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Morten Lund

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Morten Lund is a partner in Stoel Rives' Energy Development group. He serves as chair of the Energy Storage Initiative and is the former chair of the Solar Energy Initiative. Morten's experience includes development and financing of a broad variety of energy and infrastructure projects. His project experience background covers the full lifecycle of infrastructure projects, from early-stage development through construction, financing, and acquisition/divestiture. He has worked on wind and solar energy projects, energy storage projects, combustion generator projects, nuclear energy facilities, hydro-electric facilities, cogeneration facilities, chemical facilities, forestry/paper facilities, large aircraft, and shipping fleets. Morten also represents companies developing infrastructure technology, including water treatment technology, solar energy technology, and wind energy technology.

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On June 1, 2018, only two days after the completion of 12th SNEC International Photovoltaic Power Generation Conference, the world’s biggest solar conference and a central gathering of all the Chinese PV manufacturers, the Chinese central government announced a nation-wide solar subsidy cut that resulted in the Chinese solar stocks tumbling with the falling range from 7% to 31%.[1]  Specifically, the National Development and Reform Commission, the Ministry of Finance and the National Energy Administration of China issued the “2018 Solar PV Generation Notice” (the “Notice”)[2], imposing caps and reducing the feed-in tariff (“FiT”) mechanism in connection with China’s domestic PV projects[3], and at the same time setting rules at the central government level to urge marketization of China’s solar industry.[4]

Overview of the Notice

Imposition of Project Cap

Firstly, the Notice imposed a 10 GW cap on capacity for distributed generation projects and stopped utility-scale project for 2018. This is a steep drop from last year’s installation of 19 GW distributed generation projects (out of 53 GW of all PV projects in China).[5] Also, the Notice provided that only those distributed generation projects that are connected to the grid no later than May 31, 2018 would be covered by central government’s budget, whereas the financial responsibility for other distributed generation projects would be shifted to local governments.[6]  In addition, the Notice encouraged the local governments to come up with more solar supportive policies, to reduce non-technological costs, and as a result to reduce the needs for central and local governments’ solar subsidies.[7]  Separately, the Notice abolished the utility-scale projects and instructed local governments not to approve any utility-scale projects until central government’s further notice.[8]
Continue Reading China’s Renewable Policy Shift and its Global Implications

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