Chamber of Commerce Rails Against Trump's End to Solar Tariff Exception at CAFC

President Donald Trump's move to revoke an exclusion to Section 201 safeguard measures on bifacial solar panels was "particularly pernicious," the U.S. Chamber of Commerce and the American Clean Power Association argued in a July 12 amicus brief at the U.S. Court of Appeals for the Federal Circuit. The amici said that safeguard measures should be applied in a way that's "predictable, circumscribed, and allows for reasonable business planning," and that Trump's move violated these principles. Revoking the exception injected uncertainty into government-imposed safeguard measures, which will have a ripple effect in the economy, potentially making inflation and supply chain crises worse, they said (Solar Energy Industries Association v. United States, Fed. Cir. #22-1392).

The plaintiff-appellees in the action, led by the Solar Energy Industries Association, launched the case to challenge Trump's proclamation withdrawing an exclusion on bifacial solar panels from the Section 201 safeguard duties on imported crystaline silicon photovoltaic solar panels. Section 204 of the Trade Act of 1974 says the president can, on his or her own authority, "reduce, modify, or terminate" previous safeguard duties after finding the industry has made a "positive adjustment to import competition."

The case hinged on the definition of "modify," with the plaintiffs successfully arguing that this encompasses only trade liberalizing action and the government pushing for a broader definition. The plaintiffs said it defies "logic and congressional intent" to bolster trade restrictions when the domestic industry has made a "positive adjustment." The trade court agreed, ruling that interpreting the statute to include both trade liberalizing and trade restricting modifications would run counter to the "detailed statutory scheme" (see 2111160032). The U.S. and the appellees have now submitted their first round of briefs in the case at the Federal Circuit (see 2207070073).

The amici argued against the president's authority to revoke tariff exclusions on behalf of businesses. The amicus brief focused its arguments on the practical effects that permitting the president to have such power will have. Per the Chamber and the American Clean Power Association, the cardinal sin committed was creating uncertainty around how safeguard measures are applied.

"The predictability of government-imposed measures such as tariffs is an important systemic issue," the amicus brief said. "Uncertainty harms American manufacturing, which depends on reliable, timely supply chains (including imported products) to be able to manufacture goods efficiently and cost-effectively here in America. Unplanned-for tariffs and other unreasonable trade measures chill commerce. They also harm American consumers, who ultimately pay higher prices as a result of business uncertainty."

The Chamber and Clean Power said that the modern history of safeguard measures is consistent with their views. The brief said that every safeguard measure imposed since at least 1988 laid out the applicable rates for the entire duration of that measure, "providing predictability to business." The efforts to revoke the exclusion "could not have been anticipated by the business community based on" the history of the safeguard law's application. "This Court should not endorse a Presidential action that contributes to the uncertainties already confronting U.S. supply chains and further burdens U.S. firms making their best efforts to adhere to the rules," the brief said.