Hydrogen Rising: IRS Released Proposed Regulation to Section 45V of Internal Revenue Code Public Comments DEADLINE February 26, 2024 Public Hearing March 25, 2024

January 31, 2024

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by John R. Kirkwood, Virginia M. Speck, Joshua L. Andrews, Aaron L. Szabo, Jason Deppen, Bryan Michael Allen (Biofuels Digest) In connection with the Inflation Reduction Act (IRA), on December 22, 2023, the Internal Revenue Service (IRS) released a Proposed Regulation related to Section 45V of the Internal Revenue Code.

The Proposed Regulation, among other things: (i) clarifies the credit amounts for clean hydrogen production; (ii) provides additional key definitions; (iii) identifies the model used to determine lifecycle greenhouse gas (GHG) emissions; and (iv) provides the verification process required under Section 45V.

The IRS is accepting written comments on the Proposed Regulation until February 26, 2024, and will hold a public hearing on the Proposed Regulation and comments on March 25, 2024.

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In addition to being subject to inflation, the credit is available to taxpayers for a 10-year period, beginning on the date that the qualified property is placed into service. To qualify under Section 45V, a qualified facility must begin construction by January 1, 2033.

Definition of ‘Facility’

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Lifecycle GHG Model

As the credit amount is determined by the lifecycle GHG emissions rate, it is important to understand the model that the IRS has selected to quantify emissions. The IRS elected to use a model that had been developed by the Department of Energy (DOE), but with specific modifications for use in hydrogen-based applications, specifically the 45VH2-GREET Model. The model, which was altered specifically for this tax credit by DOE’s Argonne National Laboratory, includes emissions calculation methods for the different pathways that hydrogen can be produced.

The IRS adopted this model for the flexibility it provides producers, including those looking to utilize carbon capture and sequestration (CCS) technology, but also stipulated that the 45VH2-GREET Model may be updated throughout the lifetime of a qualified facility. This means that a producer must use the latest version of the 45VH2-GREET Model that is available on the first day of a taxable year. There is a possibility under the Proposed Regulation that certain producers of clean hydrogen may lose their qualification for the credit if their production method is not included in the latest version of the 45VH2-GREET Model. If a taxpayer using a production pathway or technology is not included in the 45VH2-GREET Model for that particular year, then they may petition the Secretary of the Treasury for a provisional emissions rate (PER) which would measure the emissions on the same scale as the 45VH2-GREET Model.

In an effort to ensure that taxpayers are not able to “double-dip” on several IRA tax credits, a clean hydrogen production facility utilizing CCS will not be eligible to claim both the Section 45V hydrogen credit and the Section 45Q carbon capture credit. Additionally, any facility seeking to claim the Section 45V hydrogen credit will need to ensure that it did not claim the Section 45Q carbon capture credit in any prior years.

Verification of Processes

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1. Deliverability: To drive regional development of clean power generation, the Proposed Regulation specifies that the clean power used in the production of the hydrogen must be sourced from the same region as the hydrogen production facility. A “region” is defined under the Proposed Regulation as a U.S. region derived from the DOE’s 2023 National Transmission Needs Study.

2. Temporal Matching: The Proposed Regulation stipulates that producers utilizing EACs will need to be matched to production on an hourly basis. Essentially, that the clean power being generated is being utilized during the same hour that the producer is utilizing it (the hourly matching method). The IRS stated that cost effective technology to measure and achieve this level of temporal matching is currently out of reach and proposed a transitional phase to allow the EAC market to develop this technology. This transitional phase approach would allow for annual matching until December 31, 2027.

3. The Proposed Regulation requests comments on these three criteria and the broader use of CCS technology for power plants utilizing fossil fuels, including natural gas, landfill gas, biomass and coal gasification.

