The fate of the entire U.S. solar industry could hinge on the whims of one small company in California. If the tariffs being demanded by San Jose–based panel manufacturer Auxin Solar are enacted, it could bring the fast-growing, multibillion-dollar solar sector to a screeching halt. 

Earlier this year, Auxin Solar submitted a petition to the U.S. Department of Commerce alleging that Chinese companies are dodging the U.S. tariffs initially imposed by the Obama administration on Chinese and Taiwanese solar cells and modules by building them in Cambodia, Malaysia, Thailand and Vietnam while still using Chinese-built polysilicon wafers and other materials, as well as Chinese intellectual property. In late March, the U.S. Department of Commerce began an investigation into the companies for circumvention of anti-dumping and countervailing duties — and the impact is already causing shockwaves across the solar supply and customer chain.

Mamun Rashid, co-founder and CEO of Auxin Solar, said in an email: ​“For years, Chinese solar producers have refused to fairly price their products in the U.S. and have gone to significant lengths to continue undercutting American manufacturers and workers by establishing circumventing operations in countries not covered by those duties.” 

But the U.S. solar industry relies heavily on those imports to operate, and the majority of industry players in the U.S. and around the world have taken a strong stance against the tariffs.

Solar project developer Ty Daul, CEO of Primergy, said on LinkedIn that ​“attempts to impose frivolous tariffs on solar manufacturers in Malaysia, Thailand, Cambodia and Vietnam are self-serving and narrow-minded, propped up under the guise of international labor concerns.” 

Chinese solar manufacturer Trina Solar took to Twitter, saying: ​“In just one week, the Biden admin’s tariff case has stopped solar panel supply in the U.S. The industry urges [the Commerce Department] to end this disastrous investigation before its [clean energy] agenda is put out of reach.” 

Solar Energy Industries Association CEO Abby Hopper said in a statement that the investigation has unleashed an ​“existential crisis” in the U.S. solar industry. 

The frenzied growth of solar power is a pillar of the U.S. carbon-reduction plan, but now the market’s near-term existence is being threatened by the actions of one lone company. Since more than 90 percent of the world’s solar panels are built in Asia, ​“We can’t battle climate change without imports,” as Matthew Nicely, a partner at lobbying firm Akin Gump, said in testimony before the U.S. Trade Representative in January 2022.

What is Auxin Solar, and who are the people behind the petition?

Auxin Solar is a minority- and woman-owned manufacturer of solar panels founded in 2008. Sherry Tai is co-founder, along with Mamun Rashid. Its 100,000-square-foot facility hosts 150 megawatts of annual manufacturing capacity. (By comparison, major Chinese solar factories have module production capacities in the 5- to 50-gigawatt range.)

I wanted to get a firsthand look at the company wreaking havoc on the U.S. solar industry, so I stopped by the factory site in San Jose a couple of times over the course of several weekdays. I counted 12 to 20 cars in the parking lot of the rundown industrial building. The loading dock was overgrown with weeds, and a stack of weathered wooden pallets sat at the far end of the lot. 

According to the company’s public relations representative, Auxin has a staff of 35 employees. Online estimates put the company’s annual revenue at around $9.7 million.

This relatively minuscule scale and capacity put Auxin firmly in the category of artisanal solar boutique — not even a minor player when it comes to utility-scale solar, which makes up 75 percent of the U.S. market. As SEIA’s Hopper said, ​“No domestic supplier [with only]…150 megawatts of capacity to make bifacial solar panels would even be allowed to bid on a utility project.” 

But current U.S. trade law process allows a $10 million, 150-megawatt-capacity company like Auxin to shut down a $10 billion, 20-gigawatt solar industry just by submitting a basic petition — and ostensibly in the interest of fostering a homegrown solar manufacturing industry. 

Do tariffs even work? 

Historically, import tariffs have been a blunt instrument with a track record littered with unintended consequences. Trump-era tariffs on Chinese modules (which the Biden administration opted to extend) have contributed to the U.S. having some of the world’s highest utility-scale solar costs.

