The Federal Hydrogen Hub Community Guide
Tools for Communities
How communities can gain information about and influence over Hydrogen Hub projects
This resource is part of the Federal Hydrogen Hub Community Guide.
Communities have many potential ways to influence Hydrogen Hub projects.
To win federal funding, Hubs are required to minimize negative impacts, maximize benefits, and meaningfully engage communities.
Individual communities may benefit from working with other communities within the Hub to push for greater benefits and stronger protections Hub-wide. In general, efforts to stop a project can be hard to win and often require a significant investment of time and resources.
Communities will likely need a combination of tools and strategies to achieve their goals for a Hydrogen Hub project, whether it is to secure more benefits and limit harm, or to prevent or relocate a project altogether.
When confronted with a proposed Hydrogen Hub project, an important first step is to understand the details of the project and how it might benefit and / or harm your community.
1. What is the project?
- Because Hydrogen Hub projects will vary significantly, it is important to understand the project proposed for your community.
- Benefits and harms depend on the project type and specific project details.
2. Could the project harm my community and what measures could be taken to prevent or minimize those harms?
- Many proposed Hub projects would produce more local air pollution or create other negative impacts.
- Hubs are supposed to identify and avoid or reduce these possible harms.
3. How could the project benefit my community?
- Hub projects are supposed to provide benefits, such as more jobs and less pollution, and developers are supposed to ensure those benefits flow to communities that would be impacted by the project, especially disadvantaged communities.
Each of the following tools can help you understand the proposed project and effectively advocate to minimize harms and maximize benefits.
DOE’s Guidance on Hubs’ Community Benefits Plans
The Dept. of Energy’s Guidance on Hubs’ Community Benefits Plans describes DOE expectations for Hubs and is a useful tool for communities.
Each Hub is required to have its own Community Benefits Plan that discusses how it will:
- Engage impacted communities;
- Minimize negative impacts to those communities; and
- Ensure benefits flow to those communities.
DOE’s Guidance sets strong expectations for Hubs for each of these topics. The Guidance builds on expectations DOE described in its Funding Opportunity Announcement for the Hub program, which describes requirements for Hub applicants. Hubs will need to demonstrate in their Community Benefits Plans how they intend to meet DOE’s expectations.
DOE expects Hubs’ Community Benefits Plans to include clear commitments. According to DOE, Hubs will release a summary of those commitments during Phase 1 of the Hub Program.
- Summaries that have been released thus far are very high level and communities might want to push to ensure that clear, detailed, and strong commitments are included in their Hub’s Community Benefits Plan.
- Community Benefits summaries for each of the three Hubs that have concluded negotiations can be found on the DOE webpages for those Hubs (ARCH2, ARCHES, PNWH2).
DOE’s Guidance is a good foundation for communities.
It identifies standards and expectations that communities can use to support their demands. (See DOE’s Guidance.)
Many of these standards and expectations are specific to Hub-funded projects and do not exist in permit requirements and other approvals.
Engagement and organizing around Hub projects will also be critical to ensure that Hubs do more than the bare minimum when it comes to engaging communities, maximizing benefits, and minimizing harms.
Note that it is currently unclear whether projects that are related to the Hub (for example, projects that use hydrogen produced by a Hub, but do not directly receive federal funding) will be required to comply with DOE’s Community Benefits Plan expectations. We will include more specific information on which Hub-related projects are subject to DOE requirements as it becomes available.
It may be valuable to establish a point of contact with DOE’s stakeholder engagement team for the Hydrogen Hub Program.
DOE has repeatedly said that it wants to hear from communities about the Hub program, including whether Hubs are complying with their Community Benefits Plans and DOE’s expectations.
Impacted community members will be best positioned to raise concerns with DOE and to alert DOE where Hub actions do not live up to promises and requirements.
DOE encourages stakeholders to email: engage_H2Hubs@hq.doe.gov. Contacting individual DOE staff members involved in a particular Hub can also be an effective way to engage with DOE.
Key points from DOE’s Guidance that communities can use to gain information on and influence over Hub projects are highlighted below.
Community Engagement
DOE expects Hubs to engage communities early, often, and throughout the entire Hub Program in meaningful and accessible ways.
DOE’s expectations for community engagement include:
- Hubs will engage the people most impacted by Hub projects, focusing on any underserved, overburdened, or disadvantaged communities.
- Engagement will be more than a box-checking exercise. Hubs will build partnership with and accountability to communities.
- Engagement will not unduly burden community members.
- Hubs will respond to and base decisions upon community concerns.
