Appeals court tosses bid to block solar tariffs

Source: Ellen M. Gilmer, E&E News reporter • Posted: Tuesday, June 19, 2018

A federal appeals court will not grant Canadian companies’ request to block President Trump’s solar tariffs.

The U.S. Court of Appeals for the Federal Circuit on Friday rejected a challenge from three Canadian solar manufacturers and one U.S. importer seeking relief from the contentious new trade restrictions.

The firms — Silfab Solar Inc., Heliene Inc., Canadian Solar (USA) Inc. and Canadian Solar Solutions Inc. — in March asked the Federal Circuit to reverse a lower court’s decision allowing the tariffs to remain in effect. They say the extra charges on crystalline silicon photovoltaic cells shipped to the U.S. from other countries violate federal law.

The Federal Circuit was not persuaded.

“We conclude that the President’s actions here were lawful and that accordingly, appellants have not established a probability of success on the merits as required for a preliminary injunction,” Judge Timothy Dyk, a Clinton appointee, wrote for the court.

Specifically, the challengers had argued that the tariffs violate the 1974 Trade Act because they relied on a variety of remedy recommendations from members of the U.S. International Trade Commission instead of one majority-backed remedy.

The appeals court’s three-judge panel was skeptical during oral arguments last month, noting that while the commissioners were split on the appropriate remedy, they all agreed that foreign imports caused “serious injury” to American manufacturers (Energywire, May 14).

“The simple answer to this claim is that the President’s authority to act is not conditioned on the existence of such a recommendation,” they concluded in Friday’s opinion. “It is conditioned only on an ITC’s finding of serious injury, or the threat thereof.”

They also rejected the companies’ argument that the tariffs violate the U.S. law that implements the North American Free Trade Agreement, which limits the application of tariffs to countries with products that represent a “substantial share” of U.S. imports. Though the ITC found that Canadian solar products are a minor portion of imports, the judges said they had no jurisdiction to second-guess President Trump’s contrary determination.

The solar companies’ underlying case will continue moving forward in the U.S. Court of International Trade. Experts consider it a long-shot given the unfavorable preliminary rulings issued so far.

Meanwhile, the Trump administration is busy crafting an assortment of other trade restrictions aimed at boosting domestic manufacturers. A round of tariffs announced Friday includes additional charges on Chinese solar cells and panels (E&E News PM, June 15).