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A conversation with Tim Brightbill of Wiley Rein LLP

Today we’re talking with Tim Brightbill, a trade attorney at Wiley Rein LLP and lead counsel for a coalition of U.S. solar cell and module manufacturers – the American Alliance for Solar Manufacturing Trade Committee. Last week, his client won a massive victory – fresh tariffs on south Asian solar panel parts – on the premise that Chinese firms are dumping cheap products in the region to drive down prices and hurt American companies. It’s the latest in a long series of decadal trade actions against solar parts with Chinese origin.
We wanted to talk to Tim about how this move could affect developers, if an America-first strategy could help insulate solar from political opposition, and how this could play out in next year’s talks over the future of the IRA. The following conversation was lightly edited for clarity.
If you were talking to a developer, what would you tell them should be their takeaway?
I think the takeaway is that these determinations appear to go a long way toward addressing the unfair trade that’s been present in solar panels, solar cells, for more than a decade. And I think these duties do send a signal that will help build up domestic manufacturing. We’ve seen historic investment next to the Inflation Reduction Act in U.S. solar manufacturing facilities – in places like Georgia with QCells, in Ohio for First Solar – and we’re at a critically important point here.
Those investments were being undercut by this unfair trade by these Chinese-owned companies. We think now hopefully that will be addressed and that should lead to a bright future for solar deployment, the growth of solar power in the United States.
How does the pursuit of a fairer trade landscape globally in the broader sense impact support for solar energy in the U.S.? I hear often that a “made without China” approach can shore up support for renewables. Do you find that to be the case?
Definitely, I find that to be the case.
The U.S. industry invented solar technology and perfected it. And then unfortunately, it was virtually wiped out due to the unfair trade practices of China and these Chinese-owned companies. If we want to have solar and not be dependent on other countries for renewable energy needs, the best way to do that is to have a strong manufacturing base and a strong supply chain.
What do you think the direction of this is going to be under the next administration? Even more ratcheting up of trade measures?
Well the trade laws are a calculation, right? They’re based on rules, they’re not political. I don’t expect this administration to necessarily change individual trade cases. But I do think trade policy will change in a way that tries to address these Chinese-owned companies that undercut the rest of the world.
For example, the IRA provides right now potential benefits for any company that sets up shop here, even if they are owned by a foreign entity of concern. That seems like something this administration is going to address. If you’re going to receive IRA money, you should not be affiliated with a foreign entity of concern.
Given the potential for an impact on pricing, combined with the impacts on limiting the tax credits in that way – wouldn’t that make it harder to build projects in the U.S. short term?
I don’t think so. The solar panels themselves are not anywhere close to the majority of the cost of a project. There are so many other things that impact project cost, from permitting to the land. I don’t think this will impact the costs of deployment of solar. It will just give us a more secure supply chain that is either here in the United States or at least more regional in nature, which is going to be better for the industry.
With foreign entities of concern – are you referring to 45X? You’re anticipating that tax credit will change with respect to the IRA?
I expect the Trump administration will focus on that. There are already other related products under IRA where “foreign entity of concern” participation is not allowed for those tax credits. So it seems like a ready fix to ensure that is the same for solar technologies.
Is that bad news, or is that saving the credit?
I don’t think it’s bad news. I think it’s good news. It means more of the credit will be available to U.S. companies and our allies who might want to set up here as well.
If Chinese companies want to come here and set up in the United States, that’s great, but they shouldn’t also receive subsidies because those are the same companies that have harmed our industry with unfair trade for more than a decade.
Okay enough serious talk. Can I ask you a fun question: what was the last band you listened to?
It’s sort of dad rock-ish right now: Spoon. When I get my Spotify Wrapped, it’s going to be Spoon. That’s my favorite rock band right now.
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And more of the week’s top fights around development.
1. Richland Parish, Louisiana – Gird your loins for the coming fight over the Meta Hyperion data center’s gas pipeline.
2. Spartanburg County, South Carolina – I have one last data center race to tell you to watch on Tuesday: South Carolina’s 4th, on the northern rim of the state.