- Hubs will clearly communicate when and how community input can shape project development. This includes being clear about whether Hubs would consider changing the site of proposed projects based on community feedback.
- Hubs will give communities data and studies on the impacts of Hub projects.
- Where Hub activities are expected to have significant impacts on a tribal community, the Hub will develop a Tribal engagement plan with DOE.
See DOE’s Guidance at pages 2-19 for more information on community engagement expectations.
Negative Impacts
DOE expects Hubs to identify and minimize their negative impacts on communities, and work with impacted communities early and often to determine which negative impacts are of most concern.
DOE’s Guidance makes clear that Hubs are supposed to consider and mitigate a broad range of possible impacts, including impacts on:
- Health (e.g. increased asthma rates)
- Economics (e.g. higher property taxes)
- Ecology (e.g. migratory birds change their flight path because of a Hub project)
- Aesthetics (e.g. a new smokestack towers over a popular park)
- Culture (e.g. a fishing community is forced to stop fishing because of increased water pollution)
These impacts could be direct, indirect, or cumulative.
Direct or Indirect Impacts
Fossil fuel plants operate more to make up for clean energy lost to hydrogen production.
Construction of a hydrogen production facility destroys a wetland or public park.
A neighborhood has more truck traffic because of a new hydrogen fueling station.
Climate change worsens because of CO2 and methane emissions from hydrogen production involving fossil fuels.
Cumulative Impacts
Asthma rates rise because a power plant emits more NOx from burning hydrogen, which increases smog and worsens air quality in a community that already has multiple polluting plants.
Local water sources become stressed because Hub development draws on already-strained water supplies in a drought-prone community.
When assessing potential negative impacts from a project, DOE specifies that Hubs should consider, among other things, whether the project will:
- Rely on limited resources like freshwater, land, and critical minerals
- Create environmental pollution
- Increase energy prices
- Impact land use (e.g. increase reliance on cars)
- Impact home values or cause/worsen gentrification
- Be located on or adjacent to Tribal lands, lands considered to be sacred, or lands used for traditional purposes
- Create negative impacts that compound or add to burdens that already exist in the impacted community
Negative impacts should be quantified, measured, and tracked. DOE expects Hubs to specify how negative impacts will be measured, estimated, or modeled, and to have a plan for comparing their measurements to experiences on the ground to ensure that they are accurate. DOE also expects Hubs to provide opportunities for communities to participate in the development of methods to measure, estimate, and/or model impacts.
Finally, Hubs should explain how they will move from the goal of minimizing negative impacts to outcomes that are specific, measurable, and that indicate whether the goal has been met. This section of Hub plans should include timelines and milestones.
See DOE’s Guidance at pages 45-51 for more information on negative impacts.
Benefits
DOE expects Hubs to consider and maximize a broad range of potential benefits from their projects, including:
Increased energy resiliency, including benefits that allow communities to avoid and recover from power outages
Workforce benefits, including temporary and permanent jobs, increased job training, and partnerships with underrepresented businesses
More contracts for minority-owned businesses and businesses in disadvantaged communities
Increased access to clean energy technology and low-cost capital
Reduced environmental burdens
Lower energy bills
Note: DOE also identified increased energy democracy as a potential benefit of the Hubs, but it is not clear what this would look like in the Hub context. This typically refers to a shift from a centralized fossil fuel economy to one governed by communities.
DOE expects Hubs to provide 40% of their overall benefits to “disadvantaged communities.”
Identifying disadvantaged communities: What counts as a disadvantaged community will likely be determined by either of two online tools:
- DOE’s own tool (Energy Justice Mapping Tool)
- The White House Council of Environmental Quality’s Climate & Economic Justice Screening tool
Some states also have their own tools for identifying disadvantaged communities, and DOE might allow Hubs to use those tools if they meet certain criteria. DOE categorizes all federally recognized Tribal land and U.S. territories as “disadvantaged communities.”
The 40% requirement
Whether Hubs meet DOE’s expectation that 40% of benefits flow to disadvantaged communities will be based on the overall performance of a Hub, meaning individual Hub projects could provide greater or fewer benefits to disadvantaged communities as long as the Hub as a whole meets this standard.
See DOE’s Guidance at pages 41-45 for more information on benefits.
Accountability & Enforceability
Clear | Verifiable | Legally Enforceable
DOE expects Hub commitments to be clear, verifiable, and legally enforceable.
Clear Commitments
Hubs’ commitments to communities should be clear. Under DOE’s Guidance, Hubs’ Community Benefits Plans should:
- Define concrete actions the Hub will take to maximize benefits and minimize negative impacts.
