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Few aspects of Biden’s climate law have spurred more controversy than the “three pillars” — a set of rules proposed by the Treasury Department for how to claim a lucrative new tax credit for producing clean hydrogen. Now, it appears, the pillars may be poised to fall.
The Treasury has been under immense pressure from Congress, energy companies, and even leaders at the Department of Energy to relax the rules since before it even published the proposal in December. The pillars, criteria designed to prevent the program from subsidizing projects that increase U.S. greenhouse gas emissions rather than reduce them, are too expensive and complicated to comply with, detractors argue, and would sink the prospects for a domestic clean hydrogen industry.
But lately, the campaign to dismantle the pillars has gotten both more forceful and more threatening. There’s the politically challenging hurdle that leaders of another federally-funded hydrogen program — the regional clean hydrogen hubs — have spoken out against the rules, arguing they threaten investment in hub projects and therefore job creation and economic development around the country. Then there’s the recent Supreme Court decision to overturn the precedent known as Chevron deference, which weakened agencies’ ability to defend their own rules and thereby emboldens any aggrieved parties to sue the Treasury if it keeps the pillars in place. Last week, 13 Democratic Senators, 11 of whom hail from states involved in the hubs, sent a letter calling on Treasury Secretary Janet Yellen to dramatically revise the rules or risk having them challenged in court.
The consequences of losing the three pillars can only be guessed at using models, which are built on assumptions and can’t predict the future with certainty. But proponents say the stakes couldn’t be higher. In their view, the pillars don’t just prevent carbon emissions. They mitigate the risks of rising electricity costs for everyday Americans. And without them, one of the most generous energy credits the government offers could become incredibly easy to claim, ballooning the federal budget.
The clean hydrogen tax credit was created by the Inflation Reduction Act, and offers up to $3 per kilogram of hydrogen produced, with the top dollar amount reserved for fuel that is essentially zero-emissions. The hope was that this would be enough to bring down the cost of hydrogen made from electricity to parity with hydrogen made from natural gas. If made cleanly, hydrogen could help decarbonize other carbon-intensive industries, like steelmaking and shipping.
At first, excitement for the tax credit ran high and companies quickly began making plans for new factories. Announcements of new hydrogen production capacity more than tripled from 2 million tons per year in 2021 to 7.7 million by the end of the following year, with another 6 million announced in 2023, according to the energy consulting firm Wood Mackenzie.
Then, after the Treasury’s proposal dropped last December, everything stopped. Under the three pillars, hydrogen companies that get electricity from the grid, which is still largely powered by fossil fuels, would be required to buy clean energy credits with specific attributes in order to mitigate their emissions and render their hydrogen “clean.” The credits must come from power plants located in the same region as the hydrogen production — the first pillar — that were built no more than 3 years before the hydrogen plant — the second pillar — and be purchased for every hour the plant is operating — the third pillar.
The three provisions work together to ensure that new clean power plants are brought online to meet hydrogen’s energy demand. But finding clean energy credits with these features is not easy — there aren’t many systems in place to do this yet. The Treasury took more than a year to publish its initial proposal, and leading up to it, companies lobbied aggressively for a more lenient version. There was so much money on the line that some businesses flooded the public with ads in newspapers and on streaming and podcast services delivering a cryptic warning that “additionality” — the requirement to buy energy from new power plants — was threatening to “set America back.”
Until businesses have clarity on whether the three pillars will stay or go, the industry is on ice. Several previously announced projects have been delayed. Few companies have reached offtake agreements, even provisional ones, for their hydrogen. Almost none have received a final investment decision or started construction.
“They’re losing advantage over other parts of the world,” Hector Arreola, a principal analyst for hydrogen and emerging technologies at Wood Mackenzie, told me. Momentum to develop hydrogen projects has started to shift back to Europe, which has already finalized its own definition of what constitutes clean hydrogen, he said.
It’s hard to imagine a path forward for the Treasury to keep the three pillars intact. Last week’s letter outlined the current state of play in stark terms. “Without significant changes to the draft guidance,” it said, “one of the most powerful job creation and emission reduction tools in the IRA will likely be hamstrung by future court challenges, congressional opposition, and unfulfilled private sector investment.”
Indeed, at least one company, Constellation Energy, has already suggested it would draw on the loss of Chevron deference to sue the agency if it didn’t remove the second pillar — the requirement to buy clean energy credits from recently-built power plants. (Constellation owns a fleet of nuclear power plants and is developing hydrogen projects powered by them.) In comments to the Treasury, Constellation wrote that the requirements for purchasing clean electricity “have no basis” in the law.
