The most efficient use of funds: DOE can and should use hydrogen hubs funding to build out transportation corridors
DOE should use its authority under the Infrastructure Investment and Jobs Act (IIJA) to allocate hubs money to hydrogen distribution and delivery infrastructure along transportation corridors that will receive clean hydrogen from hubs.
The U.S. Department of Energy’s (DOE) Regional Hydrogen Hubs program is well underway, with five hubs having been awarded. DOE and hubs are at a critical point in the planning process, and building synergistic links between hydrogen hubs and clean trucking corridors is an efficient and effective use of hubs funding. This is a particularly good use of resources given the geographic alignment between awardees of DOE and Department of Transportation’s clean transportation corridors grant program and the selected hydrogen hubs.
DOE has the authority to provide hydrogen hubs funding to hydrogen refueling stations on transportation corridors.
The best reading of the relevant provisions of the IIJA is that transportation corridors that are supplied with clean hydrogen from hubs can receive funding appropriated through the hubs program1 for hydrogen distribution and delivery infrastructure, such as refueling stations.
Congress funded hydrogen and fuel cell programs in the Energy Policy Act of 2005, with the goals of “build[ing] a mature hydrogen economy that creates fuel diversity in the massive transportation sector of the United States” and “eliminat[ing] most emissions from the transportation sector.”2 In 2021, the IIJA added to the Energy Policy Act by appropriating $8 billion toward the creation of at least four “regional clean hydrogen hubs.”3 Specifically, the IIJA directs DOE to select and fund hubs that, among other requirements, “demonstrate the production, processing, delivery, storage, and end-use of clean hydrogen” and can be “developed into a national clean hydrogen network to facilitate a clean hydrogen economy.” (CATF previously outlined the mutually beneficial relationship between hydrogen hubs and zero-emissions freight corridors here).
In funding the hubs, DOE “may make grants to each regional clean hydrogen hub selected . . . to accelerate commercialization of, and demonstrate the production, processing, delivery, storage, and end-use of, clean hydrogen.” In other words, DOE can fund all parts of the clean hydrogen value chain, including delivery of clean hydrogen to end-uses. And Congress specifically called out the transportation sector as a prioritized end-use for the hubs program.
The “regional clean hydrogen hubs” provision4 (Section 16161a) defines a regional clean hydrogen hub as “a network of clean hydrogen producers, potential clean hydrogen consumers, and connective infrastructure located in close proximity.” Therefore, a hydrogen hub is necessarily broad in scope; it encompasses everything from the production of hydrogen to its end use. And a hub includes “connective infrastructure” between producers and consumers, which is defined as “the equipment, systems, or facilities used to produce, distribute, deliver, or store hydrogen.”
Given that the transportation sector requires more widely distributed infrastructure than other prioritized end-uses for the hubs, DOE may support distribution and delivery of clean hydrogen to transportation end-uses that are more spread out than other end-uses. While some modes of transportation (for example, fuel cell-powered forklifts used at a port) can operate and be fueled in a more concentrated location, the IIJA sets out a more expansive understanding of what is covered under a hydrogen hub.5 The hubs program must support the development of hubs that “can be developed into a national clean hydrogen network to facilitate a clean hydrogen economy.” This language contemplates more widespread use of hydrogen in the transportation sector, which will require correspondingly widespread refueling infrastructure. As a result, hub funding can and should include funding to distribute hydrogen along major highways and transportation corridors where hydrogen refueling stations will be the “clean hydrogen consumers” of the hydrogen produced at the hub.6
Other provisions of the IIJA support this reading.7 Section 16161b directs DOE to, “in carrying out” the hubs program, create a clean hydrogen strategy and roadmap to “facilitate widescale production, processing, delivery, storage, and use of clean hydrogen.”8 This provision further provides that the strategy “shall” focus on “identifying the needs for and barriers and pathways to developing clean hydrogen hubs . . . that . . . include transportation corridors and modes of transportation.”9 Section 16161b thus clearly states that clean hydrogen hubs can and should include transportation corridors.
Granted, the definition of “regional clean hydrogen hub” uses the qualifier, “located in close proximity.” The question thus becomes, how “close” in geographic proximity does the clean hydrogen end user (say, a hydrogen refueling station) have to be to a clean hydrogen producer to qualify for hubs funding.