- Provide clear information about what benefits will be provided and when, and report progress along the way.
- Describe the roles and responsibilities of the various companies that make up a Hub in providing benefits and minimizing harms — who on the Hub team will take which actions and when?
Verifiable Commitments
Hubs must provide DOE and communities with the information needed to verify whether they are meeting their commitments. According to DOE:
- Hubs’ Community Benefits Plans should include clear metrics to measure success.
- Good plans will include “very specific benefits and negative impacts — and display an understanding of how these impacts unfold over time — and propose methods for measurement, tracking, and reporting of those impacts, as well as opportunities for communities to engage in defining and monitoring these impacts.” They will also provide a clear assessment of where impacts flow, including the degree to which they flow to disadvantaged communities.
- Plans will not be adequate if they include only “broad statements of intent to provide benefits, without credible implementation plans to measure, track, report, and adjust the project to ensure the delivery of benefits.”
DOE will verify the status and effectiveness of Hubs’ Plans when deciding whether to continue funding through each of the Program’s four funding phases. DOE has stated that it is also responsible for the success of the Hubs and expects each Hub to commit to more benefits and stronger protections than are required by permits alone. DOE and the Hubs will also re-negotiate Community Benefits Plans “before the start of each phase,” as shown in this graphic:
Community Benefit Plans Implementation: Requirements per Phase
Go/No Go decisions occur at the beginning of each Phase. DOE commits funding one phase at a time. Before moving on to the next phase, DOE can end funding or set conditions on future funding—including CBP requirements for the upcoming phase.
DOE is the go/no go decision-maker. Community stakeholders can influence this decision through pressure and by ensuring DOE is aware of any ways in which a hub may not be meeting expectations.
Application
CBPs are evaluated by experts according to the FOA criteria and typically scored at 20% of the total score.†
Selected projects move to Negotiation
Negotiation
Selectees enter a negotiation phase that includes improvements to CBP required for award
Hubs finish negotiations and DOE funding begins
Phase 1:
Detailed Plan
1¼ years*
Phase 2:
Project Development
2½ years*
Phase 3:
Implement & Construct
3½ years*
Phase 4:
Ramp-Up & Operate
3 years*
† CBPs are considered alongside assessments of engineering, procurement, and construction; business development and management; permitting and safety; and technical data and analysis.
* Approximate time to complete phase
Although DOE expects Hubs to verify compliance with their Community Benefits Plans and commitments to communities, DOE has not specified methods that Hubs must use to do so. If each Hub is left to create and use its own methods to measure, track, and report negative impacts and benefits, there is a risk that Hubs will overstate benefits, understate negative impacts, and otherwise seek to avoid accountability, especially in disadvantaged communities.
Communities may wish to urge DOE to specify methods that Hubs should use to measure, track, and report negative impacts and benefits. Communities should also take the opportunity to be involved in the process of developing those methods. It will be beneficial to bring community-trusted technical experts into the process. According to DOE’s Guidance, communities should have the opportunity to participate in measuring, estimating, and modeling Hub impacts.
Legally Enforceable Commitments
A Hub’s commitment is legally enforceable when a community, DOE, or another oversight authority can take legal action to remedy a Hub’s failure to comply with that commitment.
Legally enforceable commitments can take different forms. For example, an air permit that limits the amount of pollution from a Hydrogen Hub facility is legally enforceable — if a facility fails to comply with that pollution limit, certain agencies and communities can sue to force compliance and the agency may also be able to impose penalties. Here, DOE can also ensure compliance by conditioning future funding on compliance.
Commitments in a contract are also legally enforceable. DOE encourages Hub project developers to enter contracts with communities for this reason. These types of agreements are often called Community Benefits Agreements but could have different names (e.g. Good Neighbor Agreements, Community Workforce Agreements). DOE encourages Hubs to:
- Negotiate these agreements with an “inclusive, representative, and accountable coalition of community and labor partners.”
- Include in these agreements “clear metrics, timelines, transparency, and reporting processes.”
- Assign roles and responsibilities in these agreements “to determine compliance and outline processes to address non-compliance.”
A Community Benefits Agreement is an agreement signed by community groups or coalitions and a project developer that identifies the benefits that a developer agrees to provide to a community in return for that community’s support for the project.
Benefits could include a living wage requirement for workers; pollution reduction commitments; construction of parks and recreational facilities; or environmentally-beneficial projects, among other measures.
