DOJ's Arguments Don't Explain Procedural Violations in Solar Panel Tariff Exemption Reversal, SEIA Says

The Solar Energy Industries Association continued to push back on the government's arguments that President Donald Trump properly considered the domestic industry's views when he removed an exemption to Section 201 tariffs on bifacial solar panels. The revocation of the tariff exemption should be reversed, plaintiffs challenging the president's actions said in a June 25 brief. Responding to a filing from the Department of Justice defending the decision to pull the tariff exemption, plaintiffs, led by the SEIA, further alleged procedural shortcomings in the president's actions (Solar Energy Industries Association et al. v. United States, CIT #20-03941).

DOJ said in its filing that a president can consider a petition from the majority of the domestic industry to be received when representatives of the industry, by volume, have submitted petitions requesting the tariff exemption be lifted (see 2106150059). SEIA said that there are multiple holes in this interpretation and that the petition DOJ refers to is actually a series of three letters signed by only six domestic solar panel producers out of a total of 20. "Sporadic letters from various companies can hardly be said to reflect the views of the industry as a whole," the brief said, "particularly when each letter said something different, and none of them addressed what the statute actually requires." Further, the law explicitly says the petition must be submitted by a "majority of representatives," indicating a majority of individual producers, SEIA said.

The governing statute also allows the president to "reduce, modify, or terminate a safeguard action only 'if the President determines, after a majority of the representatives of the domestic industry submits to the President a petition requesting such reduction, modification, or termination on such basis, that the domestic industry has made a positive adjustment to import competition.'" SEIA paid particular attention to the last phrase of this line, finding that a positive adjustment to import competition is a requirement for modifying the safeguard action. DOJ called this interpretation "tortured" but didn't offer an alternative reading of the text, SEIA said.

The president also failed to weigh the "social and economic costs and benefits of withdrawing the Exclusion," SEIA said. DOJ argued that the statute itself doesn't impose this type of analysis. In a separate section of the statute regarding tariffs, the law requires the president to "take all appropriate and feasible action within his power which the President determines will facilitate efforts by the domestic industry to make a positive adjustment to import competition and provide greater economic and social benefits than costs." The fact that this requirement occurs in Section 201 and not in Section 204 of the statute does not mean that Section 204 is exempt from it, SEIA said. DOJ's interpretation of this law would "swallow the rule," so it must be nixed, the brief said.