Liability and the Hydrogen Economy by dxi20863


									       Letters to the Editor
  Letters (~300 words) discuss material published
  in Science in the previous 6 months or issues
  of general interest. They can be submitted by
  e-mail (, the Web        tions and published engineering standards.          *Member of the Michigan Bar and District of
  (, or regular mail         Work is ongoing to change existing codes            Columbia Bar and formerly Group Leader for
  (1200 New York Ave., NW, Washington, DC           and regulations to reduce compliance costs,         Energy Storage Programs at Ford Motor Company.
  20005, USA). Letters are not acknowledged         but that exercise will have little effect on a          References and Notes
  upon receipt, nor are authors generally           court’s determination of negligence liability.       1. American Petroleum Institute, Fuel Choices for Fuel
  consulted before publication. Whether                                                                     Cell Powered Vehicles, 11, 13 (undated).
                                                        Product liability imposes strict liability to    2. Occidental Chemical Corporation, Material Safety Data
  published in full or in part, letters are subject
                                                    everyone normally engaged in selling a                  Sheet for Hydrogen Gas, 6 December 2000 (available at
  to editing for clarity and space.                                                               
                                                    product having a “dangerous defect” when-
                                                                                                         3. Air Products and Chemicals, Inc., Material Safety Data
                                                    ever personal or property injuries are                  Sheet for Hydrogen (Rev. 3/90, 1990).
         Liability and the                          incurred, even when the product was                  4. See, e.g., J. Hord, Int. J. Hydrogen Energy 3, 157 (1978).
                                                    subjected to reasonably foreseeable misuse           5. Fed. Reg. 65, 6729 (2000).
     Hydrogen Economy                               (9). Courts have found “dangerous defects” to        6. National Aeronautics and Space Administration,
                                                                                                            Office of Safety and Mission Assurance, Safety
                                                    include inadequate warnings, which could                Standard for Hydrogen and Hydrogen Systems –
HYDROGEN FUEL CELL TECHNOLOGIES ARE impose product liability for imperceptible                              Guidelines for Hydrogen System Design, Materials
being championed as a way to further envi- hydrogen leaks and flames that cause injuries.                   Selection, Operations, Storage, and Transportation, at
                                                                                                            A-103 (NASA, Washington, DC, 1997).
ronmental and national security policy A court could also determine hydrogen,                            7. Restatement (Second) of Torts §§ 281, 282, 302A,
objectives. However, hydrogen’s physical which is not odorized in accordance with                           497 (1965).

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properties differ significantly from other fuels existing Department of Transportation regula-           8. Restatement (Second) of Torts §§ 283, 285, 289, 290,
                                                                                                            295A, 299A (1965).
and require special handling procedures that tions (10), to have a “dangerous defect,” as the            9. Restatement (Third) of Torts: Prod. Liab. §§ 1, 2 (1998).
are rarely discussed. The gas and its flame are Colorado Supreme Court did for unodorized               10. 49 C.F.R. §192.625 (2002).
invisible and odorless (1), the heat radiation propane (11).                                            11. Blueflame Gas Inc. v. Van Hoose, 679 P2d 579 (1984).
                                                                                                        12. Restatement (Second) Torts §§ 519, 520, 522 (1965).
from its flame is slight (2, 3), and its ignition       An abnormally dangerous liability (i.e., a      13. 29 C.F.R. § 1910.103 (2002).
energy is much lower and its flammable tort where injuries are likely to result even                    14. 42 U.S.C. § 2210.
composition in air much wider than any of the though one exercises “utmost care”) occurs
other fuels in use or under consideration for for injury-producing activities where there is                     Modeling Marine
future use (4). Moreover, identification of an “inability to eliminate the risk by exercise
effective “odorants” is unlikely because of reasonable care” (12). Some technologies,                            Protected Areas
hydrogen’s low molecular weight makes it such as aviation, once considered to be abnor-
more mobile than all other gasses and because mally dangerous, have been transformed to a               WE COMMEND E. SALA ET AL. FOR INCLUDING
many materials, including sulfur compounds, normally dangerous classification through the               a socioeconomic factor—density of small
irreversibly poison fuel cell catalysts (5).        passage and enforcement of voluminous               fishing boats—in their analysis of marine
    Liability is seldom addressed in studies of regulations. However, it is difficult to imagine        reserve networks in the Gulf of California (“A
the hydrogen economy. Industrial experience how hydrogen use could be assured a                         general model for designing networks of
has shown that 22% of                                              normally dangerous classifica-       marine reserves,” Reports, 6 Dec., p. 1991).
hydrogen accidents are caused                                      tion through the relaxation of       There are, however, some critical omissions in