A Community Benefits Agreement can be a strong tool for gaining firm commitments from developers, regular reports and data on the developer’s compliance with those commitments, and enforcement options where a developer fails to live up to its commitments. That said, the strength and effectiveness of existing Community Benefits Agreements varies significantly and there are many examples of agreements that look like they include community support and developer accountability but in reality are weak on community engagement, commitments, and enforcement opportunities.
The strength of a Community Benefits Agreement is largely driven by a community’s leverage and the degree to which a developer thinks it needs to negotiate a strong agreement for its development to move forward. Legal assistance in developing such an agreement is important to ensure that commitments are clear, measurable, and transparent; and to ensure that the agreement meets legal standards to be binding and enforceable.
Resources
- For a comprehensive discussion of these issues, see Community Benefits Agreements: Making Development Projects Accountable (2005).
- DOE also has a Community Benefit Agreement Toolkit that includes a 101 webinar and other resources.
Federal, State, and Local Permits and Approvals
Hub projects may require federal, state, and/or local permits and approvals. Each of these permits and approvals could have its own:
- Public comment period
- Legal requirements
- Decision-makers
- Appeal process
If projects seek financing, like loans, or subsidies, like tax credits, from states or localities, these may also have approval processes that provide advocacy opportunities. Where it is optional for a government entity to provide financing or subsidies, that entity also often has the ability to set conditions such as local hiring or impact reduction.
The permitting requirements discussed in this section are the minimum standards that Hub projects must meet.
DOE can require projects to meet more protective environmental standards in exchange for federal funding through the Hub program, including the standards set forth in DOE’s Community Benefits Plan Guidance.
Air Permits
Hydrogen Hub facilities that emit certain types and amounts of air pollution will need air permits under the federal Clean Air Act before construction and operation. Although the Clean Air Act is a federal law, it is often implemented by individual states.
The air permitting process can provide multiple advocacy opportunities.
- Communities can often participate in the process before permits are issued. This will depend in part on whether the Hydrogen Hub facility is permitted as a “major” or “minor” source of air pollution (more on this below).
- In addition, communities may be able to challenge permits after they are issued.
- The permitting process can at times prevent a harmful project from moving forward or require a facility to minimize its impacts. For example, the process could force a facility to adopt better technologies for controlling pollution and reducing harmful impacts to air quality and public health.
- The process can also require a facility to better model, monitor, and report potential and actual impacts.
- Finally, the process can be a vehicle for bringing public and media attention to community concerns, including through public hearings on permits.
The air permitting process has limits.
- The agency issuing air permits cannot deny a permit based on community opposition alone and must issue a permit once the project developer shows its facility will comply with all state and federal requirements (which depend on the type of air permit that is required). An applicant can usually meet that standard and get an air permit, even if it takes multiple tries.
- Likewise, in a lawsuit challenging an air permit, the judge cannot decide that an applicant should never get a permit; the best outcome is typically for a judge to decide that the permit is too weak and must be strengthened (for example, by requiring stronger pollution controls or better monitoring).
- Air permitting can also work in tandem with state environmental review processes, which in some instances impose additional requirements on the developer.
Types of air permits:
- Generally, a facility requires two types of permits:
- A permit to construct a new facility or modify an existing one (sometimes called a New Source Review or NSR permit). This type of permit is required before a developer begins constructing or modifying its facility.
- A permit to operate the facility (often called a Title V permit, which refers to Title V of the Clean Air Act). In general, this type of permit is not required until after a facility has started operating (though it is not unusual to obtain both types of permits at the same time, before beginning construction).
- The type of air permits a facility needs depends on several factors, like:
- Whether the facility already exists and will be modified for a hydrogen project, or whether it will be newly built.
- How much pollution the facility has the potential to emit — in other words, whether the facility will be a “major” or a “minor” source of air pollution. In general, “major” sources are subject to much stronger requirements and must provide greater opportunities for public participation than “minor” sources.
- Whether the facility will be sited in an area that is in compliance with National Ambient Air Quality Standards (NAAQS). Areas that are not in compliance with the NAAQS are called “non-attainment” areas, and facilities in those areas are subject to stricter permit requirements.
- Together, these permits specify:
- pollution limits and the technologies the facility must use to control pollution;
- methods the facility must use to monitor and report on its pollution; and
- the frequency of that monitoring and reporting, among other things.
- Sometimes these two permits are combined in one document.
Resource
For a more comprehensive discussion of the differences between types of air permits their requirements, and their public participation opportunities:
- Chapter 3, “Clean Air Act,” in the Advocates’ Guide to Effective Participation in Environmental Permit Proceedings for New Petrochemical Facilities (August 2023)
Air permitting authority: Most often, air permits will be issued by state environmental agencies. In some states, air permitting is the shared responsibility of state agencies and U.S. EPA:
Air permitting process & public participation:
- The permitting process starts when a facility submits an air permit application.