Service Date of Retrofitted Facilities

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Use of Renewable Natural Gas (RNG) in Hydrogen Production

The Proposed Regulation includes some criteria for facilities that produce clean hydrogen using RNG, such as biogas, in their processes, but largely seeks comments on how to incorporate them. Firms with a stake in these production methods should comment. READ MORE

Related articles

Growth Energy: Changing GREET Would Undermine Climate Goals, Harm U.S. Biofuel Producers (Growth Energy)
DOE sides with industry on hydrogen tax rules (E&E News)
New Study Finds Treasury’s Proposed Time-Matching Rules Would Stifle Adoption of Green Hydrogen (American Clean Power)
New Study Finds Treasury’s Proposed Time-Matching Rules Would Stifle Adoption of Green Hydrogen (North American Clean Energy)

Excerpt from Growth Energy: Growth Energy, the nation’s leading biofuel trade association, continued to urge the Internal Revenue Service (IRS) to follow the science, and the law, when developing greenhouse gas (GHG) lifecycle analysis (LCA) models used to assess eligibility for tax incentives under the biofuels provisions of the Inflation Reduction Act (IRA).

In comments on proposed Section 45V hydrogen regulations submitted today (February 13, 2024) to the IRS and forwarded to the IRA Interagency Working Group, Growth Energy called on the IRS to follow Congress’s intent and ensure that any “successor” LCA model developed to assess eligibility for IRA biofuels tax incentives, such as those governing hydrogen in Section 45V, sustainable aviation fuel (SAF) in Section 40B, and biofuels generally in Section 45Z, “closely adheres in function and conceptual approach to the Argonne GREET model in existence at the time Congress enacted the IRA.”

Growth Energy also argued that such successor GREET models should incorporate the best available science “based on accurate and credible data, particularly when accounting for inputs such as emissions from indirect land use change (iLUC) which can be relevant to biofuels’ LCA.” Growth Energy underscored the importance of using the best available science, noting that updated estimates of biofuels’ iLUC impacts are “two to four times lower” than the U.S. Environmental Protection Agency’s 2010 assessment. Outdated LCAs can “dramatically overestimate the carbon intensity of energy or fuel sources, risking the possibility of excluding them from qualification under the IRA,” which “not only undermines the decarbonization goals of the IRA but also harms producers and businesses.”

Growth Energy then offered a framework for “evaluating the best available science that the IRS should incorporate into any successor GREET model.” Adopting Growth Energy’s recommendations, the comment argued, will “create stability and certainty regarding the significant investments being made in low-carbon energy and fuel sources.” Failing to do so would jeopardize the ability of American biofuels to participate in next generation opportunities like SAF.

Today’s comment letter referred specifically to the IRS’ proposal for 45V but echoed many similar statements made previously by Growth Energy about the importance of modeling and the accuracy of the Argonne National Lab’s Greenhouse Gases, Regulated Emissions, and Energy Use in Transportation (GREET) model. Read the full version of today’s letter here. READ MORE

Excerpt from E&E News: The Department of Energy is pushing Treasury to relax the rules to give the industry time to embark on a massive expansion, according to three people familiar with the discussions.

DOE officials are concerned that the tax guidance proposed in December will hamstring their department’s hydrogen initiatives, including a $7 billion program to create regional hydrogen production hubs, said the people who have worked directly with DOE staffers on hydrogen policy.

The hydrogen credit — officially referred to as 45V — is a major part of the Biden administration’s climate agenda, which views the fuel as a clean source to decarbonize sectors of the economy such as heavy industry. The credit, which was created by the 2022 Inflation Reduction Act, will directly impact how much hydrogen the U.S. produces and the financial bottom line for many companies.

The department has been publicly supportive of the existing draft guidance. But DOE officials pushed for Treasury to adopt less stringent guidance before it was issued in December, said the three people, all of whom were granted anonymity to speak freely about the credit. Two of the people said DOE officials have continued to press for different rules in 2024.

One of the proposed rules — known as “additionality” — would require hydrogen made from electricity to use verified new low-carbon energy sources like solar farms.

“Their starting point is any form of additionality will limit the amount of available hydrogen, which in turn reduces the possibility of a hydrogen economy actually starting,” said one of the people familiar with DOE’s hydrogen discussions.

Now, the administration is working to finalize its tax guidance after a comment window closed Monday. The more relaxed rules that DOE advocated for, according to the three people granted anonymity, would make it easier to produce hydrogen with tax breaks in the U.S.

Environmentalists say strict rules that consider additionality are critical to ensure hydrogen is a low-carbon climate solution. The administration had received more than 29,000 comments on the proposal as of Wednesday.

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Another person who was granted anonymity said DOE has pushed for grandfathering, which would allow some of the first hydrogen projects to not have to meet stricter tax rules to receive subsidies.

