Biden Admin Unveils Tax Rules for ‘Clean’ Hydrogen Public Comment DEADLINE February 26, 2024

December 22, 2023

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by Brian Dabbs (Politico Pro Energywire) The guidance for the 45V tax credit aims to cut emissions produced by the industry. -- The Treasury Department released heavily anticipated tax guidance Friday that would force companies to use low-carbon or zero-emissions energy to power the hydrogen production process — a move designed to keep emissions in check for the emerging industry.

The regulations for the 45V tax credit, which are available for public comment for 60 days, outline how to qualify for up to $3 per kilogram of the cleanest hydrogen produced with prevailing wages and apprenticeship requirements. The administration says hydrogen produced by fossil fuels with carbon capture will qualify.

Under the plan, a 60-cent credit kicks in for a kilogram of hydrogen produced with four kilograms of carbon dioxide equivalent. Producers earn more credits with lower CO2 equivalent emissions.

“Clean hydrogen will be critical in reducing emissions from harder-to-decarbonize sectors like heavy industry and heavy transportation,” John Podesta, senior adviser to President Joe Biden for clean energy innovation and implementation, told reporters ahead of the proposal’s release. “Treasury’s proposal will help build that clean hydrogen industry, while including important environmental safeguards.” READ MORE

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Treasury puts out controversial guidance for hydrogen tax credit (The Gazette)
U.S. Department of the Treasury, IRS Release Guidance on Hydrogen Production Credit to Drive American Innovation and Strengthen Energy Security (U.S. Department of Treasury)
White House clean-energy spending boom puts Biden in the crosshairs -- The rollout of a multibillion-dollar ‘green’ hydrogen plan may help the U.S. dominate the energy transition — and give critics another target (Washington Post)
Clean hydrogen production credit rules announced -- Treasury and IRS released proposed 45V guidance on credit for hydrogen production, which may be available to some facilities into the 2040s (PV Magazine)
Industry leaders blast Treasury’s draft guidance for clean hydrogen tax credits -- Some leading hydrogen producers are already talking about suing to stop the implementation of the Treasury Department’s proposal, according to Mona Dajani, a partner at Baker Botts. (Utility Dive)
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Treasury Drops a Hydrogen Bomb -- Behold the brawl between green groups over a new tax credit for hydrogen power. (Wall Street Journal)
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Excerpt from The Gazette: "The guidance announced today by the Biden-Harris administration will place unnecessary burdens on the still nascent clean hydrogen industry," said Frank Wolak, the president and CEO of the Fuel Cell and Hydrogen Energy Association. "The nation needs common sense solutions for this tax credit that are aligned with the congressional intent to spur robust economic development and create jobs while reducing carbon emissions."

On the other hand, several green hydrogen companies and renewable energy groups, who are likely to benefit the most from the guidance, cheered the proposed rules.

"By adopting strong standards focusing on emissions intensity, the United States will secure a leadership position in the energy transition and catalyze global investment and demand for clean hydrogen to support long-term, economy-wide decarbonization," said Laura Luce, the CEO and founder of the green hydrogen company Hy Stor Energy.

As it stands, the guidance determines the tax credit based on how much carbon emissions are emitted through the hydrogen production process, ranging between 60 cents to $3 per kilogram of hydrogen, with the highest tax credit being limited to wind, solar, and other renewables that were built within the first three years of operation for a hydrogen facility.

The proposed guidelines would also require hydrogen production to be matched with clean power generation annually until 2027. By 2028, the credit criteria will switch to "hourly matching," a standard that has garnered controversy from the industry, which has argued that it's unfeasible to implement.

"If you go to a place like Finland, which has almost a 90% renewable grid, you don't have to worry about time-matching at all," said Andy Marsh, the CEO of Plug Power, a company specializing in producing hydrogen fuel cells. But for a country like the United States, the strategy wouldn't be ideal until the next decade, Marsh said.

The guidance would further require that the clean energy powering hydrogen production be sourced from the same region in efforts to limit how much emissions are emitted from electrolyzer.

The tax credit would also be eligible for hydrogen produced from natural gas combined with carbon capture and storage under certain conditions.

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However, production of "green" hydrogen — that is, hydrogen produced via non-carbon-emitting energy sources — will be dependent on the development of renewable energy, which has been hindered as utilities struggle to connect solar and wind sources to the grid and permitting approvals for projects lag.