“People can always sue today to challenge regulations,” Keith Martin, a renewable energy tax lawyer at the firm Norton Rose Fulbright, told me. “It’s just that the odds of success have increased.” The Supreme Court’s ruling undermines regulatory agencies’ authority to interpret federal statute.
Another hydrogen company that has been fighting the three pillars, Plug Power, has already claimed victory: It put out a press release last month declaring that it anticipates receiving the tax credit, despite the fact that the rules are still not final and its projects would likely not qualify under Treasury’s proposal. The CEO, Andy Marsh, told a hydrogen trade publication that he’s “certain” the rules will be loosened. (Plug Power didn’t respond to a request for clarification by publish time.)
In their letter, the 13 Democratic senators propose that hydrogen producers should be able to purchase clean energy from existing power plants that are already supplying the grid if they are located in a state that has a clean energy standard, or as long as the power plant doesn’t reallocate more than 10% of its power to hydrogen production. They recommend losing the hourly matching requirement altogether and replacing it with annual or monthly matching, depending on when plants start construction. The senators also suggest allowing projects built in areas with “insufficient clean energy sources,” meaning places with suboptimal sun, wind, water, or geothermal energy, to source their power from farther outside the region.
Beth Deane, the chief legal officer for Electric Hydrogen, a company that has historically supported the three pillars, told me in an interview she thought these proposals represented a good compromise. “Bottom-line, the effectiveness of green hydrogen as a decarbonization tool is being artificially held back,” she said later in an email. “We need to give up perfection on both sides of the three-pillar debate and find the ‘good enough’ solution that lets early mover projects move forward with less stringent requirements.”
But other proponents told me the letter carves out so many loopholes that the pillars would remain in name only. Rachel Fakhry, the policy director for emerging technologies at the Natural Resources Defense Council, told me the letter was “outrageous” and “a giveaway buffet.” Daniel Esposito, a manager in the electricity program at the think tank Energy Innovation, told me he can’t imagine any scenario where these exceptions don’t result in an emissions boost rather than a reduction.
That’s because the electrolyzers used to produce clean hydrogen consume a lot of power and are expected to cause fossil fuel plants — which are more flexible than renewables — to run more often and stay open longer than they otherwise would. Without a requirement to buy power from new clean sources and a prescription to match operations with clean energy throughout the day, there will be no demand signals to bring (often more expensive) clean resources onto the grid that can, for example, produce power at night when solar panels aren’t generating. Power system models from Energy Innovation, Princeton University researchers, the Rhodium Group, and the Electric Power Research Institute have all found that there could be significant emissions consequences if the three pillars were relaxed in ways suggested in the letter.
“This effectively unlocks more than 10 million metric tons of dirty electrolytic hydrogen,” Esposito said, based on some back-of-the-envelope estimates. That would cost something like $30 billion per year. Put another way, he said, every $300 paid out by this program could subsidize one ton of CO2 emissions. Put a third way, he added, it could set the U.S. back two to three percentage points on its commitment under the Paris Agreement to reduce emissions 50% to 52% by 2030 — and we’re already off track.
The authors of the letter say they’re “confident” these fears are overblown. They cite a competing analysis published last year by the consulting firm Energy and Environmental Economics and paid for by the trade group the American Council on Renewable Energy, which found that requiring companies to match their operations with clean energy on an hourly basis, rather than an annual basis, does not ensure lower greenhouse gas emissions. They also cite research by an energy modeling group at Carnegie Mellon and North Carolina State University, which found that the difference in cumulative emissions between scenarios with less stringent requirements and the full three pillars comes out to less than 1% by 2039.
Paulina Jaramillo, a professor of engineering and public policy at Carnegie Mellon who worked on that research, told me the three pillars add a level of regulatory complexity to hydrogen production that is not worth the cost in terms of the emissions savings. In general, she said, she saw no need for the rules, and that the Treasury should subsidize electrolytic hydrogen regardless of where the electricity comes from. “We need to deploy this infrastructure,” Jaramillo told me. “We need to deploy it now so it’s available later.”
The other camp of researchers disputed Jaramillo’s group’s findings, chalking them up to a series of differences in assumptions and approach. They also call the industry’s bluff on the claim that the three pillars are too hard and expensive to comply with. Esposito pointed out that a small group of hydrogen companies has already told the Treasury that if the rules were finalized as-is, they planned to build enough capacity to produce more than 6 million tons of hydrogen per year.
