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Q&A

An America First Strategy for Renewable Energy?

A conversation with Tim Brightbill of Wiley Rein LLP

Tim Brightbill of Wiley Rein LLP.
Heatmap Illustration

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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Spotlight

Trump Asked to Kill Wyoming Wind Projects for Eagles

Conservationists in Wyoming zero in on a vulnerability anti-wind activists are targeting elsewhere: the administration’s species protection efforts.

Eagles and wind turbines in Wyoming.
Heatmap Illustration/Getty Images

Wildlife conservationists in Wyoming are asking the Trump administration to block wind projects in their state in the name of protecting eagles from turbine blades.

The Albany County Conservancy, a Wyoming wildlife advocacy group, sent letters on February 11 and 18 to Interior Secretary Doug Burgum, Energy Secretary Chris Wright, and Attorney General Pam Bondi. In the letters, which I obtained, the group asked the Trump officials to do everything in their power to halt Repsol’s Rail Tie and BluEarth’s Two Rivers wind projects, including suspending Two Rivers’ right-of-way from the Bureau of Land Management and even the interconnection grant for Rail Tie’s transmission line.

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A Hail Mary Kansas Lawsuit Against the IRA

And more of the week’s top conflicts around renewable energy.

A Hail Mary Kansas Lawsuit Against the IRA
  1. Jackson County, Kansas — We’ve been covering anti-renewable lawsuits in the Trump 2.0 era closely at The Fight. But we now have a champion for the most aggressive lawsuit yet: a case filed against a single solar project intended to somehow kill … the entire Inflation Reduction Act?
    1. Three Kansas residents have gotten the support of five seasoned attorneys — including two Federalist Society alums — to sue the federal government claiming that projects benefiting from IRA tax credits should have to be reviewed under the National Environmental Policy Act, and that implementation of the IRA violated the Administrative Procedures Act.
    2. Their lawsuit, which was filed days before Trump took office, cites a single NextEra project in Kansas to make its claims of tangible damages.
    3. We asked the attorneys to comment on the lawsuit, as we’re wondering if this is an opening salvo before a broader legal effort to challenge IRA implementation.
    4. It’s worth saying this is obviously a huge ask of the administration, even in the Trump era. Not to mention it’s unclear how this legal complaint will fare with Trump’s decision to knock down NEPA implementing regulations (more on that in our Policy Watch section). But at a minimum, this is a noteworthy and novel attempt at what some may argue is a nuisance lawsuit — and indicates how conservative legal experts are finding common cause with disgruntled neighbors of renewables projects.
  2. St. James Parish, Louisiana — A state judge ruled this week that St. James Parish lawfully rejected what is believed to be one of the state’s largest solar projects.
    1. The Parish Council last year denied D.E. Shaw Renewables’ St. James Solar Energy Center which was supposed to connect to an Entergy substation as part of that utility’s solar and wind project pipeline.
    2. The rejection however came after years of local resistance to the project. D.E. Shaw took them to court after the most recent denial. But now they’ve lost, with a state judge ruling this week that they’ve failed to prove the council had good reason to say no.
    3. It’s a potential bad omen for Entergy’s efforts to complete the largest renewables expansion in state history.
  3. Alaska — We’ve never talked about Alaska here at The Fight but it’s time to do so, because renewables projects are having trouble up North.
    1. Renewable IPP is pulling the plug on a large solar project in Nikiski, a village southwest of Anchorage, citing uncertainty around federal funding and tax credits.
    2. The remote city of Kotzebue is trying to develop wind turbines to move its grid off of fossil fuels. But its money is tied up in the Trump funding freeze.
    3. Why am I watching this so closely? Alaska Governor Mike Dunleavy is quietly pro renewables. Its broader effort to use “all of the above” to market his state’s relevance in energy markets and its minerals tied to the energy transition.

Here’s what else I’m watching …

In Massachusetts, anti-wind activist Mary Chalke is running for a seat on the select board for the town of Nantucket. She’s well known for wearing a whale costume to protests.

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Policy Watch

What Trump’s NEPA Wrecking Ball Means for Renewables

And more of the week’s top policy news.

Environmental review, mapped.
Heatmap Illustration/Getty Images

1. New NEPA world – The Trump White House overnight effectively rescinded all implementing rules for the National Environmental Policy Act, a key statute long relied on by regulators for permitting large energy and infrastructure projects.

  • What does this mean for renewables developers? Earthjustice attorney Kristen Boyles told me today that even though fewer regulations sounds nice, Trump’s implementation strategy is unlikely to ease minds on renewables permits.
  • A big reason is confusion. Litigation that anti-renewables advocates filed against Biden’s permits will be considered under the previous NEPA regulations, while Boyles expects regulators to use a new attempt at NEPA implementation in an uneven way that privileges fossil fuels projects.
  • An example is “cumulative impacts,” a term historically used by agencies to look at comprehensive environmental impacts under NEPA. Previous challenges to the cumulative impacts of renewables projects will continue; meanwhile, the new Trump memo scrapped the definition of the term and dissuaded agencies from using it. What Boyles told me is this will simply put more discretion at the hands of political officials in permitting agencies.
  • “When you get rid of the definition, you’re going to still have a fight,” she said. “You now no longer have that common basis of understanding of what is a definition.”
  • When I first asked Boyles to tell me what comes next, she started hysterically laughing: “I’m not laughing because it’s a bad question. I think it’s a question that everybody’s asking.”
  • Heatmap’s Katie Brigham has a deeper dive on the Trump rule withdrawal here.

2. Our hydrogen hero – Senate Environment and Public Works Chair Shelley Moore Capito this week came out against any freeze for a hydrogen hub with projects in her state, indicating that any clampdown on H2 projects from the federal level may get Republican pushback.

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