The Council on Foreign Relations has this to say on the efficacy of tariffs: 

“Since the end of World War II, tariffs have largely fallen out of favor in developed economies because they often lead to reduced trade, higher prices for consumers, and retaliation from abroad. […] Most economists find that the bulk of tariff costs are passed on to consumers.”

The Brookings Institute has published similar findings showing that the cost of tariffs historically have been shouldered by ​“American households and American firms, not foreign exporters.”

But Rhone Resch, president and chief revenue officer of stealth startup Solarlytics and former head of SEIA, told pv magazine last August that the Biden administration may keep the Trump-era tariffs in place as both a show of support for domestic manufacturing and a way to flex its muscles when it comes to competing with China. ​“The [labor] unions want this, and it gives domestic protection,” Resch said.

Rebuilding a domestic solar industry

With or without tariffs, the U.S. solar industry is unlikely to regain its production mojo anytime soon.

As Canary Media has previously reported, U.S. solar manufacturers have largely lost out to China in the race for global market domination. Wood Mackenzie’s latest findings indicate that the U.S. currently has a meager 7.5 gigawatts of PV module production out of a global capacity of nearly 400 gigawatts.

Some U.S. policymakers are trying to advance legislation implementing subsidies that could spur domestic solar manufacturing and tap its power as a potential jobs engine. The Solar Energy Manufacturing for America Act, introduced last year by Senator Jon Ossoff (D) of Georgia, would create a generous tax credit for domestic solar production at all steps of the solar module supply chain to bring some of that offshore manufacturing back onshore. 

However, Clean Energy Associates policy analyst Christian Roselund noted in an interview that current U.S. production is simply not sufficient to meet market demand. ​“It’s nowhere close. Even under the best-case scenario, it will take many years to develop the capacity to meet our demand,” he said. ​“Even with Ossoff’s Solar Energy Manufacturing for America Act in place, it’s still going to take a number of years.” 

Roselund added, ​“I’m not sure that policymakers fully understand exactly what would be required to rebuild solar value chains in the United States, particularly at the wafer and cell level. We’re just not going to be able to replace this with domestic manufacturing anytime soon.”

Roselund also pointed out that China has much better proximity to supply chains, skilled labor and manufacturing clusters. ​“We had an ecosystem for that in the United States, but that has been hollowed out over the last decade.”

“Previous rounds of tariffs did little to spur any new U.S. manufacturing,” he said. ​“We saw a few factories relocate…but overall, [domestic] modules still make up a small fraction of total U.S. solar deployments.”

The political landscape

Two U.S. senators from Ohio, Sen. Rob Portman (R) and Sen. Sherrod Brown (D), have thrown their support behind Auxin’s petition. Ohio is, not coincidentally, home to First Solar, the largest U.S. manufacturer of solar panels and a thin-film solar technology leader that has benefited from the tariffs enacted during the Trump administration.

However, a different bipartisan coalition of U.S. senators is opposed to more tariffs and is urging the Commerce Department to reconsider its decision to investigate Auxin’s petition. A March letter to the department signed by 14 U.S. senators contends that ​“the tariffs would have a direct impact on the almost 90% of solar jobs in the United States that are not in the manufacturing sector.”

Crisis or case dismissed?

Which of the contradictory aims of Biden’s Commerce Department will prevail? The one that wants to help realize Biden’s target of transitioning the nation’s electrical grid to 100 percent renewable power by 2035? Or the one that has continued to roil the market with tariffs that increase the price of solar and electricity to the consumer, hindering the country’s energy transition?

Just the looming threat of tariffs has already caused severe fallout. Since the Commerce Department investigation began, anecdotal reports suggest that solar power-purchase agreement prices are on the rise and larger developers with a higher level of risk tolerance are now taking on the lion’s share of new projects.

As reported in E&E News, Auxin warned Commerce that its petition had triggered a rush to import and stockpile solar panels and cells made in the four named Asian countries, so the company wants to see the Commerce apply tariffs retroactively. This has already prompted many Asian manufacturers to halt shipments to the U.S.