3. Goodhue County, Minnesota – Google reached a settlement with an environmental group suing to stop its data center in the small southern Minnesota town of Pine Island, resulting in what local press are saying will be the Land of 10,000 Lakes first state-level environmental review of a data center project.
4. Trumbull County, Ohio – Ohio looks like it just got a tad friendlier for data center opponents.
Talking with Kevin Gundersen, the head of public affairs for Digital Realty.
This week’s conversation is with Kevin Gundersen, head of public affairs for data center developer Digital Realty. On Wednesday, Digital Realty released a fascinating poll as part of Infrastructure for America, a pro-data center organization that also includes Compass, Vantage Data Centers, and QTS. The poll pushed back on the idea that we’re currently in the middle of a “data center election”; instead, it found most voters are not expected to choose their national elected officials based on a politician’s stance on data centers.
I reached out to folks involved in the poll's release, and they put me in touch with Gundersen, whom I’ve met before and consider to be a straight shooter. He accepted my invitation to do a candid hot-seat chat about the findings, his thoughts on all the data center attack ads, and whether his industry’s actually recovering any ground with the American people.
The following conversation was lightly edited for clarity.
So first off: Is this the “data center election”?
No. I think there are communities across this country that are learning about data centers and whose opinions are being formed by all sorts of things. I’ve also sat in communities that want data centers, that understand the benefits they provide, and I think there are loud voices on all ends of the spectrum saying things about data centers that frankly aren’t true. That’s unfortunate.
Now, that doesn’t dismiss people’s real concerns about data centers in communities that have never had them before or states that haven’t had them before. So it’s the industry’s job to have those conversations honestly and openly.
This is a new thing for the industry. If you look at the history of the data center industry, it was really confined to Northern Virginia, Santa Clara [California], and urban areas like New York City or Chicago where there are large customer bases and data needs. For the most part, people didn’t really pay attention to data centers.
This is now a historic build-out, so there’s an education going on. Data centers have become a physical manifestation of people’s fears about AI, and that’s something we need to manage as an industry. How we do that is to create organizations like IFA. Our company has been doing this for 25 years. We have 300 data centers around the world. For us, this is how we’ve always been doing this, but there’s no question our industry needs to be doing a better job as to why data centers benefit communities.
I think there’s a disconnect between what I see on the ground locally and the national narrative around the election. Every issue in America is nationalized. But if you look at some polls, this isn’t in the top five issues people are thinking about day to day.
It makes sense a data center developer would make this case. It’s your right to do so. But can you help me better understand the evidence, when we’re seeing so much television advertising attacking candidates for previous data center support?
The basis for me saying it is, I’ve sat in communities where people want data centers and been in parts of America that haven’t had revenue sources for decades. Now they have an opportunity for a data center in their city, county, state, and I think sometimes where there’s a disconnect is the national narrative around AI.
It’s hard to stop ChatGPT. But someone can use the data center as their target, so to speak. It’s the physical manifestation of their opposition to AI.
The biggest evidence is, there are a lot of communities that [have] welcomed data centers in the last 30 years. Not just the last couple of years. Santa Clara, California, is one of the nicest places in the country, and they have so many data centers. The history of people supporting data centers has been the norm, and the opposition is a relatively new thing in and of itself.
What about the electoral impacts? Have you personally not seen any? Either against your industry or for them?
We haven’t seen any of our developments’ electoral impacts on the local level yet. We could have this conversation next week after the election, but not yet. I honestly think I could answer that question better then.
But do I think data centers in most of America are the number one thing on people’s minds? No. Not when you talk to them outside the chatroom on Facebook when you can present dialogue and facts. There are communities that will decide they don’t want data centers. That’s fine. Some communities have made that decision. There are others who want them.
I’m not looking at next week. These developments are going to go on regardless of the election because there’s a huge demand for digital infrastructure, and a lot of communities do want these developments.
What do you see as the role of your polling when it comes to convincing the American public or the news media that this isn’t an election being decided by data centers?
