Solar Importers File Another Lawsuit on Bifacial Exclusion, Increase in Safeguard Tariffs

The Solar Energy Industries Association and several solar importers filed a lawsuit Dec. 29 seeking to invalidate a recent presidential proclamation reimposing solar safeguard duties on bifacial panels and upping the safeguard tariffs on all imported solar cells. Joined by Invenergy Renewables, NextEra Energy and EDF Renewables, the SEIA says President Donald Trump failed to follow the requirements of the safeguard laws when he issued the proclamation in October.

“The imposition of safeguard duties is an extraordinary act. Congress created a statutory scheme that is intended to balance the interests of all affected parties, and the procedures that Congress created for imposing and modifying safeguard measures were meant to be followed,” the complaint said. “The President cannot ignore them or rewrite them himself in order to achieve his desired policy outcomes.”

According to the complaint, Trump failed to meet several of those procedural requirements when he issued Presidential Proclamation 10101 on Oct. 10 (see 2010130028). For one, any modification must come as a result of an industry complaint, and while Trump mentioned one in the proclamation, he “did not specify which petition he was referring to, and Plaintiffs are not aware of any petition having actually been submitted to the President,” the complaint said.

The statute relied upon by Trump to modify the safeguards is intended to allow for a loosening of the measures once industry has made a “positive adjustment,” the complaint said. Trump found only that industry has “begun to” make a positive adjustment as a result of the safeguard, not that it actually has done so, and then illegally based a tightening of safeguards on that finding, it said. The proclamation also illegally reimposed on bifacial panels safeguards less than two years after they were terminated, and did not consider the economic and social costs and benefits, as required by statute, the complaint said.

The complaint marks the latest salvo in a long-running dispute over solar safeguards that began with the withdrawal of an exemption for bifacial cells in October 2019 by the Office of the U.S. Trade Representative. The Court of International Trade in a previous case involving some of the same plaintiffs found that withdrawal by the USTR, as well as a subsequent attempt to withdraw it again, was unlawful but declined to rule on the proclamation, holding different legal questions were at issue and that a new lawsuit would be required (see 2011190020).

As did Invenergy as lead plaintiff in that previous case (see 1912050063), the SEIA seeks an injunction stopping the proclamation from being implemented or enforced, along with a finding that the proclamation is “unlawful and therefore null and void.” The SEIA and the solar importers also seek refunds of safeguard duties already collected as a result of the proclamation.

Email ITTNews@warren-news.com for a copy of the complaint.