The U.S. International Trade Commission (ITC) voted unanimously on September 22, 2017, for an affirmative determination of injury to U.S. producers of crystalline silicon photovoltaic (CSPV) products, such as solar cells, modules and panels, from increased imports of those products into the U.S. market.  The vote concludes the “injury phase” of the investigation which began on May 17 with the acceptance of a petition for relief from imported CSPV products filed by solar manufacturer Suniva, Inc. (later joined by SolarWorld Americas, Inc.) pursuant to Sections 201-202 of the Trade Act of 1974.  As we reported in an earlier blog post, the ITC held a public injury-phase hearing on August 15, 2017, in which the Commissioners heard testimony and received statements and briefs from petitioners and their supporters and opponents of the petition.  Meanwhile, ITC staff was busy summarizing and analyzing data collected during the investigation, which efforts produced an injury phase report (Staff Report) that runs more than 500 pages.  Here are five key things reflected in the September 22 vote.

1.  The ITC’s Vote Was Directed Toward 13 Existing U.S. Producers – The ITC collected data from the five-year period from 2012 through 2016 and identified 13 operating domestic producers of CSPV cells, including petitioners Suniva and SolarWorld.  The Staff Report noted that three domestic producers, tenKsolar,  Motech and Silicon Energy, had ceased operations during the period.  The Staff Report stated that these 16 (13+3) producers accounted for 100% of domestic CSPV cell production, and 63.9% of domestic CSPV module production during 2015. (See Report pages I-53 to I-55) The remaining domestic module production was contributed from various assembly operations and excluded modules made from imported CSPV cells. (See Report page III-33) U.S. producers are defined as companies with production facilities in the U.S. territory; foreign ownership or control, financial solvency and volume of production are irrelevant for defining U.S. producers under the statutory language.  Further, other industry players are irrelevant to the injury analysis, including investors, utilities, state and local interests, installers and those employed in these downstream and supporting sectors.  Only domestic producers and those directly working for them are protected parties in the injury phase.

2.  Statutory Language Matters – ITC trade investigations are not subject to creative statutory interpretation. The Commission reads and follows the relevant statutory language.  Here, the statute is straightforward.  The ITC mandate is to investigate “whether an article is being imported into the United States in such increased quantities as to be a substantial cause of serious injury, or the threat thereof, to the domestic industry producing an article like or directly competitive with the imported article.”  The statute further defines domestic industry as “the producers as a whole of the like or directly competitive article or those producers whose collective production of the like or directly competitive article constitutes a major proportion of the total domestic production of such article.”  The “article” is the merchandise defined in the petition and deemed to be the scope of the investigation, which was published in the ITC’s notice of initiation of the Section 201 investigation on June 1 (82 FR 25333 2017).  A “substantial cause” is “a cause which is important and not less than any other cause.”  Finally, “serious injury” is “a significant overall impairment in the position of a domestic industry.”   Unlike some statutes with general or undefined language that allows a court or agency significant room for interpretation, Congress provided specific guidance to ITC in this one.  The Commissioners have little room for creative interpretation.
Continue Reading 5 Things Reflected in the ITC’s Suniva Injury-Phase Vote and What Comes Next

As we approach the critical September 22  vote of the U.S. International Trade Commission (ITC) for the U.S. solar industry, here is a brief review of how we arrived at this point and what to expect.  This vote will constitute the injury determination in the ITC global safeguard investigation into the effect of imported crystalline silicon photovoltaic (CSPV) products on the U.S. domestic solar manufacturing industry.