IFA was created to tell stories about data centers and the benefits we provide to communities. These are real stories from real people and real companies. They’re mom-and-pop food trucks, electricians, real people all around the country. IFA is geared toward telling the story, a very positive story that is getting lost in the national debate.
When I think about the ads I see every day, the negative ads about data centers, these are real jobs. People making money wearing hard hats. I actually think it's unfortunate because I see people’s lives being lifted by data center development, and then they turn on their TV to see attacks on their industry.
The biggest companies in the world right now are taking their money and investing in the United States, creating a blue-collar jobs boom, and for some reason our politics make it something people want to oppose.
I think after the election there’ll be some kind of level set on both sides of the aisle because I think people were caught by surprise about some of the early polls on the AI issue that came out earlier this year. The industry wasn’t quick enough to talk about the benefits. But I think there are a lot of governors who’ve been balanced since they came into office about data center development, where they haven’t pushed moratoriums because they realize there are benefits from data centers.
The AI issue is great on the campaign trail, but separating AI from data centers and the investments they bring to a community is important. Data centers provide digital infrastructure. The demand for that is only going up.
Why should a skeptic of this industry believe this information from a developer?
I mean, have they talked to the IBEW? Have they talked to the unions? There are a lot of constituencies out there that see the benefits of data centers. Don’t take my word for it. Go to a community and talk to people.
There’s going to be people who don’t want a data center in their community, but if we do it openly, transparently, and tell the story of who we are — we’ve been around for 25 years! There’s all sorts of information out there about our company. And we’re going to keep talking to communities.
Why should they believe us? We don’t have anything to hide, and we’ll bring benefits to their community. That might sound like a cliché answer, but it’s the case.
What do you think the outcome will be from so many attack ads about data centers?
I think it's unfortunate, and I think it's bad for the country because elected officials right now are spending tens of millions of dollars in political ads telling people data centers are bad when in fact they bring huge benefits to communities.
We’re going to have to spend lots of time and energy and resources to make up for that. Perhaps we should’ve been doing this sooner. I’m sure we’d all in this industry loved to have gotten our story out before the campaign cycle took hold. We can’t go back and change the past.
I always say, we have the truth and physics on our side. What I mean by that is, we’ve got a great story, these developments have tons of benefits, and the demand is only going up. People have two phones. They have connected devices in their homes. Flat-screen TVs and Oura rings and Ring cameras. When you think about the digital products and services you use every day, it’s massive.
We’re going to have to tell our story. I do think a lot of elected officials at all levels of government want us to go do that. When I sit behind closed doors with folks, they know the benefits. People of both parties.
Only upgrades for pre-existing wind projects have been approved.
In September, the Trump administration told a reporter that the president directed the Pentagon to finally process wind projects through routine airspace approvals as required under a court order. By doing this, it created the appearance of real headway and good faith in talks with Democrats in Congress on energy permitting legislation before the November midterm elections.
But the White House’s assurances are not what they seem.
All of the projects the administration has reportedly advanced over the past week are repowerings, meaning they’re only upgrades of existing projects, and two of the “projects” they’ve advanced were just two individual turbines, the American Clean Power Association on Tuesday told members involved in litigation with the administration.
Over the course of his presidency, the president’s team has turned what was once a sleepy bureaucratic check for radar or flight interference into a weapon against wind energy in the United States. You need Federal Aviation Administration clearance for any structure above 200 feet in the air and that process includes a Pentagon review. By claiming wind projects suddenly needed new scrutiny for national security reasons, the Pentagon held up FAA airspace approvals for apparently hundreds of projects.
This has been a key part of bipartisan energy legislation talks back in D.C., as Democrats in Congress have demanded at least some semblance of regular order be returned to renewable energy in federal permitting. The permitting bill ostensibly has ways to strengthen wind companies’ hand in dealing with a hostile Trump administration but negotiators, including Sen. Sheldon Whitehouse, have also previously called attacks on wind projects during negotiations harmful to a final deal becoming law.
In September, Politico reported Trump told his aides he would agree to direct the Defense Department to “start clearing its queue of long-delayed onshore wind projects to strike a deal” citing “two people familiar with the talks and granted anonymity.” Among the commitments Politico reported were made: to approve about 30 projects awaiting a countersignature from the Pentagon on a mitigation agreement related to airspace impacts.