In a December white paper, DOE said the proposed rules are needed to address the impacts of a hydrogen producer’s load on grid greenhouse gas emissions.

Without the rules, “there is a strong likelihood that the hydrogen production would in many cases significantly increase induced grid GHG emissions beyond allowable levels” for the hydrogen tax credit, the department said.

Environmentalists praised Treasury’s initial proposal for ensuring that hydrogen made from electricity has low to zero carbon emissions. However, it caused an uproar among most hydrogen producers, who say the rules will hamper investment. DOE’s private concerns with Treasury’s tax rules align the department with anxious hydrogen producers.

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The Clean Air Task Force echoed NRDC’s concern about allowing some existing clean energy to be used for hydrogen production in its letter. The task force added that Treasury should allow nuclear power plants that avoid shutting down by doing business with a hydrogen producer to receive tax credits if the facility passes one of two “economic tests.”

One of the tests would be for nuclear power plants to prove that they qualified for a separate zero-emission nuclear power production tax credit in two out of the last three years before they start producing hydrogen. READ MORE

Excerpt from American Clean Power: Delay of Imposition of Hourly Matching Requirements Would Speed Uptake of Green Hydrogen, Contribute to Decarbonization Efforts, Research Finds -- As the comments period comes to a close on the U.S. Treasury Department’s proposed guidance on clean energy investment and production tax credits for green hydrogen projects, a new study conducted by global energy and natural resources research and consulting firm Wood Mackenzie and commissioned by the American Clean Power Association (ACP) shows the Administration’s guidelines requiring hourly matching starting in 2028 will limit the ability of the green hydrogen industry to get off the ground.

Green hydrogen, produced using renewable electricity, is critical to decarbonizing the U.S. economy. The Department of Energy estimates low-carbon hydrogen can eliminate 10 percent of economy-wide emissions by 2050. While Treasury’s 45V tax credits are intended to catalyze the still-nascent low-carbon hydrogen industry in the U.S., the new study released today finds the Administration’s proposed guidelines will stifle green hydrogen deployment by making it too expensive.

Wood Mackenzie’s analysis finds that ACP’s proposal, issued in June 2023, leads to significantly more green hydrogen deployment by 2032 and puts the industry closer to the pathway required to achieve a net-zero emissions economy. Wood Mackenzie also concluded that the annual matching regime for first movers in ACP’s proposal would not lead to additional emissions. In fact, the Treasury proposal is expected to result in higher hydrogen emissions impacts due to the greater adoption of blue hydrogen that results from the lack of green hydrogen deployment.

Even under ACP’s proposed rules, the report stresses that more support is needed to achieve net-zero emissions economy-wide, or low-carbon hydrogen production targets such as those envisioned in DOE’s National Clean Hydrogen Strategy and Roadmap. The fledgling sector faces challenging market conditions.

“Green hydrogen is an important part of the U.S. decarbonization journey, but electrolyzer technology needs time to scale. Regardless of what time-matching guidelines are imposed, the market conditions for green hydrogen are challenging. It’s clear from our analysis that hydrogen will require support well into the 2030s, and that a more stringent temporal matching regime will result in reduced green hydrogen deployment,” said Wood Mackenzie’s Head of Global Hydrogen Consulting Melany Vargas.

“Getting this guidance right will determine whether a U.S. green hydrogen industry moves forward in the next decade. Green hydrogen is essential to addressing the climate crisis without harming American manufacturing. This study demonstrates that the current Treasury proposal will not achieve the economic or environmental goals articulated by Congress or the Administration,” said ACP CEO Jason Grumet. “If Treasury takes a close look at this data and the numerous analyses from companies hoping to invest billions of dollars in green hydrogen facilities, we believe they will make the changes necessary to get this industry off the ground.”

Wood Mackenzie’s study can be found here: https://cleanpower.org/resources/45v-implications-on-green-hydrogen-industry

About American Clean Power

The American Clean Power Association (ACP) is the leading voice of today’s multi-tech clean energy industry, representing over 800 energy storage, wind, utility-scale solar, clean hydrogen and transmission companies. ACP is committed to meeting America’s national security, economic and climate goals with fast-growing, low-cost, and reliable domestic power.

Follow ACP on LinkedIn, Instagram, Facebook, and Twitter, and learn more at cleanpower.org. READ MORE