Overview

As reported widely in the solar industry press, on August 15, 2017, the ITC in Washington D.C. conducted a public hearing for the injury phase of the trade investigation (Inv. No. 201-075) into CSPV product imports.  The hearing generated more than 400 pages of hearing transcript and thousands of pages of briefing materials and statements submitted both in support and in opposition of the need for trade protection remedies to  support the U.S. domestic solar manufacturing industry.  A public version of some hearing testimony is available here.  The stakes are high.  This investigation could lead to  increased tariffs, quotas, or both, against all U.S. imports globally of CSPV cells whether or not partially or fully assembled into other products. CSPV cells are the most common form of raw power-generating material used in solar panels.  This investigation is being conducted pursuant to U.S. trade statutes and U.S. obligations under the World Trade Organization (WTO) terms of the Agreement on Safeguards.
Continue Reading ITC Prepares to Vote on the Suniva/SolarWorld proceeding re Crystalline Silicon Photovoltaic Cells

In Paris over the weekend nearly 190 countries reached a landmark international agreement on climate change. My friend Gerard Wynn of GWG Energy has written an excellent explainer on exactly what was agreed to. Gerard has kindly agreed to let us share his post with Renewable + Law blog readers. His post follows below.

[Originally published on the Carbon & Climate Change Blog]

The world concluded four years of negotiations on Saturday with the first universal agreement on climate change. Nearly 190 countries pledged national climate action, and all countries agreed a global long-term goal to phase out greenhouse gas emissions this century, suggesting a turning point in the use of fossil fuels.

The Paris outcome has two parts.

1. A 12-page “Paris Agreement”, which sets out new commitments for climate action beyond 2020, and potentially through this century.
2. A 20-page “Decision”, which describes what countries have to do before the Agreement enters into force in 2020.

Following is an attempt to decipher what all the wonky language means.Continue Reading Guest Post: Decoding the Paris Climate Agreement

On October 1, 2014, Víctor Osorio, Chile’s Minister of Natural Resources, announced that 200 public land concessions were being made available, through a cooperation agreement with the Ministry of Energy, to Non-Conventional Renewable Energy (NCRE) projects.  The goal of the program is to use the public lands concessions to facilitate the growth of NCRE’s, all

Earlier this year, a group of Stoel Rives attorneys traveled to Mexico to assess existing opportunities and pending developments in the Mexican power markets.  Some of the reforms and key trends identified during that trip are now taking shape. See also my blog post “Let the Market Decide: The Third Wave of Energy Investment in Latin America and Caribbean.”

Our work in Mexico included meetings with existing clients, senior partners of a major Mexican law firm, a briefing with a senior Mexican policymaker regarding implementation of the reforms and attendance at the Mexican International Renewable Energy Conference.  Here are some key “take-aways” from these meetings:

  • A Mexican renewable energy market has been successfully launched, with more wind than solar developed to date.
  • A package of “secondary” laws implementing Mexico’s energy reform legislation are pending in the Mexican Congress.
  • The secondary laws will include some form of renewable portfolio standard (e.g., 30% by 2024) that relies on (among other elements) renewable energy certificates.
  • The secondary laws are also expected to launch a wholesale electricity market, a demand response market and other provisions designed to encourage distributed generation.
  • Solar module manufacturers and other stakeholders are concerned about the government’s decision to apply a 15% import tax on electrical “generators” to non-NAFTA solar modules. 

Continue Reading Businesses and Policymakers Confirm Mexican Energy Reforms Are Gaining Momentum

I recently moderated an ABA/ACORE webinar focused on cross-border renewable energy development in Latin America and the Caribbean. To introduce the topic, I recounted a recent experience at an on-the-record dinner hosted by David Bradley, publisher of The Atlantic Magazine. The dinner was sponsored by the global CEO of one of the largest energy companies in the world, and included a Pulitzer prize winner, a former Member of Congress and other prominent energy, government and media representatives.

What does this Washington vignette have to do with renewable energy in Latin America and the Caribbean? Quite simply, everything, because it goes to the fundamental challenges inherent in making good policy decisions without metrics that allow for "apples to apples" comparisons.

As you might expect, the dinner conversation focused on global energy. As the meal progressed, it became clear that most guests fell into one of three categories: those invested in traditional fossil fuel technologies; those invested in renewable energy technologies; and those who were either agnostic or insufficiently knowledgeable to choose a side.Continue Reading Let the Market Decide: The Third Wave of Energy Investment in Latin America and Caribbean