Fakhry argued that we are already seeing the risks of losing the three pillars play out in real time as power-hungry industries like bitcoin mining and artificial intelligence grow. Bitcoin mines have driven up emissions and energy costs around the country. Utilities in Pennsylvania are sounding the alarm that an Amazon data center seeking to divert power from an existing nuclear power plant could shift up to $140 million in costs to other electricity customers. As I wrote in Heatmap last year, this debate is not just about hydrogen — think of all the other energy-intensive industries that will have to electrify before we can reach net zero.
Plenty of stakeholders still believe that the Treasury can find a middle ground by making the three pillars more flexible. The American Clean Power Association, which represents a wide range of energy companies, has proposed loosening the hourly matching aspect for projects that start construction before 2028. Fakhry acknowledged the need for flexibility, but her recommendations are much more narrow than the senators’. For example, she would allow hydrogen producers to buy power from existing nuclear plants, but only if they are at risk of retirement and the purchase would help keep them open. Esposito said Energy Innovation would support power procurement from existing clean resources that are curtailed, meaning they produce power that currently goes unutilized.
Both Fakry and Esposito also downplayed the threat of lawsuits, arguing that Treasury did exactly what it was instructed to do by the law. The IRA specifically says that hydrogen emissions should be calculated per a section of the Clean Air Act that says any accounting should include “significant indirect emissions.” Treasury has interpreted this to include the induced emissions caused by a hydrogen plant, and received letters of support from the Environmental Protection Agency and Department of Energy backing this interpretation.
However, as Martin, the tax lawyer, told me, by overturning Chevron deference, the Supreme Court has just given “677 federal district court judges greater latitude to substitute their own judgment for subject matter experts at the federal agencies.”
Asked for comment on the Senators’ letter, a Treasury spokesperson told me the agency is still considering the many thousands of comments the agency received on the proposed rules. “The Biden Administration is committed to ensuring that progress continues and that the IRA’s investments continue to create good-paying jobs, lower energy costs, and strengthen energy security.”
Even if Yellen heeds the Senators’ advice, the department may not be able to avoid a lawsuit. “We will use every tool available to us — including the courts — to either defend a strong final rule or challenge an unlawful one that reflects the asks in the letter,” Fakhry told me.
There’s also a realpolitik argument here that the industry might want this all to be over more than it wants to kill the three pillars. “The number one thing people want is business certainty,” Esposito told me. “I don’t think people want this to drag on for another two years.”
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Amarillo-area residents successfully beat back a $600 million project from Xcel Energy that would have provided useful tax revenue.
Power giant Xcel Energy just suffered a major public relations flap in the Texas Panhandle, scrubbing plans for a solar project amidst harsh backlash from local residents.
On Friday, Xcel Energy withdrew plans to build a $600 million solar project right outside of Rolling Hills, a small, relatively isolated residential neighborhood just north of the city of Amarillo, Texas. The project was part of several solar farms it had proposed to the Texas Public Utilities Commission to meet the load growth created by the state’s AI data center boom. As we’ve covered in The Fight, Texas should’ve been an easier place to do this, and there were few if any legal obstacles standing in the way of the project, dubbed Oneida 2. It was sited on private lands, and Texas counties lack the sort of authority to veto projects you’re used to seeing in, say, Ohio or California.
But a full-on revolt from homeowners and realtors apparently created a public relations crisis.
Mere weeks ago, shortly after word of the project made its way through the small community that is Rolling Hills, more than 60 complaints were filed to the Texas Public Utilities Commission in protest. When Xcel organized a public forum to try and educate the public about the project’s potential benefits, at least 150 residents turned out, overwhelmingly to oppose its construction. This led the Minnesota-based power company to say it would scrap the project entirely.
Xcel has tried to put a happy face on the situation. “We are grateful that so many people from the Rolling Hills neighborhood shared their concerns about this project because it gives us an opportunity to better serve our communities,” the company said in a statement to me. “Moving forward, we will ask for regulatory approval to build more generation sources to meet the needs of our growing economy, but we are taking the lessons from this project seriously.”
But what lessons, exactly, could Xcel have learned? What seems to have happened is that it simply tried to put a solar project in the wrong place, prizing convenience and proximity to an existing electrical grid over the risk of backlash in an area with a conservative, older population that is resistant to change.
Just ask John Coffee, one of the commissioners for Potter County, which includes Amarillo, Rolling Hills, and a lot of characteristically barren Texas landscape. As he told me over the phone this week, this solar farm would’ve been the first utility-scale project in the county. For years, he said, renewable energy developers have explored potentially building a project in the area. He’s entertained those conversations for two big reasons – the potential tax revenue benefits he’s seen elsewhere in Texas; and because ordinarily, a project like Oneida 2 would’ve been welcomed in any of the pockets of brush and plain where people don’t actually live.