- Typically, the permitting authority will then publish a draft permit and provide a period for public comment on it.
- This period must include a public hearing whenever there is a “significant degree of public interest” in the draft permit; otherwise, it is up to the permitting authority to decide whether to hold a public hearing.
- Following the comment period, the agency will decide whether to issue the permit.
- Most permit applications are approved.
- Even if the agency denies an application, the project developer will be able to submit a revised application that addresses the reasons that the first application was denied.
- Still, public comments can help secure stronger pollution limits and pollution controls that better protect communities from air pollution.
- Public comments can also help build a record of problems with the permit that can be appealed to a court.
Appealing air permits:
- If the agency issues a permit, that permit can be appealed.
- Appeals typically go to a state agency.
- To appeal, you have to show that the permit causes you a legal injury — for example, the permit authorizes pollution that exacerbates your asthma or prevents you from visiting one of your favorite parks.
- In most states, organizations can appeal permits on behalf of their injured members.
- Appealing an air permit is often a resource-intensive process that requires legal representation and experts.
- It can take many years to resolve and can be difficult to win.
- Even if you win, the project can reapply for a permit. For that reason, it is often important to pair air permit advocacy with other strategies.
Petitions to U.S. EPA:
- The public can also petition U.S. EPA to “object” to a Title V operating permit.
- A petition to EPA to object to a Title V operating permit must be filed within 60 days after EPA concludes its own review of the permit.
- If EPA grants your petition and objects to the permit, the state agency that issued the permit must fix the problems with the permit.
- Unfortunately, U.S. EPA considers a narrow scope of issues when deciding whether to object.
- Except in limited circumstances, a Title V petition can only raise issues that were also raised with the state agency during the public comment period.
- In addition, U.S. EPA has recently declined to consider construction requirements, which include issues like how much pollution a facility can emit and what technologies a facility must use to control its pollution.
- Therefore, a Title V petition is most likely to succeed if it raises issues about operating requirements, like problems with how a facility monitors and reports its pollution, or if it identifies requirements in a facility’s construction / modification permit that are misstated or omitted from the Title V permit — so long as those issues were also raised during the public comment period.
- Title V petitions are a useful tool because they can push federal regulators to fix permitting errors made by state agencies and can help alert federal policymakers to a community’s concerns about or opposition to a proposed project. However, like air permit appeals, these proceedings can take many years to resolve.
Resources
To learn more about the Clean Air Act permitting process and how communities can influence it:
- Chapter Three: Clean Air Act of the Advocates’ Guide to Effective Participation in Environmental Permit Proceedings for New Petrochemical Facilities (August 2023)
- The Proof is in the Permit: How to Make Sure a Facility in Your Community Gets an Effective Title V Air Pollution Permit (June 2000)
- U.S. EPA website on Title V petitions
NEPA Reviews
Many Hub projects could be subject to environmental review under the federal National Environmental Policy Act (NEPA) and/or a similar state law.
NEPA’s purpose:
- NEPA requires federal agencies to evaluate and report on the possible environmental impacts of major federal actions before those actions are taken.
- Some Hydrogen Hub actions will need to do this evaluation. For example, DOE will need to do a NEPA review before it awards funds to the Hubs, and other federal agencies may need to comply with NEPA before issuing permits to Hub projects.
- NEPA review is an important tool to:
- ensure agencies evaluate the environmental consequences of their decisions;
- are transparent about those consequences; and
- consider alternatives that could minimize negative consequences.
- It is also:
- an important source of information about a project, its possible impacts, and the permit approvals it will need; and
- provides organizing opportunities, including at public hearings.
- NEPA is supposed to encourage informed agency decision-making, but it does not require agencies to make the best decision for the environment or communities.
NEPA process:
- For actions subject to NEPA, the agency must determine whether the environmental effects of that action are likely to be “significant.”
- This can be determined through an Environmental Assessment (EA) or an agency can decide that significant impacts are likely without preparing an EA.
- If the agency determines that a project could have significant environmental impacts, it then prepares an Environmental Impact Statement (EIS), which is a much more extensive evaluation of impacts.
- While DOE has said that the Hydrogen Hub Program is subject to NEPA review, it is not yet clear when and how this review will be carried out (for example, at the program-wide level, at the individual Hub level, or for each project in a Hub that could receive federal funding or permits). This area of the Guide will be updated as more information becomes available.
