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

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