Court throws out Trump trade action on bifacial modules

The U.S. Court of International Trade (CIT) issued a decision that re-instates an exclusion of bifacial solar modules from Section 201 tariffs. The exclusion originally was extended in 2019, but later was revoked by the Trump Administration in an October 2020 proclamation.

The court found that while the Trump’s proclamation complied with procedural requirements of the safeguard statute, the action was outside of the president’s delegated authority.

The court in its 32-page decision prohibited further enforcement of the proclamation, which was numbered 10101. The court order effectively reinstated an earlier exemption from tariffs for bifacial modules.

In addition, the court decision reduced the Section 201 tariff rate from 18% to 15% after it was raised as part of Proclamation 10101. Both actions will result in refunds of the tariffs that had been collected under the proclamation.

The Solar Energy Industries Association (SEIA) called the decision a win for the solar industry.

Abigail Ross Hopper, SEIA president and CEO, said the decision to strike down the presidential proclamation “was clearly the right conclusion.” She said the proclamation’s actions amounted to an unlawful attempt to harshen the Section 201 tariffs.”

The Trump administration’s main argument was that bifacial modules were likely to account for a greater share of the market in the future and could substitute for monofacial products in a range of market segments. It continued that exempting imports of bifacial modules from the safeguard tariff would apply “significant downward pressure” on prices of domestically produced modules.

At the time, Trump also cited the impact of bifacial’s growing share of the U.S. market as his reason for putting a hold on the fourth year step-down of the solar tariffs from 20% to 15%. He opted, instead, to reset the rate for all imported solar panels at 18%. When first imposed in 2018 as part of Trump’s trade war with China, the tariffs were set at 30%, to be decreased 5% each year for four years.

In February, 17 U.S. clean energy CEOs  urged President Biden to repeal the solar tariff proclamation, which the leaders called “punitive” and “ill conceived.”

In a letter to Biden, the CEOs said that the proclamation increased the 2021 trade tariff rate for imported solar cells and modules and argued that the decision “arbitrarily” revoked the exclusion for bifacial solar panels.

Led by SEIA and supported by the American Clean Power Association, the letter called attention to the proclamation’s impact to existing solar contracts and discussed how harmful the Section 201 tariffs are to the U.S. economy and the industry’s ability to address climate change. The CEOs asked Biden to return the tariffs to status quo and restore business certainty.