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.

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Photo of John Brew John Brew

John Brew is the co-chair of Crowell & Moring’s International Trade Group and a partner in the firm’s Washington, D.C. office. He has extensive experience in import and export trade regulation, and he regularly advises corporations, trade associations, foreign governments, and non-governmental organizations…

John Brew is the co-chair of Crowell & Moring’s International Trade Group and a partner in the firm’s Washington, D.C. office. He has extensive experience in import and export trade regulation, and he regularly advises corporations, trade associations, foreign governments, and non-governmental organizations on matters involving customs administration, enforcement, compliance, litigation, legislation and policy.

John represents clients in proceedings at the administrative and judicial levels, as well as before Congress and the international bureaucracies that handle customs and trade matters. He advises clients on all substantive import regulatory issues handled by U.S. Customs and Border Protection and Immigration and Customs Enforcement, such as classification, valuation, origin, marking, tariff preference programs, other agency regulations, admissibility, import restrictions, quotas, drawback, audits, prior disclosures, penalties, investigations, Importer Self Assessment and Customs-Trade Partnership Against Terrorism programs, importations under bond, the Jones Act, vessel repairs, and foreign trade zone matters.

Photo of Larry Eisenstat Larry Eisenstat

Larry Eisenstat is a partner in Crowell & Moring’s Washington, D.C. office, where he is chair of the firm’s Energy Practice. He has considerable experience handling both regulatory and transactional matters, as well as litigation, compliance, and enforcement matters on behalf of both…

Larry Eisenstat is a partner in Crowell & Moring’s Washington, D.C. office, where he is chair of the firm’s Energy Practice. He has considerable experience handling both regulatory and transactional matters, as well as litigation, compliance, and enforcement matters on behalf of both energy and non-energy companies. He also devotes a substantial part of his time to energy policy, strategic planning, investment, and corporate reorganization matters.

Photo of Robert L. LaFrankie Robert L. LaFrankie

Robert L. LaFrankie is a partner in Crowell & Moring’s International Trade Group and resident in the firm’s Washington, D.C. office. Bob regularly advises manufacturers, exporters, and importers in all aspects of international trade and customs proceedings before various government agencies, courts, and…

Robert L. LaFrankie is a partner in Crowell & Moring’s International Trade Group and resident in the firm’s Washington, D.C. office. Bob regularly advises manufacturers, exporters, and importers in all aspects of international trade and customs proceedings before various government agencies, courts, and international tribunals. He focuses on trade-related litigation and counseling, including trade remedy proceedings and U.S. Customs compliance and enforcement issues. Bob has successfully defended numerous clients located throughout Asia, Europe, and the Americas that produce or import a diverse range of products, including flat-rolled and specialty steel products and components, chemicals and plastics, frozen and canned food products, paper products, motor vehicle parts and components, specialty valves and valve systems, disposable lighters, petrochemical and renewable fuels, anti-friction bearings, and other manufactured products. In addition to litigation and compliance counseling, Bob engages in strategic trade remedy and customs planning activities for clients, particularly for companies with global sourcing, manufacturing, and export/import operations. He also advises companies with regard to NAFTA compliance issues and related audits of client facilities.

Photo of Frances P. Hadfield Frances P. Hadfield

Frances P. Hadfield is a counsel in Crowell & Moring’s International Trade Group in the firm’s New York office. Her practice focuses on forced labor and withhold release orders (WRO), import regulatory compliance, and customs litigation. She regularly advises corporations on matters involving…

Frances P. Hadfield is a counsel in Crowell & Moring’s International Trade Group in the firm’s New York office. Her practice focuses on forced labor and withhold release orders (WRO), import regulatory compliance, and customs litigation. She regularly advises corporations on matters involving customs compliance, audits, customs enforcement, as well as import penalties.

Frances represents clients before the U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit, as well as in proceedings at the administrative level. She advises corporations on both substantive federal and state regulatory issues that involve U.S. Customs and Border Protection, the Federal Trade Commission, Food and Drug Administration, and U.S. Fish & Wildlife in matters pertaining to product admissibility, audits, classification, import restrictions, investigations, marking, licenses, origin, penalties, and tariff preference programs.