Who Regulates Offshore Hydrogen? de-risking and legal classification challenges

Offshore hydrogen is often presented as a technical challenge: how to combine offshore wind, electrolysis, pipelines and existing North Sea infrastructure. Yet before those systems can operate at scale, Dutch law must answer a more basic question: what, legally, is a hydrogen-only offshore installation? The answer determines much more than terminology. Classification decides which authority grants the permit, which safety standards apply, whether the operator must secure future decommissioning costs and which court may review the eventual decision. The difficulty is that the Dutch Mining Act, or Mijnbouwwet, was designed mainly for extracting minerals and hydrocarbons, not for producing hydrogen by electrolysis using seawater and renewable electricity. The issue is particularly acute for a project such as Phynix: a former oil-and-gas platform recovered from a scrapyard, repurposed for hydrogen production and intended for offshore deployment around 2030. Unlike a conventional mining platform, it would not extract anything from the subsurface. Unlike the Demo 1 hydrogen project, it would not necessarily be located within a designated offshore wind-farm site. It therefore sits between existing statutory categories.

Three competing legal routes

The first possibility is an extensive interpretation of the Mijnbouwwet. Under this approach, the platform would remain, or again become, a “mining work” because of its offshore location, structural resemblance to an oil-and-gas platform and previous regulatory status. This route has practical attractions. The State Supervision of Mines, or SodM, already possesses offshore safety expertise, while the Mining Act provides established rules on certification, supervision, removal and financial security. Its doctrinal weakness is substantial. Hydrogen produced by electrolysis is not a mining activity in the ordinary or statutory sense. It involves no extraction, reservoir intervention or geological storage. Extending the Mining Act because its institutional machinery is convenient risks replacing statutory interpretation with administrative pragmatism. Express legislative amendment would provide a sounder legal basis.

The second possibility is a "sui generis" regime combining the Energiewet, the Omgevingswet and hydrogen-specific safety guidance. This approach better respects the textual limits of the Mining Act and treats offshore hydrogen as a new energy activity rather than a variant of mining. It could also divide responsibilities more coherently among the Minister of Climate Policy and Green Growth, the Authority for Consumers and Markets, Rijkswaterstaat and technical regulators. The hydrogen provisions required to implement the EU Hydrogen and Decarbonised Gas Market Directive are still emerging. A project preparing for deployment in 2030 may therefore seek permission while the governing framework remains under construction. Interim permit conditions could later require amendment, while regulators may impose conservative requirements in the absence of settled legislation. The third route is to treat the installation as an appurtenance to an offshore wind farm under the Wet windenergie op zee, which is linked to the Hollandse Kust Noord wind-farm area and offshore electricity and hydrogen infrastructure. For installations located within a designated wind-energy site, this route offers an integrated spatial and energy-law framework and as a platform outside a wind-farm site, or one lacking a close functional connection to a designated wind project.

Existing demonstration projects offer only partial precedents; for instance, PosHYdon added hydrogen production to an existing gas platform and could rely on continuity of its mining-law status. Its electrolyser was integrated into an established offshore gas operation, while the resulting hydrogen could be transported through existing pipeline infrastructure. Demo 1 benefits from a different form of regulatory integration. It is associated with the Hollandse Kust Noord wind-farm area and is being developed alongside major electricity and hydrogen infrastructure operators. Neither project therefore resolves the classification of a repurposed hydrogen-only platform operating independently from both hydrocarbon production and a designated wind-farm site.

Picture from Energy Reinvented Community, Phynix project (Eemshaven), March 2026.

Consequences beyond the permit

Classification also affects matters beyond permitting. If the Mining Act applies, the operator may face removal and financial-security obligations designed for commercial oil-and-gas companies. These obligations may be difficult for a not-for-profit or educational foundation to satisfy, particularly where the organisation does not possess the balance sheet of a conventional energy company. Public funding, discounted infrastructure or contributions from state-linked entities may also trigger EU State aid rules. Support must be assessed under Articles 107 and 108 TFEU and, where relevant, structured within the General Block Exemption Regulation or notified to the European Commission. A platform with an educational mission may receive students and other non-employee visitors. Conventional offshore safety frameworks are primarily organised around employees and contractors. A hydrogen demonstration platform may therefore require a bespoke safety document addressing visitor access, supervision, emergency procedures and exposure to offshore operational risks.

Regulating before engineering choices become irreversible

A project needs to begin structured pre-application consultations with the Ministry and SodM well before submitting its permit application where they also need to monitor the Demo 1 permit and related State aid assessment, clarify responsibility for decommissioning and prepare a bespoke safety case addressing educational visitors. Most importantly, the legal route shall be selected before engineering decisions become irreversible. The location of the platform, its connection to an offshore wind farm, the identity and financial capacity of the operator, and the method used to transport hydrogen may all affect its eventual statutory classification. That uncertainty creates risk, but also institutional opportunity. Projects that engage early, identify the limits of existing legislation and offer legally defensible solutions may do more than obtain permission to operate: they may help shape the regulatory category governing the next generation of North Sea hydrogen infrastructure.

Picture from Author's archive. Thanks ERC and ir. David Molenaar, Phynix, Eemshaven, March 2026.

References

1. Mijnbouwwet, Stb. 2002, 542.

2. Energiewet, Stb. 2024, 305.

3. Omgevingswet, Stb. 2016, 156.

4. Wet windenergie op zee, Stb. 2015, 261.

5. Directive (EU) 2024/1788 on common rules for the internal markets for renewable gas, natural gas and hydrogen [2024] OJ L 2024/1788.

6. Commission Regulation (EU) No 651/2014 declaring certain categories of aid compatible with the internal market [2014] OJ L 187/1, as amended.

7. M.M. Roggenkamp, ‘The Regulation of the Dutch Subsoil: From Petroleum to Storage’, in M. Roggenkamp et al. (eds), Energy Networks and the Law (Oxford University Press 2012).

8. E. de Leede and J. Vermeulen, ‘Offshore Developments in the Netherlands: Updates on the Wind Energy Roadmap and Offshore Hydrogen Demo Project’ (Bird & Bird, 2024).

9. Netherlands Enterprise Agency, ‘Offshore Hydrogen Production’.

10. Habraken Rutten et al., ‘Renewable Energy 2025: Netherlands’ (Chambers Practice Guide, 2025).