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Manufacturers and installers have different opinions on tariffs.
The American solar industry is in a tizzy over tariffs. On one side are the companies that develop, finance, and install solar systems. On the other, the American (or American-located) companies that manufacture them.
China’s solar panel industry has been a combination of boon and bugaboo for American renewable energy efforts for years. On the one hand, the solar development sector has benefitted from the cheap panels they have happily put up on roofs and in fields across the country, underpinning the massive growth of solar power in the past decade.
And then on the other there’s the still-nascent American solar manufacturing industry (and a South Korean company with a substantial facility in Georgia), which joined together to file petitions with the Department of Commerce and the U.S. International Trade Commission Wednesday, beseeching them to investigate what it argues are violations of trade laws by Chinese-owned solar panel manufacturers in Southeast Asia.
The group claims that China’s 80% market share in solar products is a “near monopoly” underpinned by “unfair trade practices,” including subsidies and selling at below-cost. About two-thirds of installed solar panels come from overseas, the group claims, “with the majority arriving without safeguard measures or tariffs from China via Malaysia, Vietnam, Cambodia, and Thailand.” The Southeast Asian imports the petition targets are worth some $12 billion annually.
“America’s solar manufacturing industry is on the cusp of tremendous growth that will create jobs and change the trajectory of our clean energy transition for decades to come,” Tim Brightbill, a lawyer representing the group, said in a release. “However, this manufacturing renaissance is being threatened by China’s industrial policy, which has led to massive subsidization in China and Southeast Asia.”
The solar manufacturers’ petition comes as a two-year moratorium on tariffs against Chinese solar panels is due to expire next month. Solar developers had been lobbying the White House to boost other kinds of support for American solar manufacturing, hoping to head off any push for new tariffs, Bloomberg reported. But according to Reuters, the administration is inclined to take the protectionist side.
“Reducing reliance on Chinese clean energy imports, such as solar panels, is among the most bipartisan issues within clean energy,” Morningstar analyst Brett Castelli wrote in a note. For Republicans, China‘s solar dominance represents yet another strategic asset controlled by an adversary state. For Democrats, they are choking off a burgeoning American manufacturing sector.
And yet the question is not as simple as support U.S. solar or don’t. The likely “tightening of solar panel imports into the U.S. would benefit First Solar,” an American solar manufacturer that’s part of the petitioning group, Castelli wrote, “while being a net negative for the rest of our solar sector coverage.”
The Biden administration has long put itself squarely behind American solar. The Inflation Reduction Act’s advanced manufacturing production credit subsidizes domestic renewable energy manufacturing in the United States, while Treasury Secretary Janet Yellen has criticized Chinese “overcapacity” in renewable energy technology. On the installer side, there are tax credits and subsidy programs to make solar more affordable to individuals.
While the solar manufacturers certainly are not unhappy with their tax credits, they see action on trade as an existential issue.
“Everyone knows these Chinese-headquartered companies in Southeast Asia are benefiting from subsidies and exporting below-cost solar into the U.S. market, harming American solar manufacturers and their workers,” Mike Carr, the executive director of the Solar Energy Manufacturers for America Coalition, said in a statement. “Conditions are untenable for American solar manufacturers.”
Other renewable energy trade groups — The American Council on Renewable Energy, the American Clean Power Association, and Advanced Energy United — call tariffs a threat to clean energy deployment. The manufacturers’ petition “creates market uncertainty in the U.S. solar industry and poses a potential threat to the build-out of a domestic solar supply chain,” the groups said in a statement, which also noting that they support a “strong domestic solar supply chain,” and specifically the tax credits that encourage onshore production of solar panels.
But while trade groups lament the stoking of trade war to anyone who will listen, companies — or at least one very big company — is telling its investors that things are going to be OK.
NextEra, one of the country’s largest renewable energy developers and operators, has been telling investors and analysts that the petitions and potential tariffs would not be a big deal.
“We expect that any trade actions that would occur this time around will be very manageable,” NextEra CEO John Ketchum said on the company’s quarterly earnings call Tuesday. The company didn’t expect any potential trade restriction “to result in delivery stoppages,” he added, and since NextEra orders panels well before actual construction on a project commences, that “gives us a lot of time and opportunity to be able to troubleshoot any issues should they arise,” Ketchum said.