“We’re struggling with tax rates and increases and stuff. In the proper location, it would be well-received,” he told me. “The issue is, it’s right next to a residential area.”
Indeed, Oneida 2 would’ve been smack dab up against Rolling Hills, occupying what project maps show would be the land surrounding the neighborhood’s southeast perimeter – truly the sort of encompassing adjacency that anti-solar advocates like to describe as a bogeyman.
Cotton also told me he wasn’t notified about the project’s existence until a few weeks ago, at the same time resident complaints began to reach a fever pitch. He recalled hearing from homeowners who were worried that they’d no longer be able to sell their properties. When I asked him if there was any data backing up the solar farm’s potential damage to home prices, he said he didn’t have hard numbers, but that the concerns he heard directly from the head of Amarillo’s Realtors Association should be evidence enough.
Many of the complaints against Oneida 2 were the sort of stuff we’re used to at The Fight, including fears of fires and stormwater runoff. But Cotton said it really boiled down to property values – and the likelihood that the solar farm would change the cultural fabric in Rolling Hills.
“This is a rural area. There are about 300 homes out there. Everybody sitting out there has half an acre, an acre, two acres, and they like to enjoy the quiet, look out their windows and doors, and see some distance,” he said.
Ironically, Cotton opposed the project on the urging of his constituents, but is now publicly asking Xcel to continue to develop solar in the county. “Hopefully they’ll look at other areas in Potter County,” he told me, adding that at least one resident has already come to him with potential properties the company could acquire. “We could really use the tax money from it. But you just can’t harm a community for tax dollars. That’s not what I’m about.”
I asked Xcel how all this happened and what their plans are next. A spokesperson repeatedly denied my requests to discuss Oneida 2 in any capacity. In a statement, the company told me it “will provide updates if the project is moved to another site,” and that “the company will continue to evaluate whether there is another location within Potter County, or elsewhere, to locate the solar project.”
Meanwhile, Amarillo may be about to welcome data center development because of course, and there’s speculation the first AI Stargate facility may be sited near Amarillo, as well.
City officials will decide in the coming weeks on whether to finalize a key water agreement with a 5,600-acre private “hypergrid” project from Fermi America, a new company cofounded by former Texas governor Rick Perry, says will provide upwards of 11 gigawatts to help fuel artificial intelligence services. Fermi claims that at least 1 gigawatt of power will be available by the end of next year – a lot of power.
The company promises that its “hypergrid” AI campus will use on-site gas and nuclear generation, as well as contracted gas and solar capacity. One thing’s for sure – it definitely won’t be benefiting from a large solar farm nearby anytime soon.
And more of the most important news about renewable projects fighting it out this week.
1. Racine County, Wisconsin – Microsoft is scrapping plans for a data center after fierce opposition from a host community in Wisconsin.
2. Rockingham County, Virginia – Another day, another chokepoint in Dominion Energy’s effort to build more solar energy to power surging load growth in the state, this time in the quaint town of Timberville.
3. Clark County, Ohio – This county is one step closer to its first utility-scale solar project, despite the local government restricting development of new projects.
4. Coles County, Illinois – Speaking of good news, this county reaffirmed the special use permit for Earthrise Energy’s Glacier Moraine solar project, rebuffing loud criticisms from surrounding households.
5. Lee County, Mississippi – It’s full steam ahead for the Jugfork solar project in Mississippi, a Competitive Power Ventures proposal that is expected to feed electricity to the Tennessee Valley Authority.
A conversation with Enchanted Rock’s Joel Yu.
This week’s chat was with Joel Yu, senior vice president for policy and external affairs at the data center micro-grid services company Enchanted Rock. Now, Enchanted Rock does work I usually don’t elevate in The Fight – gas-power tracking – but I wanted to talk to him about how conflicts over renewable energy are affecting his business, too. You see, when you talk to solar or wind developers about the potential downsides in this difficult economic environment, they’re willing to be candid … but only to a certain extent. As I expected, someone like Yu who is separated enough from the heartburn that is the Trump administration’s anti-renewables agenda was able to give me a sober truth: Land use and conflicts over siting are going to advantage fossil fuels in at least some cases.
The following conversation was lightly edited for clarity.