by undetected leaks (6), despite               Liability is        the existing eight pages of          the socioeconomic analysis that should be
the special training, standard                    seldom           hydrogen regulations (13), or        mentioned if other scientists are contem-
operating procedures, protec-              addressed in            alternatively, how additional        plating a similar exercise and, more impor-
tive clothing, and electronic           studies of the             regulations could lead to cost       tantly, if policy-makers are considering using
flame and gas detectors                                            savings. A finding of a normal       such methods to support marine protected
provided to the limited number                  hydrogen           danger requires additional           area (MPA) design.
of hydrogen workers. With this                economy.”            negligence analysis, while a             First, literature on the political economy
track record, it is difficult to                                   finding of an abnormal danger        of marine reserve creation shows that
imagine how hydrogen risks                             –MOY        imposes strict liability without     heavily exploited areas have low opportu-
can be managed acceptably by                                       further analysis.                    nity costs and therefore are likely to be
the general public when wide-scale deploy-              Tort liability is unaffected by legislative     accepted by the fishing industry as sites for
ment of these safety precautions would be or regulatory actions unless the government                   restricting fishing. This result is seen
costly and public compliance impossible to indemnifies disputes between private                         where fishing is open to all and is due to
ensure. Undetected leaks and flames may parties. When the government previously                         catch rates in these areas being already
raise liability costs for the hydrogen economy offered such intervention, it has been for               depressed. Therefore, the likelihood that
that need to be addressed.                          nuclear technologies handled by a limited           the dispersal benefits from the reserve
    Three well-established tort liabilities number of specially trained and licensed                    outweigh the opportunity costs of closing
could be implicated for hydrogen-related professionals (14). However, the purported                     off an area to fishing is higher when
injuries. Negligence liability would apply benefits of the hydrogen economy presume                     heavily exploited areas are closed (1). By
when injuries result when one breaches a wide-scale deployment to the general public.                   ensuring that the most heavily fished areas
“duty of care” (7). The standard for the duty An economic analysis of liability and associ-             remain open in their model, the authors are
of care for the handling of hydrogen— ated insurance costs would thus be extremely                      choosing areas for MPAs that decrease, not
behavior expected from a reasonable profes- timely and relevant.                                        increase, the potential benefits of marine
sional in the field (8)—is set by four decades                                        RUSSELL MOY*      reserves.
of willful compliance with Occupation 2800 Woodley Road NW, Room 426, Washington,                           Second, the analysis fails to consider the
Safety and Health Administration regula- DC 20008, USA. E-mail:                         effects of fishing efforts being redistributed

                                          SCIENCE     VOL 301      4 JULY 2003                                                               47
     after the closure of MPAs, a fact that has         choosing the closed areas based on the set of                      Response
     been shown theoretically and empirically to        variables and decision criteria. However, the                      AS SANCHIRICO ET AL. ARE NO DOUBT AWARE,
     reduce the biological and economic effec-          choice of variables and the weights given to                       the U.S. National Research Council (NRC)
     tiveness of marine reserves (1, 2).                them are completely subjective. We believe                         recently released a report on marine protected
         Third, there is also no mention of the         that the authors had the former in mind when                       areas (MPAs) and their role as an important
     commercial fishing fleet, tourists, and other      making this statement, but the latter should not                   tool for ocean governance and management
     types of small-scale fishers in the Gulf of        be dismissed, especially in the political                          (1). While stressing the importance of stake-
     California that make up the human ecology          economy of fishery policy.                                         holder buy-in or acceptance, this report
     of the region. For example, the area around            In summary, we emphasize that although                         emphasized that reserves are needed to protect
     the Isla de Tiburon qualified as an MPA in         analysis intended to aid MPA siting decisions                      biological resources rather than economic
     part because it has low fishing density. What      can never be objective, researchers should                         systems. Because one of us (P.K.D.) was an
     the analysis fails to take into account is that    strive to better represent the complex ecolog-                     author of the NRC report (as was one of the
     this area is currently being managed by the        ical, sociocultural, and economic dimensions                       Letter authors, R. Stoffle), our paper carefully
     Seri Indians, who have legal authority to keep     by including variables that are sufficient to                      followed the first recommendation of the NRC
     other fishers out and have lived and used          capture the range of human activity in their                       report: “The design of MPAs should proceed
     these marine resources for hundreds of gener-      study region.                                                      through four stages: (1) evaluate needs, (2) set
     ations. Because of their stewardship, this area           JAMES N. SANCHIRICO,1* RICHARD STOFFLE,2                    goals, (3) assemble data on the region to be
     benefits from substantial environmental                     KENNY BROAD,3 LIANA TALAUE-MCMANUS3                       served by the MPAs, and (4) outline various
     protection. Surely, Mexican officials would        1Resources for the Future, 1616 P Street NW,                       options for siting areas that meet the previ-
     want to understand how these top-down              Washington, DC 20036, USA. 2Bureau of Applied                      ously agreed-on goals” (1, p. 176). The NRC
     models of reserve creation enable or destroy       Research in Anthropology, University of Arizona,                   report also suggests that the first objective of