Furthermore, differing visions for how to implement the tax credit have spurred intraparty conflict among Democrats. In an October letter sent to Treasury Secretary Janet Yellen, Sens. Sheldon Whitehouse (D-RI), Martin Heinrich (D-NM), Jeff Merkley (D-OR), and others urged for the department to keep the guidelines stringent in order to ensure the subsidies will not be used as a lifeline for fossil fuels.

Other Democrats, however, argued for the guidelines to be more flexible in order to spur growth within the industry. Sen. Maria Cantwell (D-WA) led a group of Democrats in a separate letter to the Treasury, arguing against the very principles the previous group had advocated for. READ MORE

Excerpt from U.S. Department of Treasury: Today the U.S. Department of the Treasury and Internal Revenue Service (IRS) released proposed regulations on the Clean Hydrogen Production Credit established by the Inflation Reduction Act (IRA), part of President Biden’s Investing in America agenda and a key pillar of Bidenomics, which is creating good-paying jobs, strengthening energy security, spurring private-sector investment to build the clean energy economy, and combatting the climate crisis.

“The Biden-Harris Administration is driving American innovation in emerging industries to create good-paying jobs, strengthen U.S. energy security, and help the U.S. clear hurdles in our clean energy transition,” said U.S. Secretary of the Treasury Janet L. Yellen. “Incentives in the Inflation Reduction Act are helping to scale production of low-carbon fuels like hydrogen and cut emissions from heavy industry, a difficult-to-transition sector of our economy.”

“Today's announcement will further unprecedented investments in a new, American-led industry as we aim to lead and propel the global clean energy transition,” said U.S. Secretary of Energy Jennifer M. Granholm. “Hydrogen has the potential to clean up America's manufacturing industry, power the transportation sector and shore up our energy security all while delivering good-paying jobs and new economic opportunity to communities in every pocket of America.”

“The Inflation Reduction Act’s hydrogen tax credit will help build a clean hydrogen industry that will be critical in reducing emissions from harder-to-decarbonize sectors like heavy industry and heavy transportation,” said John Podesta, Senior Advisor to the President for Clean Energy Innovation and Implementation.

While clean hydrogen holds considerable potential to reduce emissions across a range of sectors and applications, conventional hydrogen production typically results in significant climate pollution. The Clean Hydrogen Production Credit aims to make production of clean hydrogen with minimal climate pollution more economically competitive and accelerate development of the U.S. clean hydrogen industry. Today’s proposed regulations advance those goals and will support the development of a robust U.S. clean hydrogen industry that creates good-paying jobs, while also reducing carbon emissions.

The Treasury Department’s Notice of Proposed Rulemaking (NPRM) provides definitions of key terms in the statute, including lifecycle greenhouse gas emissions, qualified clean hydrogen, and qualified clean hydrogen production facility. The safeguards outlined in the proposed rules are critical to preventing the credit from subsidizing hydrogen production with higher lifecycle greenhouse gas emissions than allowed by the statute.

The NPRM was developed after extensive consultations with experts across the federal government, particularly the Department of Energy (DOE), which oversees Argonne National Lab’s administration of the GREET model, and the Environmental Protection Agency (EPA), which administers the Clean Air Act. The proposed regulations provide guidance based on the statute’s references to the Clean Air Act and the GREET model.

The NPRM also takes comment on important issues where Treasury anticipates providing further clarity and certainty in the final rules. The NPRM will be open for public comment for 60 days once it is published in the Federal Register, and Treasury and the IRS will carefully consider comments before issuing final rules.

THE IRA CLEAN HYDROGEN PRODUCTION CREDIT

The IRA establishes a Clean Hydrogen Production Credit with four technology-neutral credit tiers based on the emissions rate of a hydrogen production process. For hydrogen production facilities meeting prevailing wage and registered apprenticeship requirements, the amount of the credit ranges from $.60 per kilogram (kg) of hydrogen produced to $3 per kg of hydrogen, depending on the lifecycle emissions of the hydrogen production.

The statute requires that credit eligibility be determined under the Clean Air Act’s definition of lifecycle greenhouse gas emissions, including significant indirect emissions, through the point of production. The statute also requires that lifecycle greenhouse gas emissions be determined under the most recent GREET model. The credit is available for 10 years starting on the date that a hydrogen production facility is placed into service for projects that begin construction before 2033, meaning it will remain available for some facilities well into the 2040s.

