Governors' Wind Energy Coalition

Bifacial solar panels, which absorb sunlight on both sides and can generate about 10% more electricity than traditional panels, were granted an exemption back in June from the president’s tariffs on solar imports.

Then in October, the U.S. trade representative abruptly reversed its decision, announcing in a Federal Register notice that the exemption would “undermine the objectives” of the tariffs (Energywire, Oct. 7).

The U.S. Court of International Trade found yesterday that the USTR violated laws for federal rulemaking by limiting the public comment period of the reversal to 19 days instead of 30. It barred the USTR’s reversal from going into effect as the case proceeds.

“That was a win for us, and we’re very pleased about it,” said Dan Whitten, vice president of public affairs for the Solar Energy Industries Association (SEIA), one of the four plaintiffs in the case. “But obviously it’s a temporary injunction.”

The USTR and the White House did not respond to requests for comment.

The court also signaled that Invenergy LLC, a solar developer and lead plaintiff, may have favorable odds of prevailing on the larger question of whether the USTR should restore the exemption for bifacial panels. Judge Gary Katzmann wrote that the preliminary injunction was being granted partly on the grounds that Invenergy was “likely to succeed on the merits.” Invenergy is using bifacial panels on its largest solar development, the 160MW Southern Oak project being built for Georgia Power.

The tariffs on solar imports, which this year were 25% and fall by 5 percentage points per year through 2021, were also the subject of an all-day hearing yesterday at the U.S. International Trade Commission, which is conducting a midterm review of President Trump’s tariffs.

One point of disagreement that emerged during the hearing, including among companies that support the tariffs, was whether panel manufacturers should be able to import a larger number of solar cells than currently permitted. About 2.5 gigawatts of foreign-produced cells can be imported per year for use in U.S.-manufactured panels.

Suniva, one of the original petitioners for tariffs, told the USITC in pre-hearing filings that the bifacial exclusion had “a disproportionately negative impact” on the company, which emerged from bankruptcy this spring.

Lawyers for the company claimed the exemption for bifacial panels — which in 2018 made up about 3% of the global market, according to BloombergNEF — had allowed manufacturers to circumvent tariffs using an “immense loophole.”

Foreign panel makers, they said, were able to “quickly reassess their strategies” and shift from monofacial to bifacial production.

Analysts agree that tariffs have helped generate interest in bifacial technologies, although they also ascribe its growth to increasing affordability. In September, Wood Mackenzie analysts estimated that bifacial solar’s share of the market in 2024 would quadruple this year’s levels.

Industry advocates at SEIA have said they fear that the president could decide to make the tariffs on cells and panels even stricter. In the lead-up to the hearing, they estimated that tariffs could cost nearly $19 billion in investment, 62,000 jobs and over 10 GW of installations (Energywire, Dec. 4).

Reporter Lesley Clark contributed.