“Close proximity” is not defined in the statute and should therefore be interpreted based on its ordinary and common meaning and statutory context.10 The term “close proximity” is inherently context dependent;11 Mercury is located in “close proximity” to the sun compared to the other planets, but it is still millions of miles away. Thus, in interpreting “close proximity,” “both ‘the specific context’ in which [the relevant provision] appears ‘and the broader context of the statute as a whole’” shed light on its meaning.12 Indeed, “[a] statutory provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme…because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.”13
Applying these principles and examining the broader statutory context and goals of the hubs provision, “close proximity” as used in the hubs provision should encompass infrastructure on transportation corridors that consume clean hydrogen produced at a hub. Congress funded the hubs program to “facilitate widescale production, processing, delivery, storage, and use of clean hydrogen”14 and directed DOE to select hubs that “can be developed into a national clean hydrogen network to facilitate a clean hydrogen economy.”15 Indeed, in another provision of the IIJA, Congress described hydrogen hubs as “includ[ing] transportation corridors.”16 “Close proximity” should therefore be interpreted as a proxy for the potential of infrastructure to facilitate distribution and delivery of clean hydrogen to consumers, including those in the transportation sector.17 This is the only interpretation that “produces a substantive effect that is compatible with the rest of the law,” as hydrogen hubs cannot effectively advance the use of clean hydrogen in the transportation sector unless the hubs deliver hydrogen to major transportation corridors.18
1 42 U.S.C. § 161616a(d).
2 Energy Policy Act of 2005, Pub. L. No. 109-58, § 802, 119 Stat. 594 (codified at 42 U.S.C. § 16151).
3 Energy Policy Act of 2005, Pub. L. No. 109-58, § 802, 119 Stat. 594 (codified at 42 U.S.C. § 16151).
4 42 U.S.C. § 16161a.
5 Section 16154, the “clean hydrogen research and development program,” confirms this reading. The IIJA amended this preexisting program by directing DOE to, among other things, “conduct activities to advance and support . . . the use of clean hydrogen in the transportation sector, including in light-, medium-, and heavy-duty vehicles, rail transport, aviation, and maritime applications.” Id. § 16154(e)(11). This update affirms that when Congress refers to the “transportation sector” in the context of clean hydrogen, it intended to cover the full transportation sector (i.e., more spread out transportation end-uses), not just short-haul applications.
6 This may include pipelines to deliver the hydrogen, as well as equipment or facilities such as hydrogen refueling stations that are required to “distribute” and “deliver” hydrogen to hydrogen powered vehicles.
7 See Fischer v. United States, 144 S. Ct. 2176, 2183 (2024) (in interpreting a statutory provision, “both ‘the specific context’ in which [the relevant provision] appears ‘and the broader context of the statute as a whole’” shed light on its meaning.)
8 42 U.S.C. § 16161b(a)(1) (emphasis added).
9 Id. § 16161b(a)(2)(F)(iii) (emphasis added).
10 Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014) (cleaned up) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)); see also Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018) (“words generally should be interpreted as taking their ordinary, contemporary, common meaning at the time Congress enacted the statute”) (cleaned up) (quoting Perrin, 444 U.S., at 42).
11 See Armament Sys. & Procedures v. Iq H.K., 2005 U.S. Dist. LEXIS 62468, *24 (E.D. Wisc. Jan. 5, 2005) (“The meaning of ‘in close proximity’ depends upon what one is talking about. For example, people can live in close proximity to one another without their houses being adjacent or next to each other.”).
12 Fischer, 144 S. Ct. at 2183. See also Keen v. Helson, 930 F.3d 799, 803, (6th Cir. 2019) (cleaned up) (“Another tool of interpretation is the context provided by the rest of the statute. Statutory interpretation is a holistic endeavor—the structure and wording of other parts of a statute can help clarify the meaning of an isolated term.”); Am. Growers Ins. Co. v. Fed. Crop Ins. Corp., 532 F.3d 797, 803 (8th Cir. 2008) (“The long established plain language rule of statutory interpretation requires “examining the text of the statute as a whole by considering its context, object, and policy.”); Catalyst Pharms., Inc. v. Becerra, 14 F.4th 1299, 1310 (11th Cir. 2021) (“reasonable statutory interpretation must account for both ‘the specific context in which . . . language is used and the broader context of the statute as a whole.”) (cleaned up).
13 Util. Air Regulatory Group v. EPA, 573 U.S. 302, 321 (2014).
14 42 U.S.C. § 16161b(a)(1) (emphasis added).
15 Id. § 16161a(b)(3).
16 Id. § 16161b(a)(2)(F)(iii).
17 See Gordillo, 920 F.3d at 1297.
18 See Sackett v. EPA, 598 U.S. 651, 676 (2023); see also Util. Air Regulatory Group, 573 U.S. at 321.