Help me understand where, from your perspective, the generation for new data centers is going to come from. I know there are gas turbine shortages, but also that solar and wind are dealing with headwinds in the United States given cuts to the Inflation Reduction Act.
There are a lot of stories out there about certain technologies coming out to the forefront to solve the problem, whether it’s gas generation or something else. But the scale and the scope of this stuff … I don’t think there is a silver bullet where it’s all going to come from one place.
The Energy Department put out a request for information looking for ways to get to 3 gigawatts quickly, but I don’t think there is any way to do that quickly in the United States. It’s going to take work from generation developers, batteries, thermal generation, emerging storage technologies, and transmission. Reality is, whether it is supply chain issues or technology readiness or the grid’s readiness to accept that load generation profile, none of it is ready. We need investment and innovation on all fronts.
How do conflicts over siting play into solving the data center power problem? Like, how much of the generation that we need for data center development is being held back by those fights?
I do have an intuitive sense that the local siting and permitting concerns around data centers are expanding in scope from the normal noise and water considerations to include impacts to energy affordability and reliability, as well as the selection of certain generation technologies. We’ve seen diesel generation, for example, come into the spotlight. It’s had to do with data center permitting in certain jurisdictions, in places like Maryland and Minnesota. Folks are realizing that a data center comes with a big power plant – their diesel generation. When other power sources fall short, they’ll rely on their diesel more frequently, so folks are raising red flags there. Then, with respect to gas turbines or large cycle units, there’s concerns about viewsheds, noise and cooling requirements, on top of water usage.
How many data center projects are getting their generation on-site versus through the grid today?
Very few are using on-site generation today. There’s a lot of talk about it and interest, but in order to serve our traditional cloud services data center or AI-type loads, they’re looking for really high availability rates. That’s really costly and really difficult to do if you’re off the grid and being serviced by on-site generation.
In the context of policy discussions, co-location has primarily meant baseload resources on sites that are serving the data centers 24/7 – the big stories behind Three Mile Island and the Susquehanna nuclear plant. But to be fair, most data centers operational today have on-site generation. That’s their diesel backup, what backstops the grid reliability.
I think where you’re seeing innovation is modular gas storage technologies and battery storage technologies that try to come in and take the space of the diesel generation that is the standard today, increasing the capability of data centers in terms of on-site power relative to status quo. Renewable power for data centers at scale – talking about hundreds of megawatts at a time – I think land is constraining.
If a data center is looking to scale up and play a balancing act of competing capacity versus land for energy production, the competing capacity is extremely valuable. They’re going to prioritize that first and pack as much as they can into whatever land they have to develop. Data centers trying to procure zero-carbon energy are primarily focused on getting that energy over wires. Grid connection, transmission service for large-scale renewables that can match the scale of natural gas, there’s still very strong demand to stay connected to the grid for reliability and sustainability.
Have you seen the state of conflict around renewable energy development impact data center development?
Not necessarily. There is an opportunity for data center development to coincide with renewable project development from a siting perspective, if they’re going to be co-located or near to each other in remote areas. For some of these multi-gigawatt data centers, the reason they’re out in the middle of nowhere is a combination of favorable permitting and siting conditions for thousands of acres of data center building, substations and transmission –
Sorry, but even for projects not siting generation, if megawatts – if not gigawatts – are held up from coming to the grid over local conflicts, do you think that’s going to impact data center development at all? The affordability conversions? The environmental ones?
Oh yeah, I think so. In the big picture, the concern is if you can integrate large loads reliably and affordably. Governors, state lawmakers are thinking about this, and it’s bubbling up to the federal level. You need a broad set of resources on the grid to provide that adequacy. To the extent you hold up any grid resources, renewable or otherwise, you’re going to be staring down some serious challenges in serving the load. Virginia’s a good example, where local groups have held up large-scale renewable projects in the state, and Dominion’s trying to build a gas peaker plant that’s being debated, too. But in the meantime, it is Data Center Alley, and there are gigawatts of data centers that continue to want to get in and get online as quickly as possible. But the resources to serve that load are not coming online in time.
The push toward co-location probably does favor thermal generation and battery storage technologies over straight renewable energy resources. But a battery can’t cover 24/7 use cases for a data center, and neither will our unit. We’re positioned to be a bridge resource for 24/7 use for a few years until they can get more power to the market, and then we can be a flexible backup resource – not a replacement for the large-scale and transmission-connected baseload power resources, like solar and wind. Texas has benefited from huge deployments of solar and wind. That has trickled down to lower electricity costs. Those resources can’t do it alone, and there’s thermal to balance the system, but you need it all to meet the load growth.