ing the IRA, Democratic leaders agreed to advance comprehensive permitting reform legislation for major infrastructure projects before the end of the fiscal year. A summary of the permitting reform legislation provides that it would establish a list of 25 high-priority energy infrastructure projects that would have to be balanced among various types of energy, including hydrogen. The summary also calls for clarity concerning FERC’s jurisdiction over interstate hydrogen pipeline, storage, import and export facilities. Unlike the IRA, the permitting reform legislation will require 60 votes within the U.S. Senate to be approved.[15] For instance, PHMSA’s jurisdictional reach is limited to ensuring that minimum safety requirements are met for pipeline facilities and the transportation of gas, including flammable gas such as hydrogen. See 49 C.F.R. Part 192 (2022).[16] The Natural Gas Act defines natural gas as “either natural gas unmixed, or any mixture of natural gas and artificial gas.” 15 U.S.C. § 717A(5) (2018). Others argue that FERC could regulate hydrogen pipeline facilities — carrying and transporting a fuel product — under the Interstate Commerce Act, or that the Surface Transportation Board could do so under the Interstate Commerce Commission Termination Act.[17] Similar considerations include hydrogen’s volume requirements, transportation speed, heat content and potential impacts on existing generator facilities, along with the underlying warranties from original equipment manufacturers.[18] While various state agencies must do the same, some already have a regulatory structure in place. For instance, hydrogen is specifically regulated as a common carrier under the Texas Natural Resource Code. Tex. Nat. Res. Code Ann. § 111.002(6) (2022).Published in Law360 on September 14, 2022. © Copyright 2022, Portfolio Media, Inc., publisher of Law360. Reprinted here with permission.

Currently, the Natural Gas Act does not specifically address FERC’s jurisdiction over hydrogen pipelines and storage facilities. The Energy Independence and Security Act amends the definition of “natural gas” as set forth in Section 2 of the Natural Gas Act (15 U.S.C. §717a) to mean “(A) natural gas unmixed; (B) any mixture of natural and artificial gas; or (C) hydrogen mixed or unmixed with natural gas.” The Energy Independence and Security Act serves as a step toward addressing the regulatory uncertainty that currently exists with respect to the federal agency (or agencies) that can exercise jurisdiction over hydrogen infrastructure.