Solar trade case could fall to ‘unbridled’ Trump

Source: Zack Colman, E&E News reporter • Posted: Thursday, September 21, 2017

A closely watched decision coming tomorrow could put the fate of the U.S. solar industry squarely in the hands of a White House that’s looking to hit China, the looming adversary in the case, on trade.

The International Trade Commission is expected to rule in favor of a pair of solar companies pressing for punitive measures against Chinese firms that they say have unfairly flooded the market with cheap solar cells and modules, according to sources familiar with the case. The panel is short one member, but the companies that brought the petition would win in a split ruling.

The case presents an opportunity for President Trump to capitalize on major policy goals: get tough on China by exerting trade muscle — the administration already is conducting a holistic review of China’s trade policy to combat intellectual property theft and other matters — while taking action to buoy U.S. manufacturing, and perhaps alleviate competition for the coal industry by raising solar prices through tariffs (Climatewire, Aug. 15).

The White House would have the final say on what policy to pursue if the ITC finds injury to the petitioners in a case that’s pitted free-market advocates and the vast number of installers, solar service providers and others in the industry against manufacturers Suniva Inc. and SolarWorld Americas, both of which have filed for bankruptcy.

An intense round of lobbying is likely to ensue if the ITC finds injury. It would make formal trade remedy recommendations to Trump by Nov. 13, and the White House would make a final decision by Jan. 12, 2018.

Whether a tariff is issued — and at what rate — would become the question for a president who has reportedly instructed advisers to “bring me some tariffs” on China, according to Axios.

Some of the behind-the-scenes jockeying and position moderating is already occurring. A handful of “conservative bigwigs” are trying to persuade the White House to accept a more modest tariff than the 40-cent-per-watt duty on cells and the 78-cent-per-watt floor price for panels that the petitioners are seeking, according to a source.

The Solar Energy Industries Association opposes the bid by Suniva and SolarWorld based on the concern that it could hurt workers if tariffs hike up the cost of solar technology. The group’s CEO, Abigail Ross Hopper, has been in contact with the White House, the Commerce Department, the U.S. trade representative and others. Conservative groups like the Heritage Foundation have also voiced concern because of the case’s far-reaching nature, as it would impose across-the-board tariffs on solar rather than targeting a specific country or company.

Hopper is preparing for every outcome. While saying she does “not think trade relief is appropriate,” Hopper acknowledged SEIA is exploring solutions beyond tariffs to offer before a Sept. 27 deadline for proposals, should the ITC rule in favor of Suniva and SolarWorld.

“We are only even considering remedies that would not harm the petitioners,” she said, declining to offer details. “The president has unbridled discretion to do whatever he feels is appropriate.”

The petitioners are also exploring additional options, said Tim Brightbill, a lawyer with Wiley Rein LLP who is representing SolarWorld.

“We’re trying to seek the best solution that will help solar manufacturers and will help keep demand strong and keep the industry growing as a whole,” Brightbill said.

A finding of injury could have significant implications for U.S. solar manufacturing and the supply chain that’s evolved as panel prices have plummeted.

Opponents, including SEIA, contend it would raise prices enough to shed jobs for installers, electrical workers and others who constitute the 260,000-person sector.

“In the worst-case scenario, it will further slow and stall an already beleaguered American marketplace, but it won’t kill that marketplace,” said Michael Dorsey, a partner at ECE North America. “It will kill some jobs, and that will be a function of how high an ultimate rate of a tariff is.”

Suniva and SolarWorld contend protective action is justified to preserve U.S. manufacturing of high-tech solar kits and have pushed back against some of their opponents’ price increase claims.

“This case is about almost 30 U.S. cell and module manufacturers driven out of business in the last 5 years, leaving only two U.S. companies to stand between China and its proxies from owning the sun,” Suniva said in a statement, referencing a report prepared by ITC staff. “The immediate question before the ITC on September 22nd is whether the injury is real and almost 30 companies killed off in 5 years does not lie.”