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     the social and economic fabric of coastal          Tucson, AZ 85721, USA. 3Rosenstiel School of                       MPAs is “to protect biodiversity. In the design
     communities that have independently created        Atmospheric and Marine Science, University of                      of a system of marine reserves and protected
     management regimes for their coastal waters.       Miami, Miami, FL 33149, USA.                                       areas, the complete spectrum of habitats
         Fourth, the authors state that “[t]he most     *To whom correspondence should be addressed.                       supporting marine biodiversity should be
     important benefit of this approach is the objec-    E-mail:                                        included with emphasis on safeguarding
     tivity it provides to the process of siting           References                                                      ecosystem processes” (1, p.177).
     marine reserves.” This is misleading. Once                                                                                Although we share the concerns of
                                                        1. J. N. Sanchirico, J. E. Wilen, J. Environ. Econ. Manage.
     the relative weights are placed on each compo-        42, 257 (2001).                                                 Sanchirico et al., we believe we have been
     nent, the objectivity comes from the algorithm     2. M. D. Smith, J. E.Wilen, J. Environ. Econ. Manage., in press.   faithful to the objectives of the NRC report to

48                                               4 JULY 2003      VOL 301          SCIENCE
first protect marine biodiversity with sensi-               fishing boats as an example of how socioeco-                fishing.” Because some of us have been
tivity to local economic concerns. If society               nomic factors can be incorporated from the                  working in marine conservation in the Gulf of
were forced to await the satisfaction of all                beginning of a reserve planning process,                    California for a long time, we understand that
economic interests before protecting their                  rather than post hoc, to reduce social conflict.            different models can be applied under
resources, it is unlikely that much protection              We also explicitly stated that future models                different objectives and cultures. As
would ever occur, and thus the resources                    need to account for “additional social factors,             Sanchirico et al. must be aware, the political
supporting the economic concerns would                      including future threats.” These additional                 economy of marine reserves is based on local
continue their collapse.                                    factors include those outlined by Sanchirico et             cultures, which implies that solutions that
    Sanchirico et al. misunderstand our posi-               al. We aimed at reducing social conflict by                 work in one area might not work in the next.
tion that this was a general model, not a final             reducing the overlap between high fishing                   Moreover, if an area identified as a conserva-
solution, and that it is based on a compromise              pressure and the location of marine reserves,               tion priority already has good management,
between ecological safeguards and economic                  but, as we wrote in our Report, “having                     this would not only reduce the need for addi-
considerations. We used the density of small                reserves near fisheries can be beneficial to                tional management, but also reinforce the
                                                                                                                        adequacy of local management regimes.
                                 TECHNICAL COMMENT ABSTRACTS                                                                We welcome other models that offer the
COMMENT ON “A Green Algal Apicoplast Ancestor”                                                                          same degree of ecological protection and
                                                                                                                        improved economic futures.
Ross F. Waller, Patrick J. Keeling, Giel G. van Dooren, Geoffrey I. McFadden                                                      ENRIC SALA,1 OCTAVIO ABURTO-OROPEZA,2
Funes et al. (Brevia, 13 December 2002, p. 2155) argued that apicomplexan cox2 genes originated by lateral gene                           GUSTAVO PAREDES,1 IVAN PARRA,3
transfer from a green algal progenitor of the apicomplexan plastid. However, inclusion of ciliate (close apicomplexan                  JUAN C. BARRERA,3 PAUL K. DAYTON1
relatives) data in the analysis supports vertical inheritance of cox2 in apicomplexa and refutes this conclusion.       1Center  for Marine Biodiversity and Conservation,

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Full text at
                                                                                                                        Scripps Institution of Oceanography, La Jolla, CA
RESPONSE TO COMMENT ON “A Green Algal Apicoplast Ancestor”                                                              92093, USA. 2Universidad Autónoma de Baja
                                                                                                                        California Sur, La Paz, Baja California Sur, México.
Soledad Funes, Edgar Davidson, Adrián Reyes-Prieto, Susana Magallón, Pascal Herion, Michael                             3Gulf of California Program–World Wildlife Fund,
P. King, Diego González-Halphen                                                                                         Hermosillo, Sonora, México.
Based on three observations made about ciliate mitochondrial cox2 sequences,Waller et al. refute our hypoth-               Reference
esis for a chlorophyte origin of nucleus-encoded, fragmented cox2a and cox2b genes in apicomplexa. We find               1. National Research Council, Marine Protected Areas:
none of their arguments compelling and stand by our original suggestion of a green algal apicoplast precursor.              Tools for Sustaining Ocean Ecosystems (National
Full text at                                                               Academy Press, Washington, DC, 2001).

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