The Biden administration stood behind Trump’s stance on solar tariffs in a Monday filing with the U.S. International Court of Trade, a move that could harm efforts to challenge those duties from the solar industry’s largest trade group.
The new administration asked the court to dismiss a complaint from some members of the solar industry arguing that an October proclamation from President Trump is unlawful. That proclamation placed tariffs on bifacial solar, which had been excluded from tariffs on imported cells and modules, and also increased the level of tariffs in their fourth and final year.
That solar industry complaint « fails to set forth a plausible showing that the President’s determination involves a clear misconstruction of the governing statute, a significant procedural violation or action outside delegated authority, » the filing from the U.S. Department of Justice stated.
The department also argued that Trump « acted lawfully and fully within his authority” to re-instate tariffs on bifacial solar “by closing a loophole that the President determined had been undermining the effectiveness of the safeguard measure on solar products.”
The request for dismissal is the latest entry in a years-long fight over solar tariffs, which the Trump administration established under Section 201 in January 2018. Much of that conflict has revolved around the previous administration’s attempts to dissolve an exclusion for two-sided solar panels, which it granted and later revoked in the span of a few months in 2019. The Solar Energy Industries Association and developers NextEra Energy, EDF Renewables and Invenergy Renewables challenged the Trump proclamation in a case filed in December.
The filing from the Biden administration may shed some light on the new president’s somewhat opaque stance on solar tariffs. President Biden campaigned on a pledge for unprecedented buildout in clean energy. But he has also emphasized the central role of U.S.-made goods and domestic job growth.
This month, the U.S. Trade Representative said the administration would review past trade policies, including those on solar.
The DOJ filing could result in the case being terminated, said Dave Glynn, an attorney at Holland & Hart. But that does not mean the administration “will not address the solar panel tariff issue in other ways.”
“The DOJ is making a legal conclusion, » Glynn said in an email, « but not opining on the benefits that may accrue by prohibiting the tariff increases and continuing the bifacial panel exclusion. Biden has publicly stated his support for renewables so I expect he will approach this differently and by legally exercising his power to remove duties that hinder his long-term energy policy. He will also need to balance this with his goal to put more Americans to work, an argument advanced by the plaintiffs in this case.”
Biden’s interest in spurring U.S. jobs in clean energy has also led several policy experts to raise the possibility of some type of continued tariffs on imported solar.
“Just because Trump is for something doesn’t mean Joe Biden’s against it,” Jeff Navin a co-founder at consultancy Boundary Stone Partners, told Greentech Media in August. Navin, who worked at the Department of Labor and the Department of Energy during the Obama administration, said tariffs are likely to “still be on the table” in a Biden administration.
At the same time, calls have also been growing louder for Biden to confront the issue. In February, 17 CEOs of solar development companies and renewable energy trade organizations sent a letter asking Biden to rescind what they called a “punitive and ill-conceived” proclamation from President Trump. In December, 12 Senate Democrats also sent Biden a letter calling for a repeal of the tariffs.