Public participation: NEPA provides opportunities for communities to influence agency decision-making. The public will have the opportunity to review and comment on an EIS and may have the opportunity to do so with an EA.
State NEPAs: Several states, including some involved in the Hubs, have laws similar to NEPA. In those states, Hub-related decisions at the state and local levels may be subject to environmental review under state law, and some state NEPAs require that projects not only describe, but also address, environmental impacts.
Resources
To learn more about NEPA reviews, see:
- White House Council on Environmental Quality, A Citizens’ Guide to NEPA
- Chapter Six: National Environmental Policy Act of the Advocates’ Guide to Effective Participation in Environmental Permit Proceedings for New Petrochemical Facilities (August 2023)
Class VI Permits for Injection Wells
Hydrogen Hub projects that involve injecting CO2 into wells for underground storage will need a Class VI permit before they can build or use those wells.
Class VI permits are issued under the Safe Drinking Water Act and are intended to protect our drinking water supply from pollution, including CO2.
Class VI permits set requirements for:
- Siting, constructing, and operating CO2 injection wells;
- Testing, monitoring, and reporting (including after CO2 injection stops);
- Developing an emergency plan; and
- Maintaining financial responsibility for the CO2 storage site, including covering the costs of any emergency and of any site clean-up needed after CO2 injection stops.
Permitting authority:
- Currently, U.S. EPA oversees the Class VI permitting process for all states except Louisiana, North Dakota, and Wyoming, which have been given authority to oversee the permitting process themselves. (Note: Louisiana’s authority is being challenged in an ongoing court case.)
- Arizona, Texas, and West Virginia have also applied for this authority.
Class VI permitting process & public participation:
- The permitting process starts when a project developer submits an application for a Class VI permit. To get the permit, the project developer needs to demonstrate the geology in the area can contain the CO2 — which includes showing that the area is free of faults and fractures and that CO2 injection will not cause earthquakes — among other requirements.
- When U.S. EPA prepares a draft permit for a new Class VI project, it is published for public review with at least 30 days for public comment. There are several opportunities for public participation, including submitting comments on the draft permits, requesting and attending public hearings, and filing appeals of final permitting decisions to EPA’s Environmental Appeals Board.
- EPA also encourages project developers to consider disproportionate and cumulative impacts on communities near Class VI permit projects. In August 2023, EPA released guidance for identifying, analyzing, and addressing environmental justice concerns related to Class VI permits. Among other recommendations, the Guidance says:
- EPA should evaluate whether a Class VI project will “create any new risks or exacerbate any existing impacts on affected communities,” including lower-income communities and communities of color;
- EPA and the project developer should “minimize adverse effects” on communities; and
- Project developers should ensure communities with environmental justice concerns are involved early and meaningfully in Class VI permitting actions.
While this guidance does not create legal requirements that can be enforced in court, it can be used to advocate for stronger protections in Class VI permits or to oppose Class VI permitting projects.
Resources
To learn more about Class VI permits, see:
Land Use Approvals
Hub projects that are consistent with already permitted land uses in an area will be considered “as of right.” If a developer demonstrates that a proposed development is as of right, local decision-makers cannot require changes to, or deny, the proposed development (it will still need to comply with other permitting requirements). Hub projects that use existing buildings and infrastructure are likely to be as of right.
Hub projects that are not consistent with existing land use restrictions, on the other hand, will need to seek approval from the local government. The approval needed can take multiple forms, including:
- A special use permit: Requires the developer to show that the proposed development is appropriate given the property’s current zoning. It is common for land use zones to list specific special uses that may be permitted at a property if the developer can show that the development is consistent with the types of uses already in the zone.
- A variance: Typically applies to situations where the project does not comply with property zoning restrictions or any allowed special uses. A developer may seek an “area variance” if the development would not comply with physical requirements like building height or lot size limits. A developer may seek a “use variance” if they want to use the property in a way that isn’t permitted by the zoning map (for example, the developer wants to site a heavy industrial use in an area zoned for light industry).
- To get a variance, a developer will generally need to show that they will face some degree of hardship if they cannot use the property as they would like to. If the developer is successful, they are given permission to develop the property in a manner that varies from its zoning, although the zoning is not changed.
- Rezoning: A developer might seek to rezone a property if their proposed use is inconsistent with current zoning, including special uses, and a variance is unavailable. This is typically a more involved process that, for example, requires public hearings.
Who makes the decision on a land use application will vary by jurisdiction and information on it can typically be found on a local government’s website.