Finally, even if there were new tariffs, the gap in cost between domestic and overseas panels – the exact thing that the solar manufacturers and the Biden administration lament — is so large that “there’s a lot of economic reasons for deliveries to continue to occur.” Even a 15% tariff on Chinese solar panels, Ketchum said, would be “quite manageable.”
While everyone says they want an American solar manufacturing industry to succeed, trade protection and tax credits can only go so far.
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How the Migratory Bird Treaty Act could become the administration’s ultimate weapon against wind farms.
The Trump administration has quietly opened the door to strictly enforcing a migratory bird protection law in a way that could cast a legal cloud over wind farms across the country.
As I’ve chronicled for Heatmap, the Interior Department over the past month expanded its ongoing investigation of the wind industry’s wildlife impacts to go after turbines for killing imperiled bald and golden eagles, sending voluminous records requests to developers. We’ve discussed here how avian conservation activists and even some former government wildlife staff are reporting spikes in golden eagle mortality in areas with operating wind projects. Whether these eagle deaths were allowable under the law – the Bald and Golden Eagle Protection Act – is going to wind up being a question for regulators and courts if Interior progresses further against specific facilities. Irrespective of what one thinks about the merits of wind energy, it’s extremely likely that a federal government already hostile to wind power will use the law to apply even more pressure on developers.
What’s received less attention than the eagles is that Trump’s team signaled it could go even further by using the Migratory Bird Treaty Act, a separate statute intended to support bird species flying south through the U.S. from Canada during typical seasonal migration periods. At the bottom of an Interior press release published in late July, the department admitted it was beginning a “careful review of avian mortality rates associated with the development of wind energy projects located in migratory flight paths,” and would determine whether migratory birds dying because of wind farms qualified as “‘incidental’ takings” – harm or death – under the Migratory Bird Treaty Act.
While not stated explicitly, what this means is that the department appears to be considering whether to redefine these deaths as intentional under the Migratory Bird Treaty Act, according to Ben Cowan, a lawyer with the law firm Troutman Pepper Locke.
I reached out to Cowan after the eagle investigation began because his law firm posted a bulletin warning that developers “holding active eagle permits” might want to prepare for “subpoenas that may be forthcoming.” During our chat earlier this month, he told me that the eagle probe is likely going to strain financing for projects even on private lands that wouldn’t require any other forms of federal sign-off: “Folks don’t want to operate if they feel there’s a significant risk they might take an eagle without authorization.”
Cowan then voiced increasing concern about the migratory bird effort, however, because the law on this matter could be a quite powerful – if legally questionable – weapon against wind development.
Unlike the Endangered Species Act or the eagle protection law, there is currently no program on the books for a wind project developer to even obtain a permit for incidental impacts to a migratory bird. Part of the reason for the absence of such a program is the usual federal bureaucratic struggle that comes with implementing a complex statute, with the added effect of the ping-pong of federal control; the Biden administration started a process for permitting “incidental” impacts, but it was scrapped in April by the Trump team. Most protection of migratory birds under the law today comes from voluntary measures conducted by private companies and nonprofits in consultation with the federal government.
Hypothetically, hurting a migratory bird should be legally permissible to the federal government. That’s because the administration loosened implementation of the law earlier this year with an Interior Department legal opinion that stated the agency would only go after harm that was “intentional” – a term of art under the statute.
This is precisely why Cowan is fretting about migratory birds, however. Asked why the wind industry hasn’t publicly voiced more anxiety about this potential move, he said industry insiders genuinely hope this is “bluster” because such a selective use of this law “would be so beyond the pale.”
“It’s basically saying the purpose of a wind farm is to kill migratory birds, which is very clearly not the case – it’s to generate renewable electricity,” Cowan told me, adding that any effort by the Interior Department would inevitably result in lawsuits. “I mean, look at what this interpretation would mean: To classify it as intentional take would say the purpose of operating a wind farm would be to kill a bird. It’s obviously not. But this seems to be a way this administration is contemplating using the MBTA to block the operation of wind farms.”
It’s worth acknowledging just how bonkers this notion is on first blush. Is the federal government actually going to decide that any operating wind farm could be illegal? That would put entire states’ power supplies – including GOP-heavy states like Iowa – in total jeopardy. Not to mention it would be harmful overall to take operating capacity offline in any fashion at a moment when energy demand is spiking because of data centers and artificial intelligence. Even I, someone who has broken quite a few eye-popping stories about Trump’s war on renewables, struggle to process the idea of the government truly going there on the MBTA.
And yet, a door to this activity is now open, like a cleaver hanging over the industry’s head.
