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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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A chat with CleanCapital founder Jon Powers.
This week’s conversation is with Jon Powers, founder of the investment firm CleanCapital. I reached out to Powers because I wanted to get a better understanding of how renewable energy investments were shifting one year into the Trump administration. What followed was a candid, detailed look inside the thinking of how the big money in cleantech actually views Trump’s war on renewable energy permitting.
The following conversation was lightly edited for clarity.
Alright, so let’s start off with a big question: How do investors in clean energy view Trump’s permitting freeze?
So, let’s take a step back. Look at the trend over the last decade. The industry’s boomed, manufacturing jobs are happening, the labor force has grown, investments are coming.
We [Clean Capital] are backed by infrastructure life insurance money. It’s money that wasn’t in this market 10 years ago. It’s there because these are long-term infrastructure assets. They see the opportunity. What are they looking for? Certainty. If somebody takes your life insurance money, and they invest it, they want to know it’s going to be there in 20 years in case they need to pay it out. These are really great assets – they’re paying for electricity, the panels hold up, etcetera.
With investors, the more you can manage that risk, the more capital there is out there and the better cost of capital there is for the project. If I was taking high cost private equity money to fund a project, you have to pay for the equipment and the cost of the financing. The more you can bring down the cost of financing – which has happened over the last decade – the cheaper the power can be on the back-end. You can use cheaper money to build.
Once you get that type of capital, you need certainty. That certainty had developed. The election of President Trump threw that into a little bit of disarray. We’re seeing that being implemented today, and they’re doing everything they can to throw wrenches into the growth of what we’ve been doing. They passed the bill affecting the tax credits, and the work they’re doing on permitting to slow roll projects, all of that uncertainty is damaging the projects and more importantly costs everyone down the road by raising the cost of electricity, in turn making projects more expensive in the first place. It’s not a nice recipe for people buying electricity.
But in September, I went to the RE+ conference in California – I thought that was going to be a funeral march but it wasn’t. People were saying, Now we have to shift and adjust. This is a huge industry. How do we get those adjustments and move forward?
Investors looked at it the same way. Yes, how will things like permitting affect the timeline of getting to build? But the fundamentals of supply and demand haven’t changed and in fact are working more in favor of us than before, so we’re figuring out where to invest on that potential. Also, yes federal is key, but state permitting is crucial. When you’re talking about distributed generation going out of a facility next to a data center, or a Wal-Mart, or an Amazon warehouse, that demand very much still exists and projects are being built in that middle market today.
What you’re seeing is a recalibration of risk among investors to understand where we put our money today. And we’re seeing some international money pulling back, and it all comes back to that concept of certainty.
To what extent does the international money moving out of the U.S. have to do with what Trump has done to offshore wind? Is that trade policy? Help us understand why that is happening.
I think it’s not trade policy, per se. Maybe that’s happening on the technology side. But what I’m talking about is money going into infrastructure and assets – for a couple of years, we were one of the hottest places to invest.
Think about a European pension fund who is taking money from a country in Europe and wanting to invest it somewhere they’ll get their money back. That type of capital has definitely been re-evaluating where they’ll put their money, and parallel, some of the larger utility players are starting to re-evaluate or even back out of projects because they’re concerned about questions around large-scale utility solar development, specifically.
Taking a step back to something else you said about federal permitting not being as crucial as state permitting–
That’s about the size of the project. Huge utility projects may still need federal approvals for transmission.
Okay. But when it comes to the trendline on community relations and social conflict, are we seeing renewable energy permitting risk increase in the U.S.? Decrease? Stay the same?
That has less to do with the administration but more of a well-structured fossil fuel campaign. Anti-climate, very dark money. I am not an expert on where the money comes from, but folks have tried to map that out. Now you’re even seeing local communities pass stuff like no energy storage [ordinances].
What’s interesting is that in those communities, we as an industry are not really present providing facts to counter this. That’s very frustrating for folks. We’re seeing these pass and honestly asking, Who was there?
Is the federal permitting freeze impacting investment too?
Definitely.
It’s not like you put money into a project all at once, right? It happens in these chunks. Let’s say there’s 10 steps for investing in a project. A little bit of money at step one, more money at step two, and it gradually gets more until you build the project. The middle area – permitting, getting approval from utilities – is really critical to the investments. So you’re seeing a little bit of a pause in when and how we make investments, because we sometimes don’t know if we’ll make it to, say, step six.
I actually think we’ll see the most impact from this in data center costs.
Can you explain that a bit more for me?
Look at northern Virginia for a second. There wasn’t a lot of new electricity added to that market but you all of the sudden upped demand for electricity by 20 percent. We’re literally seeing today all these utilities putting in rate hikes for consumers because it is literally a supply-demand question. If you can’t build new supply, it's going to be consumers paying for it, and even if you could build a new natural gas plant – at minimum that will happen four-to-six years from now. So over the next four years, we’ll see costs go up.