In federal court, the renewable energy trade groups who brought the lawsuit clearly don’t think the Trump administration actually followed through with that promise.
On Oct. 20, after updates from the Justice Department showed little signs of progress (which I wrote about), the trade groups filed a motion to enforce the judge’s stay on their air clearance freeze, saying that very little had advanced since the ruling in early August, and that none of the 30 projects awaiting countersignature on their mitigation agreements actually had advanced from Pentagon review. In addition, they said the government was now asking project developers to sign onto a litany of new requirements in exchange for a sign-off on mitigation agreements. They submitted a joint declaration from subject matter experts, including from former military personnel, who described these requirements as a vast departure from precedent with little basis in security rationale that they said also had terms that could violate state or local laws, like a blanket prohibition on aircraft detection light systems. (You can read the declaration here.)
Two days later, on Oct. 22, it started to look like we were getting somewhere when news outlets reported the Trump administration was "advancing" two “wind projects” in South Dakota and Maine, citing statements from the White House and the Pentagon.
Bob Ditchey, a spokesperson for the Pentagon, told us in an email that the two “wind projects” were Crowned Ridge, which he said consisted of 87 turbines in “Grant, SD,” and “Blue Sky/Hill,” which he said was made up of 19 turbines in “Hancock, ME.” Ditchey described them both as “proposed” wind energy “developments.”
“Following rigorous evaluation of potential impacts on military readiness, radar installations, and airspace operations, the DoW has cleared both projects to proceed to the next phase of federal evaluation,” Ditchey said in an email. “The projects have been formally referred to the Federal Aviation Administration (FAA) for final aeronautical study and determination.”
The South Dakota wind project Trump officials are referencing is likely NextEra’s Crowned Ridge wind farm, which has 87 turbines and has been operational since 2019. On Oct. 5 a NextEra project consultant submitted a litany of height clearance requests for a “repowering project” on behalf of Crowned Ridge Energy Center, LLC, according to the Federal Aviation Administration’s public database. The requests are for turbines in Grant County.
There is no Maine wind project with the name “Blue Sky/Hill,” as far as we can tell, but there is a project in Hancock County that was completed in 2012 called “Bull Hill” that consists of 19 turbines, and which also has pending applications for repowering in the FAA’s database.
Neither NextEra nor Bull Hill’s developer, TerraForm Power, responded to our requests for comment. The Pentagon also did not respond to questions about these projects or the additional ones it said it had advanced.
In addition, as of this story’s publication, all of the air clearance requests for these two projects are all listed as “pending” online.
If you’re wondering why operational wind farms might need air clearances for construction, all of the wind farms’ requests describe the projects as “repowering,” an industry term that applies to upgrading, modifying, altering or restarting pre-existing wind farms. A repowering can mean anything from fixing turbine blades to changing turbine height, or moving a turbine, or commissioning new turbines entirely. Crucially though it’s not really considered a “new wind farm” in the colloquial sense. As my colleague Matthew Zeitlin has explained, repowerings are seen by the energy sector as a simple pathway to the most juice for the squeeze from what has already been permitted and built.
On Tuesday, Punchbowl News reported that the White House was advancing three more wind projects in Illinois and Iowa. After this story ran, American Clean Power told members involved in the airspace litigation clarifying that all of the projects thus far are “repowerings” and that the two Illinois “projects” each were only individual wind turbines. None of the projects were new utility scale projects.
On Wednesday, just before this story went to press, Punchbowl News reported another two wind projects were advancing, calling it “more permitting goodwill from the White House.” We have not yet been able to confirm what these projects are or whether they are also repowering projects.
American Clean Power endorsed the bipartisan Senate permitting bill and called for its passage. The group provided a comment from Frank Macchiarola, their chief advocacy officer: “To date, the administration has moved forward only a handful of the total number of projects they agreed to approve. In order to pass BAAJA and bring down costs for Americans, the Administration needs to get serious about building clean power.”
The White House did not respond to a request for comment.