- Some decisions may be made by a local planning agency.
- Some decisions may be made by a local planning board whose members are appointed by the local executive (such as the mayor or village president) and/or by the local legislature, such as the city council.
- Some decisions may be made by the local legislature, often with input from the planning agency and other officials.
- When engaging in a local land use project, including a Hub project, it is important to consider who the decision-makers are and what they care about.
The process for making land use decisions will also vary by location and is sometimes specified in state law. States and localities are likely to require public notice and public hearings for land use decisions, particularly for more significant decisions like a proposed rezoning.
Under DOE’s Guidance on Community Benefits Plans, Hub projects should also provide notice to impacted communities of any land use or other approvals they intend to seek.
Special use permits and variances can be denied and can also be granted with conditions that address the impacts of the development (these are sometimes called “exactions”).
- This could include measures to reduce traffic impacts, improvements to water and sewer lines, and dedication of some of the property for open space.
- A developer could also be required to pay a fee, with those funds used to offset impacts of the project.
Resources
To learn more about land use approvals:
- Chapter Nine: Land Use Approvals of the Advocates’ Guide to Effective Participation in Environmental Permit Proceedings for New Petrochemical Facilities (August 2023).
Other Permits & Approvals
Hydrogen Hub projects may need permits and approvals under other federal laws, and these may also provide public participation opportunities.
Among the other federal laws that might apply to a project, are the following:
- Clean Water Act, which creates permitting programs to protect our waters from pollution.
- Section 404 permits, which are issued by the Army Corps of Engineers, may be required for Hub facilities that are constructed near a waterway or wetland.
- To get a Section 404 permit, a project developer must show that it has taken steps to avoid and minimize potential impacts to waterways, wetlands, and aquatic resources.
- Section 404 permits are required before construction.
- Individual projects that need a 404 permit may also need to go through the NEPA environmental review process.
- National Pollution Discharge Elimination System (NPDES) permits, which are usually issued by a state environmental agency, may be required for Hub facilities that discharge water pollution through a pipe, ditch, or other “point source.”
- These permits set limits on the amount of water pollution a facility can discharge and apply to all types of industrial, municipal, and agricultural water pollution, like chemicals, residue from incinerators, sewage, and water that is much hotter than the water it is discharged into.
- Unlike Section 404 permits, NPDES permits are not required until after construction.
- Section 404 permits, which are issued by the Army Corps of Engineers, may be required for Hub facilities that are constructed near a waterway or wetland.
- Endangered Species Act, which protects endangered and threatened species, and their habitats.
- When a federal agency funds or approves a Hub project, that agency must consult with either the U.S. Fish Wildlife Service (freshwater and land species) or the National Marine Fisheries Service (marine species) to ensure the project is not likely to jeopardize the continued existence of any threatened or endangered species or cause the destruction of those species’ habitats.
- The Act also prevents actions that would harass, harm, or kill endangered animals.
- National Historical Preservation Act, which requires federal agencies to consider how a permitted activity might affect historic properties, including those of religious and cultural significance.
- This Act encourages — but doesn’t require — agencies to avoid harm to historic properties.
- As part of federal agencies’ evaluation under this Act, the public and Tribal Nations have the opportunity to alert the federal government to historic properties and comment or consult on decisions that affect those properties.
- If Tribal Nation cultural resources are impacted by a Hub project, federal agencies or the state in which the project is located may be required to consult with interested Tribal Nations.
- This review typically happens at the same time as the NEPA process.
Resources
For more information on these federal permits and approvals, see:
- Chapter Four: The Army Corps of Engineers’ Permits and Decisions, Advocates’ Guide to Effective Participation in Environmental Permit Proceedings for New Petrochemical Facilities (August 2023).
- Congressional Research Service, The Endangered Species Act: Overview and Implementation (March 2021)
- Advisory Council on Historic Preservation, Protecting Historic Properties: A Citizen’s Guide to Section 106 Review (2017)
Subsidy Requirements
Hydrogen Hub projects might be subject to additional requirements if they plan to seek other federal, state, or local subsidies, like tax credits or grants. The requirements will depend on the particular subsidy and could vary widely.
For example:
- Hub projects that are located in Illinois may plan to seek state tax credits for certain hydrogen uses. If they do, they will be required by state law to comply with specific environmental justice requirements in addition to those that DOE expects all Hubs to meet.
- Pennsylvania also has a hydrogen tax credit for certain businesses that purchase hydrogen from a Regional Clean Hydrogen Hub located in Pennsylvania.
