on fuel cell vehicle production hydrogen for transportation by 2015. Requires enhanced public education and university research in fundamental sciences, application design and systems concepts, including materials, subsystems, manufacturability, maintenance and safety. Directs the Secretary to transfer critical hydrogen and fuel cell technologies to the private sector and to foster the exchange of non-proprietary information. Establishes demonstration programs for hydrogen technologies and fuel cell vehicles for light-duty and heavy-duty vehicles. Supports the timely development of safety codes and standards related to fuel cell vehicles, hydrogen energy systems and stationary fuel cells. See, energy.senate.gov/public/ _files/PostConferenceBillSummary.doc.
18/	A fuel cell is defined in Title VIII as "a device that directly converts the chemical energy of a fuel, which is supplied from an external source, and an oxidant into electricity by electrochemical processes occurring at separate electrodes in the device." (§803, Definitions)
19/	Infrastructure is defined in Title VIII as "the equipment, systems or facilities used to produce, distribute, deliver or store hydrogen (except for onboard storage)." (§803)
20/	See, the National Academies' National Research Council 2004 report The Hydrogen Economy: Opportunities, Costs, Barriers, and R&D Needs, supra.
21/	The concept of local distributed energy systems was described in 2001 as follows: "Hydrogen may enable much greater use of distributed energy systems, the small-scale, modular energy devices that can be located onsite or near the point of use. Currently, these systems include technologies such as fuel cells, micro-turbines, Stirling engines, photovoltaics, and energy storage devices such as batteries and flywheels. Distributed energy systems are being implemented across America in commercial development enterprises such as power parks and mini-grids. These are examples of multi-use facilities that use onsite power generation systems for meeting the total energy needs of local energy users including offices, factories and residential communities for power, heating, cooling and humidity control. In these and other applications, distributed energy systems provide users with onsite access, pinpoint control and the opportunity to have power available every minute of every day. This level of reliability is in demand from the high tech sector and other energy users. Reducing the barriers to distributed energy systems can help lay the foundation for hydrogen in the future." July 1, 2001, testimony of David K. Garman, Assistant Secretary of Energy, Energy Efficiency and Renewable Energy, on the "Robert S. Walker and George E. Brown, Jr. Hydrogen Future Act of 2001." www.eere.energy.gov/ office_eere/congressional_test_070101.html. This description compares favorably with §808 (b) (1) (B) of Title VIII, which calls for grants on a cost-share basis for designing a local distributed energy system that incorporates renewable hydrogen production, off-grid electricity production and fleet applications in industrial or commercial service; integrates such energy or applications as stationary, portable, micro and mobile fuel cells into a high-density commercial or residential building complex or agricultural community; and is managed in cooperation with industry; state, tribal and local governments; agricultural organizations; and non-profit generators and distributors of electricity. This appears to present an opportunity for multi-interest collaboration in demonstrating such systems.

©2005 Thelen Reid Brown Raysman & Steiner LLP