The Solar Industry and the Feds Bat Heads in Safeguard Appeal

The federal government and solar industry representatives faced off in Federal Circuit Court in early April, as the Biden administration tried to overturn a trade court ruling limiting presidential power to amend safeguard measures after they are in effect.

US Department of Justice Attorney Joshua E. Kurland argued that Congress’ 1998 amendment to the 1974 Trade Act’s safeguard statute allows the president to adjust measures according to need. He cited the amendment’s neutral language as evidence that it was specifically crafted to make the power available.

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Arguing against overturning the ruling, plaintiff Solar Energy Industries Association, urged the three-member US Court of Appeals panel to take the language at face value.

In 2020, former President Trump issued a proclamation extending safeguard tariffs on certain solar panels to include double-sided panels in response to an import strike. A US Court of International Trade had blocked the Office of the US Trade Representative two times from expanding the safeguard measures, prompting Trump’s action, which Judge Gary S. Katzmann blocked in November of 2021.

The Biden administration appealed, saying the omission of the double-sided panels was an “improvidently granted exclusion” from the safeguard duties. The government claimed that the provision allowing for “modification” of the duties was intended to give the president the ability to correct such errors.

The solar industry claimed that the proclamation did not meet clear statutory obligations for modifying safeguards.

The panel asked the solar industry attorney to present Federal Circuit precedent showing that the president misconstrued a statute, though the attorney could not produce such evidence.