- Hub facilities that produce hydrogen may seek federal “clean hydrogen production” tax credits created by the Inflation Reduction Act. These credits are sometimes called 45V credits. To qualify, facilities will have to prove that the lifecycle greenhouse gas emissions rate of their hydrogen does not exceed specific thresholds.
- Blue hydrogen‡ production facilities may also seek tax credits provided for carbon sequestration, knows as 45Q tax credits.
- Hub projects may seek additional subsidies from state and local governments that have their own standards and processes for approval.
Communications
Communications is a critical tool that communities can use to raise the profile of their Hub advocacy, influence public opinion about Hub projects, and put pressure on Hubs and decision-makers to address community concerns about a project.
Advocates can create attention and pressure through a number of strategies, including:
- Press: Research journalists at local newspapers, radio stations, and TV news. Send them an email or connect with them on social media to let them know about your advocacy. Consider writing a letter-to-the-editor to your local newspaper. Alert press to public events such as public hearings and rallies and make impacted community members available to talk to reporters.
- Social media: Spread the word through Facebook, Twitter, Instagram, or TikTok. Coordinate a consistent message and hashtag with other advocates. Consider making a short video to tell your story and personalize your ask.
- Phone-banking: Figure out key decision-makers and others that have influence over those decision-makers, such as local, state, and federal elected officials, and call their offices to make your voice heard. If possible, coordinate your timing with other advocates to amplify your message. Maximize your impact by making sure that outreach comes from people within an official’s district.
- Digital advocacy: Coordinate a letter-writing campaign, an online petition or an action alert to send letters to your decision-maker. This can be paired with press outreach to demonstrate the level of concern or opposition to a project.
- Paid advertising: If you have the resources, consider taking out an ad in the local paper or boosting your social media posts through paid advertising.
Consider the following questions when developing a communications strategy:
- Who is the audience? Make sure you have a clear sense of who you are trying to reach. Shape your messaging and communication tactics to ensure they will be effective with that audience.
- What message will resonate with the audience? Tailor your message to the interests and concerns of your audience. Try to narrow your message to no more than a few key points that are memorable and stick to those points. The VSPA messaging framework is a helpful tool to identify your main points.
- Who is the best messenger? Consider who will be the most compelling messenger(s) to your audience. Perhaps it is a neighbor, a constituent, a business leader, or a well-known member of the community.
- Which tactic will be most effective to reach the audience? Consider what media your audience is likely consuming to determine the best ways to reach them. Perhaps your key decision-maker is particularly concerned about reporting in their local paper. If you are trying to engage with younger people, consider social media, like Instagram or TikTok.
Lobbying
Communities can engage local, state, and federal policymakers on hydrogen projects impacting them.
- The National Low-Income Housing Coalition has a general guide for advocacy that communities can use to inform their work with policymakers.
- Greenpeace provides a helpful step-by-step guide focused on lobbying Congress.
Additionally, environmental justice organizations across the country have developed their own principles for hydrogen infrastructure that can help inform a communities’ perspective and messaging around Hub projects.
- The California Environmental Justice Alliance, a collection of environmental justice organizations representing heavily polluted communities across California, developed equity principles for green hydrogen production, delivery and storage, end-uses, and project decision-making in California.
- Just Solutions, a BIPOC-led organization that partners with communities disproportionately impacted by climate change, also has a Hydrogen EJ Framework communities can use as a messaging tool.
Updated on October 11, 2024
Maps and graphics by Casey Chin / Earthjustice. Basemap data sources: Esri, HERE, Garmin, FAO, NOAA, USGS, EPA.
Photo credits for Impacts graphic: Plant Scherer in Georgia (Waterkeeper Alliance). Hydrogen fueling station. (Ulrich Perrey / Picture Alliance via Getty Images) Hydrogen pipeline construction (Bernd Weißbrod / Picture Alliance via Getty Images). Smokestacks in Florida (Tetra / Getty Images). Dry Lake Oroville (Josh Edelson / AFP via Getty Images). Hillcrest neighborhood near “Refinery Row” in Corpus Christi, TX (Eddie Seal for Earthjustice).
This guide is intended for informational purposes only and does not constitute legal advice. The information contained herein is not a substitute for professional legal counsel. Please consult with an attorney to discuss your specific legal needs.
Questions? For questions or feedback on this Guide, please contact us at webmaster@earthjustice.org
Earthjustice’s Clean Energy Program uses the power of the law and the strength of partnership to accelerate the transition to 100% clean energy.
“Our nation has some of the greatest environmental laws in the world — but they are only as good as their enforcement. Otherwise, they are just words on paper.”