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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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Conservationists in Wyoming zero in on a vulnerability anti-wind activists are targeting elsewhere: the administration’s species protection efforts.
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.
These letters show for the first time that onshore wind projects are dealing with the same Trump-centric back-channelling influence campaigns we reported advocates and attorneys are waging in the offshore wind permitting space. The letters make some big requests. But the Conservancy is playing the chess game well, zeroing in on a vulnerability other wind opponents are also targeting: the administration’s species protection efforts.
Wyoming is crucial to the survival of golden eagles, a raptor bird species protected under multiple federal laws, including a 1940 conservation statute for golden as well as bald eagles. The state is home to what conservationists say is one of the largest breeding populations for golden eagles. But the species is struggling, with most recorded golden eagle deaths caused by humans. Some of these deaths have been tied directly to wind turbines.
The Rail Tie and Two Rivers projects concern Mike Lockhart, an ex-biologist for the Fish and Wildlife Service with a specialty in eagle conservation. For years Lockhart, who lives in the area and is a plaintiff in the lawsuit, has studied how the wind industry has impacted golden eagles and believes the government severely undercounts how many birds are being hurt by turbine blades.
In order to build in areas with golden eagles, developers need so-called “incidental take” authorizations, e.g. approvals to disturb or accidentally harm the species throughout the course of construction or operation of a wind project. He told me that data he and the Conservancy submitted to regulators shows that golden eagles will die if these wind farms turn on. “I’m a big renewable energy advocate,” he said. “I’m also horrified by what I’m seeing in Wyoming. We really didn’t understand the full scope of what these three-bladed wind turbines mean.”
It’s worth noting that renewable energy industry groups deny wind energy is playing a role in the size of the golden eagle population.
The Interior Department, which oversees the Bureau of Land Management and the incidental take process, declined to comment on the requests. So did BluEarth. Repsol said it was unable to provide a comment by press time.
On his first day in office, President Trump issued an executive order that halted new federal approvals for U.S. wind projects, pending a comprehensive review of the government’s past treatment of the wind industry, including its efforts to protect birds from turbines. Trump’s order claimed there were “various alleged legal deficiencies underlying the federal government’s leasing and permitting of onshore and offshore wind projects, the consequences of which may lead to grave harm – including negative impacts on navigational safety interests, transportation interests, national security interests, commercial interests, and marine mammals.” It also claimed there were “potential inadequacies in various environmental reviews” for wind projects. And indeed, a 2023 Associated Press investigation found federal enforcement in eagle protection laws declined under the Trump 1.0 and Biden administrations, even as wind energy blossomed in the species’ habitat.
As we reported last week, opponents of offshore wind have joined hands with well-connected figures in the conservative legal space to lobby Trump’s team to revoke incidental take authorizations previously issued to offshore wind projects. Doing so would rattle all offshore wind development as well as raise concerns about scientific independence at the issuing agency, the National Oceanic and Atmospheric Administration.
As with offshore wind and whales, Wyoming and its eagles offer Trump a situation he wants. In this case, it’s an opportunity to look tough on crime while attacking wind. A Trumpian disruption of the state’s wind sector would also create high profile controversy around what has otherwise been a success story for wind energy growth in a GOP stronghold state.
The Conservancy is represented by William Eubanks, a veteran public interest environmental lawyer who sent the letters on the group’s behalf. Prior to sending the letter, they were already in litigation over Rail Tie’s take approvals and the government permits that followed, providing a potential avenue for regulatory and permitting changes through legal settlement. The Conservancy also warned the Trump team that another lawsuit over Two Rivers could soon be in the offing. One letter stated that officials’ time “would be better spent reevaluating” the project to “ensure compliance with federal law (and President Trump’s Executive Order on wind projects), rather than in federal court.”
Eubanks — who has dedicated his life to fighting various potential industrial impacts to the environment, including fossil fuel pollution — told me that cases against renewable projects are a “really small part” of his firm’s “overall docket.” Eubanks told me he believes climate change must be addressed quickly. “It’s a serious issue, it is here, it is looming, and we need to do something about it,” he said. And he thinks that the nation needs to construct more renewable energy.
Yet Eubanks also says these two wind projects are a perfect example of a “rush through these processes” to get “the green light as soon as possible.” In his view, it’s the same way he’s treated oil and gas projects when fossil-friendly presidents put their own thumbs on the scale.
“We’re not just looking at this as, it’s a solar project or a wind project that gets some sort of ‘green pass,’” Eubanks added. “There’s a difference of opinion in the conservation community … a black or white thinking approach of, if something is a renewable energy project — no matter how poorly sited it is, no matter who poorly analyzed if at all it has been under environmental law — there are some conservation groups who, for better or worse, will just say, we’re not going to get involved in commenting on that or going the extra step of challenging it in court because we have to address the issue of our time: climate change.”
Lockhart told me he knows that the Trump administration is undercutting climate action with its anti-wind position. And he doesn’t like that. “I’m a supporter of green energy and want to do everything possible to reverse climate change,” he told me.
But he sees a silver lining in Trump potentially intervening. “I’m hoping it makes agencies go back and focus on what’s really going on, all the cumulative impacts and everything else.”
And more of the week’s top conflicts around renewable energy.
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.
In North Carolina, local pro-wind advocates hope Duke Energy’s land-based wind projects will be safe from the Trump administration.
In Washington State, Whitman County has imposed a wind moratorium.
In Virginia, Apex Clean Energy’s Rocky Forge solar project has survived a legal challenge.
And more of the week’s top policy news.
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.
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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