A cross-practice C&M team scored two major victories for Invenergy Renewables LLC in related cases challenging the Trump Administration’s attempts to re-impose tariffs on bifacial solar panels. This was the government’s third attempt to re-instate tariffs on bifacial solar panel imports and the history of these cases is long and tortured. As background, the U.S. Trade Representative (USTR) enacted the safeguard tariffs in January 2018 during the Trump administration to address a temporary surge in solar cell imports. Solar panel importers and domestic solar panel producers argued as to whether dual-sided solar panels should be excluded from the increased tariffs and several companies petitioned USTR to issue an exclusion for bifacial panels. After granting the bifacial panel exclusion in mid-2019, the USTR attempted to withdraw it only a few months later. The C&M team blocked that move by filing a complaint on behalf of their client Invenergy and quickly moving for a TRO and preliminary injunction. The court granted the TRO and then entered a Preliminary Injunction in December 2019, finding that USTR’s action was likely arbitrary and capricious. USTR tried to remedy those deficiencies through a new notice-and-comment process, culminating in a new rule again withdrawing the solar panel tariff exclusion in April 2020. The government then asked the court to lift its PI—but again Invenergy prevailed, convincing the court that USTR’s action remained arbitrary and capricious.

In October 2020, then-President Trump attempted to overcome the court’s decisions and issued a Proclamation withdrawing the bifacial solar panel exclusion. He used Section 204 of the Trade Act of 1974 to place safeguard tariffs on two-sided solar panels and increased the duty on them from 15% to 18% ad valorem. However, Section 204 of the Trade Act of 1974 sets forth specific conditions allowing the “reduction, modification or termination” of an existing safeguard, including that a majority of the domestic industry petition the president to take action.

The C&M team brought a new suit to challenge that executive action, and again prevailed. The CIT’s November 16 opinion agreed that, under Section 204 of the Trade Act, the President may not reimpose the safeguard tariff on solar panels. On November 16, the Court of International Trade granted summary judgment in favor of Invenergy and its co-plaintiffs in their challenge to Presidential Proclamation 10101, in which President Trump attempted to withdraw a tariff exclusion for bifacial solar panels critical to U.S. utility-grade solar developments. And on November 17, the court granted judgment to Invenergy and its co-plaintiffs in their challenge to the Trade Representative’s prior attempt to withdraw the solar panel exclusion. The court’s November 17 opinion held that USTR lacked statutory authority to take such action, and that USTR’s action was also arbitrary and capricious because USTR did not sufficiently explain its decision or respond to comments from Invenergy and others.

The C&M team included John Brew, Larry Eisenstat, Amanda Berman, Katie Clune, Frances Hadfield, Robert LaFrankie, Jacob Zambrzycki, Alex Rosen, Brian McGrath, April Marconi, Brad Hutter and Jena Talarico. The C&M team partnered with counsel for the Solar Energy Industries Association (SEIA) and other solar importers and developers in both cases, but took the lead in briefing and arguing the first case, and briefed and argued key parts of the second.