The NPRM is technology-neutral and describes how taxpayers must use the 45VH2-GREET model developed by Argonne National Laboratory to determine lifecycle greenhouse gas emissions. The statute also requires that to claim the credit, a taxpayer must have production and sale, or use of clean hydrogen verified by a qualified, unrelated third party. For taxpayers unable to use the 45VH2-GREET model because their hydrogen production technology and/or feedstock is not included, those taxpayers may petition the Secretary of the Treasury for a provisional emissions rate analogous to the lifecycle greenhouse gas emissions rate calculated using 45VH2-GREET.

HYDROGEN PRODUCED USING ELECTRICITY

The Treasury Department’s proposed rules describe how taxpayers may use energy attribute certificates (EACs), which demonstrate the purchase of clean power, to assess and document qualification for a particular credit tier. The proposed rules explain the three criteria that must be reflected in EACs being purchased by hydrogen producers claiming the tax credit:

New clean power (Incrementality): Clean power generators that began commercial operations within three years of a hydrogen facility being placed into service are considered new sources of clean power. Generation resulting from a generator’s newly added capacity (“uprates”) are also considered new sources of clean power. The proposed rules also request comments on approaches by which generation from existing clean power generators could be considered to meet the requirements for new clean power under certain circumstances.
Deliverable clean power: Clean power must be sourced from the same region as the hydrogen producer, as derived from DOE’s 2023 National Transmission Needs Study. The proposed rules also request comment on how to consider transmission of clean power between regions.
New, deliverable clean power generated annually, with a phase-in to hourly generation (Time-matching): EACs will generally need to be matched to production on an hourly basis—meaning that the claimed generation must occur within the same hour that the electrolyzer claiming the credit is operating. The proposed rules include a transition to allow annual matching until 2028 when hourly tracking systems are expected to be more widely available and seeks comment on this transition timeline.

HYDROGEN PRODUCED USING RENEWABLE NATURAL GAS

The proposed rules detail eligibility requirements for hydrogen production from landfill gas in certain circumstances. Treasury and IRS anticipate finalizing rules in which additional hydrogen production pathways using renewable natural gas (RNG) and fugitive methane, such as coal mine or coal bed methane, qualify and are seeking public comment on conditions for qualification while adhering to the standards in the statute.

SUPPORTING ANALYSIS

The NPRM is supported by a technical paper from DOE that considers how to assess lifecycle greenhouse gas emissions associated with hydrogen production using electricity. Treasury is also citing to a letter from EPA to Treasury explaining how its prior interpretations of the Clean Air Act could inform Treasury’s implementation of the statute given the statutory reference to the Clean Air Act. In addition to the Treasury Department’s NPRM, DOE is releasing the 45VH2-GREET model that taxpayers will use to calculate the 45V credit and an updated GREET user manual.

Excerpt from E&E News Energywire: The final rules “may be more beneficial comparatively to hydrogen production,” said Timothy Fox, managing director for ClearView Energy, noting that Treasury has “wiggle room” to make changes.

The guidance regulations are available for public comment until Feb. 26. A public hearing is scheduled for late March.

The Biden administration says it hopes the tax credit will lower the cost of hydrogen produced with renewable energy and fossil fuels tied to carbon capture to $1 per kilogram by 2031.

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As the administration weighs public comments, here are three issues still to be decided in 2024 that could shape the emerging industry.

How do you define new clean energy?

Under the Treasury guidance, a clean electricity source is considered new if it comes online and starts powering the grid within three years before a hydrogen production facility uses it. For example, if a hydrogen facility comes online in January 2026, it must use clean power added to the grid between January 2023 and 2026.

Hydrogen producers also must get official documentation known as energy attribute certificates to prove that the new clean energy is powering their facilities and comes from the same region.

Additionally, the rules allow hydrogen producers to count existing clean electricity — such as wind, solar, nuclear and hydropower facilities — as a new energy source if those facilities increase their generation.

However, Treasury is seeking comments on multiple proposed exemptions.

One proposal would allow 5 to 10 percent of hourly clean energy generation from an existing facility powering the grid before 2023 to count as a new clean energy source. That means that power from some wind or solar farms or nuclear reactors operating now theoretically could qualify.

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Will nuclear get a boost?

Treasury’s guidance doesn’t detail how “pink” hydrogen producers using nuclear power can benefit from the credit, but it does offer some indirect olive branches to the nuclear industry. Even so, it is yet to be determined how much the incentives might boost reactors.

“A 5 percent threshold really does almost nothing for [pink hydrogen], it just doesn’t make [hydrogen production] financially feasible,” said Marty Pugh, a corporate tax partner at K&L Gates.