We’re building projects today that we invested in two years ago. That policy landscape we invested in two years ago hasn’t changed from what we invested into. But the policy landscape then changed dramatically.
If you wipe out half of what was coming in, there’s nothing backfilling that.
Plus more on the week’s biggest renewables fights.
Shelby County, Indiana – A large data center was rejected late Wednesday southeast of Indianapolis, as the takedown of a major Google campus last year continues to reverberate in the area.
Dane County, Wisconsin – Heading northwest, the QTS data center in DeForest we’ve been tracking is broiling into a major conflict, after activists uncovered controversial emails between the village’s president and the company.
White Pine County, Nevada – The Trump administration is finally moving a little bit of renewable energy infrastructure through the permitting process. Or at least, that’s what it looks like.
Mineral County, Nevada – Meanwhile, the BLM actually did approve a solar project on federal lands while we were gone: the Libra energy facility in southwest Nevada.
Hancock County, Ohio – Ohio’s legal system appears friendly for solar development right now, as another utility-scale project’s permits were upheld by the state Supreme Court.
The offshore wind industry is using the law to fight back against the Trump administration.
It’s time for a big renewable energy legal update because Trump’s war on renewable energy projects will soon be decided in the courts.
A flurry of lawsuits were filed around the holidays after the Interior Department issued stop work orders against every offshore wind project under construction, citing a classified military analysis. By my count, at least three developers filed individual suits against these actions: Dominion Energy over the Coastal Virginia offshore wind project, Equinor over Empire Wind in New York, and Orsted over Revolution Wind (for the second time).
Each of these cases are moving on separate tracks before different district courts and the urgency is plain. I expect rulings in a matter of days, as developers have said in legal filings that further delays could jeopardize the completion of these projects due to vessel availability and narrow timelines for meeting power contracts with their respective state customers. In the most dire case, Equinor stated in its initial filing against the government that if the stop work order is implemented as written, it would “likely” result in the project being canceled. Revolution Wind faces similar risks, as I’ve previously detailed for Heatmap.
Meanwhile, around the same time these cases were filed, a separate lawsuit was dropped on the Interior Department from a group of regional renewable energy power associations, including Interwest Energy Alliance, which represents solar developers operating in the American Southwest – ground zero for Trump’s freeze on solar permits.
This lawsuit challenges Interior Secretary Doug Burgum’s secretarial orders requiring his approval for renewable energy decisions, the Army Corps of Engineers’ quiet pause on wetlands approvals, and the Fish and Wildlife Services’ ban on permitting eagle takes, as well as its refusal to let developers know if they require species consultations under the Endangered Species Act. The case argues that the administration is implementing federal land law “contrary to Congress’ intent” by “unlawfully picking winners and losers among energy sources,” and that these moves violate the Administrative Procedures Act.
I expect crucial action in this case imminently, too. On Thursday, these associations filed a motion declaring their intent to seek a preliminary injunction against the administration while the case is adjudicated because, as the filing states, the actions against the renewables sector are “currently costing the wind and solar industry billions of dollars.”
Now, a victory here wouldn’t be complete, since a favorable ruling would likely be appealed and the Trump administration has been reluctant to act on rulings they disagree with. Nevertheless, it would still be a big win for renewables companies frozen by federal bureaucracy and ammo in any future legal or regulatory action around permit activity.
So far, Trump’s war on solar and wind has not really been tested by the courts, sans one positive ruling against his anti-wind Day One executive order. It’s easy in a vacuum to see these challenges and think, Wow, the industry is really fighting back! Maybe they can prevail? However I want to remind my readers that simply having the power of the federal government grants one the capacity to delay commercial construction activity under federal purview, no matter the legality. These matters can become whack-a-mole quite quickly.
Dominion Energy’s Coastal Virginia offshore wind project is one such example. Intrepid readers of The Fight may remember I was first to report the Trump administration might try to mess around with the permits previously issued for construction through litigation brought by anti-renewables activists, arguing the government did not adequately analyse potential impacts to endangered whales. Well, it appears we’re getting closer to an answer: In a Dec. 18 filing submitted in that lawsuit, Justice Department attorneys said they have been “advised” that the Interior Department is now considering whether to revoke permits for the project.
Dominion did not respond to a request for comment about this filing, but it is worth noting that the DOJ’s filing concedes Dominion is aware of this threat and “does not concede the propriety” of any review or revocation of the permits.
I don’t believe this alone would kill Coastal Virginia given the project is so far along in construction. But I expect a death by a thousand cuts strategy from the Trump team against renewable energy projects writ large, regardless of who wins these cases.