I asked the Interior Department to clarify its timeline for the MBTA review. It declined to comment on the matter. I would note that in mid-August, the Trump administration began maintenance on a federal dashboard for tracking regulations such as these and hasn’t updated it since. So we’ll have to wait for nothing less than their word to know what direction this is going in.
And more on the week’s most important conflicts around renewable energy projects.
1. Santa Fe County, New Mexico – County commissioners approved the controversial AES Rancho Viejo solar project after months of local debate, which was rendered more intense by battery fire concerns.
2. Nantucket, Massachusetts – The latest episode of the Vineyard Wind debacle has dropped, and it appears the offshore wind project’s team is now playing ball with the vacation town.
3. Klickitat County, Washington – Washington Gov. Bob Ferguson is pausing permitting on Cypress Creek Renewables’ Carriger solar project despite a recommendation from his own permitting council, citing concerns from tribes that have dogged other renewables projects in the state.
4. Tippecanoe County, Indiana – The county rejected what is believed to have been its first utility-scale solar project, flying in the face of its zoning staff.
5. Morrow County, Oregon – This county is opting into a new state program that purports to allow counties more input in how they review utility-scale solar projects.
6. Ocean County, New Jersey – The Jersey shoreline might not get a wind farm any time soon, but now that angst is spreading to battery storage.
7. Fairfield County, Ohio – Hey, at least another solar farm is getting permitted in Ohio.
Talking NEPA implementation and permitting reform with Pamela Goodwin, an environmental lawyer at Saul Ewing LLP.
This week’s conversation is with Pamela Goodwin, an environmental lawyer with Saul Ewing LLP. I reached out to her to chat about permitting because, well, when is that not on all of our minds these days. I was curious, though, whether Trump’s reforms to National Environmental Policy Act regulations and recent court rulings on the law’s implementation would help renewables in any way, given how much attention has been paid to “permitting reform” over the years. To my surprise, there are some silver linings here – though you’ll have to squint to see them.
The following chat was lightly edited for clarity.
So walk me through how you see the Trump administration handling renewable energy projects right now under NEPA.
In general, the federal government has been much more reluctant to the timely issue of permits in contrast to what we might be seeing on the more traditional side of things.
But that’s separate from NEPA — it relates to public notice and comments and the opportunity for third parties to get involved, ensuring any decision-making on the government side is done in a way that’s evocative of a fair system. On the NEPA side, I don’t know if they’re going to treat renewables any differently than they’re going to treat other sorts of projects. That’s different, from a policy perspective, [from] how they’re handling the permits.
If, from a policy perspective, the federal government is less inclined to make a determination about a particular project — or if it decides that it doesn’t like wind, for example, and isn’t going to issue a permit — that’s different than the procedural elements associated with a NEPA review.
The Supreme Court recently ruled in the Seven County case that agencies can be granted a lot of deference in their reviews under NEPA, seeing it more as a procedural statute than a substantive roadblock. What will this lead to?
I think that what we’re seeing – and every agency’s different – but what the court said is that lower courts should defer to the agency to establish their own protocols under NEPA. They’ve begun to streamline the process by which they issue permits, issue notices of those permits, and give people the opportunity to comment on them.
What we’re anticipating will happen if the court gets its wishes – and candidly, I think this is a good thing for developers, on both the renewables and non-renewables side – is that we’ll see more expeditious permitting from the federal government.
You may not like the determinations. There’s a possibility that certain permits are denied if the nature of the permit is in conflict with the federal government’s policy and intention. But you’ll get a quicker decision than you used to get. And if there’s a will to issue a permit, you’ll get it faster.
We’ve heard the concept of permitting reform or NEPA reform as a leveling of the playing field, but in this environment, it is not entirely clear that’ll be the case. Where does the battleground turn then for those who get, as you put it, rejections faster?
That’s a great question. Regrettably, the immediate battleground is the courts. There is certainly a right and an opportunity for anybody who feels a determination was incorrect to challenge that, and to challenge the particular agency’s implementation of NEPA.
Okay, but what’s the remedy here if renewables companies are just getting rejections faster from the Trump team?
Without a real-world example, it’s hard to give you legal theories, but they will always exist. It’ll be circumstantial, and good lawyers always come up with good arguments. I don’t think this issue is fully resolved, either. The Supreme Court has done a favor to everybody by at least defining the issue, but now we’ll have to see what happens as agencies make these kinds of determinations.