Similarly, Barbara de Marigny and Thomas Holmberg, partners at the law firm Baker Botts, said on a joint call that some hydrogen developers, including ones using nuclear power, are “extremely unhappy” with the idea of allowing 5 to 10 percent of hourly clean energy from existing reactors to count as new generation. The incentive is not enough to support the costs of nuclear-powered hydrogen projects, they say.

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How many fossil fuel projects will qualify?

For “blue” hydrogen producers aiming to use fossil fuels and carbon capture, a key question is whether they should apply for 45V or a different tax credit for carbon capture technology, known as 45Q.

The answer could ultimately impact which projects get supported and the level of industry emissions.

Hydrogen producers cannot use both tax credits for the same facility under the Inflation Reduction Act.

Treasury’s hydrogen guidance adopted the 45VH2-GREET model, which outlines how federal officials will count the emissions for eight types of production, including five methods using fossil fuels with carbon capture. Currently, Treasury is seeking comments on how blue hydrogen producers can verify their rate of carbon capture.

The GREET model requires companies to consider upstream emissions, such as the processing and delivery of fuel, as well as direct emissions from hydrogen production facilities. Analysts say until more specifics on projects are released, it’s uncertain how much blue hydrogen might qualify.

Extensive questions for blue hydrogen producers “demonstrate the proposed regulations’ general aversion to fossil-fuel powered electrolytic hydrogen, and likely will further delay the deployment of a robust hydrogen economy in the United States,” wrote partners at K&L Gates in a blog post.

DOE did not include five types of hydrogen production, including using renewable natural gas from animal lagoons and fossil-fuel-based methane pyrolysis, in the GREET model. Methane pyrolysis is an emerging technology that splits natural gas into hydrogen gas and solid carbon.

The department is seeking comment on other forms of renewable natural gas, aiming for clarity on issues such as the availability of certificates detailing emissions associated with the transportation of the fuel.

For fossil-fuel-based types of hydrogen production not included in the model, companies will have to petition DOE for a provisional emissions rate to determine if their projects can meet the bar for 45V.

As for 45Q, the carbon capture industry is awaiting updated guidance on how to receive that credit, which provides a monetary value for carbon dioxide that’s permanently stored through geologic storage, enhanced oil recovery or use in products.

Finalizing 45Q guidance will be essential to provide the certainty necessary for “carbon management projects to move forward in securing project financing and breaking ground on construction, “ said the Carbon Capture Coalition — a group of companies and organizations supporting the technology — after the release of the hydrogen plan. READ MORE

Excerpt from Politico's Power Switch: The Biden administration’s effort to jump-start the hydrogen power industry has sparked a heated debate over what constitutes “clean” hydrogen — a question that has generated as many as 30,000 answers.

That’s how many comments the Treasury Department received on its draft rules for how hydrogen companies can qualify for generous tax credits included in President Joe Biden’s signature climate law, writes Christian Robles.

The agency held its first public hearing on the rules last week, where industry players and environmentalists duked it out. A major point of contention emerged around Treasury’s proposed requirement that companies use new low-carbon energy sources, rather than existing generators, to make hydrogen fuel.

While hydrogen is by definition carbon-free, it takes energy to make energy — meaning the gas is only as climate-friendly as its production process. The bulk of hydrogen energy produced in the U.S. today is extracted from natural gas, which releases planet-warming pollution into the atmosphere.

The Biden administration’s goal is to produce 10 million metric tons of hydrogen fuel annually by 2030 using new solar, wind or other renewable power. The rationale is that using electricity from the grid — without adding new clean power to meet the increased demand — would boost fossil fuel use.

But critics of Treasury’s proposal say the requirement threatens to kneecap the nascent industry. It could, for example, stymie the use of nuclear energy, which is carbon-free, to produce hydrogen, argued Dorothy Davidson, CEO of the MachH2 hydrogen hub. Building new nuclear reactors is too expensive and takes too long to be worth it for her company, which is in negotiations with the Energy Department for up to $1 billion in federal funding.

Another company CEO, Andy Vesey of Fortescue Future Industries, said the requirement to use new clean power sources would take five years or more to fulfill, delaying operations and increasing costs by 20 percent.

Still, at least four companies have said they plan to move forward with major hydrogen projects that comply with Treasury’s rules, said Erik Kamrath, a hydrogen advocate for the Natural Resources Defense Council.

That’s enough to produce 6 million metric tons of clean hydrogen, according to the White House. READ MORE

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