Liability and the Hydrogen Economy
Shared 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 LETTERS e-mail (firstname.lastname@example.org), the Web tions and published engineering standards. *Member of the Michigan Bar and District of (www.letter2science.org), 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. www.oxychem.com/products/msds/m1142.pdf). 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). Downloaded from www.sciencemag.org on July 16, 2008 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: email@example.com effects of fishing efforts being redistributed www.sciencemag.org SCIENCE VOL 301 4 JULY 2003 47 LETTERS 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 Downloaded from www.sciencemag.org on July 16, 2008 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: firstname.lastname@example.org 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 www.sciencemag.org LETTERS 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, Downloaded from www.sciencemag.org on July 16, 2008 Full text at www.sciencemag.org/cgi/content/full/301/5629/49a 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 www.sciencemag.org/cgi/content/full/301/5629/49b Academy Press, Washington, DC, 2001).