And the few remaining American manufacturers of crystalline-silicon solar modules are feeling immediate harm since these firms are dependent on imports of silicon solar cells and other components.

Analyst firm Raymond James predicts that the case will not be upheld. ​“Above and beyond the merits of the individual case,” the firm’s industry brief states, ​“it would be mind-boggling for the Biden administration to impose severe tariffs on 75% of the modules being installed in the U.S. without considering the impact on the market.” 

The Department of Commerce will present the investigation’s preliminary findings on August 30, 2022, when it publishes a preliminary duty rate for importers of all products. This will serve as the basis for deposits until it issues a final decision on January 26, 2023.

The Solar Energy Industries Association does not want to wait that long. CEO Abby Hopper said in a statement, ​“We are calling on the Department of Commerce to immediately issue a negative determination, which essentially means to dismiss the case.” 

Scott Wiater, CEO of Standard Solar, agrees: ​“The [Commerce] Department has a choice now: move forward with a baseless petition that will result in massive job losses and set back our clean energy goals, or fix its mistake by immediately issuing a negative preliminary determination.”

If Commerce does persist with the investigation, Roselund said, ​“We’re going to see shipments stop overnight. We’re talking about freezing the largest sources of supply for the U.S. market. […] It’s going to be madness: Projects will be delayed; projects will be canceled; prices will go up.”

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Listen to Eric Wesoff discuss this article and the Auxin Solar trade case on The Carbon Copy podcast:

Canary Media’s chart of the week translates crucial data about the clean energy transition into a visual format. Canary thanks Natural Power for its support of this feature.

Employment in the U.S. solar sector stems overwhelmingly from the multibillion-dollar business of deploying and installing photovoltaic hardware, not from its manufacture.

Domestic solar manufacturing is a hot topic right now thanks to Auxin Solar, a tiny California-based maker of solar panels. Auxin contends that unfair international competition is hurting its business, and it convinced the U.S. Department of Commerce to take up its case and consider whether new tariffs should be imposed on panel manufacturers in Southeast Asia.

Plenty of others also share an interest in reestablishing solar manufacturing on American soil, including the Biden administration, Senator Jon Ossoff (D-GA) and two larger companies that are now building or expanding solar-panel factories in the U.S.: Hanwha Q Cells and First Solar.

But as of 2020, only 14 percent of U.S. solar workers were employed in manufacturing — and that figure includes employees building auxiliary equipment such as racking, cables and other components, so the percentage involved in the manufacture of actual panels was even smaller. A far larger share of the solar workforce — 67 percent — works in solar installation and development, according to the most recent National Solar Jobs Census.

If you’re a part of the U.S. solar industry, you know that there’s never been a more promising and more confoundingly frustrating time in this renewable energy segment. Despite hitting record-breaking solar installation marks in 2020 and 2021, the sector’s workforce contracted in 2020 due to pandemic-induced global supply-chain issues. Now, faced with not only the Auxin tariff threat but also other trade issues, including the continuation of tariffs from the Obama and Trump eras and the Uyghur Forced Labor Prevention Act, the solar industry is on its heels and facing its first significant down year.

The U.S. solar industry employed 231,474 workers in 2020, a drop of 6.7 percent from the year prior and its lowest level since 2015. (As a point of comparison, the coal mining industry employed 42,117 Americans in 2020.) Solar manufacturing employment fell even further, down 9.3 percent from 2019 to 2020, landing at a total of 31,050 workers. 

These numbers are a clear testament to the fact that the United States has had a thriving solar installation sector, rather than a thriving solar manufacturing sector. The industry was able to achieve its record-breaking deployment totals despite reduced employment in recent years, and this was due in part to a rapid increase in the share of utility-scale deployment. Utility-scale installations represented 73 percent of all solar capacity installed in the U.S. in 2020, a record. Utility-scale solar has a much lower level of labor intensity than distributed solar installation (residential, commercial and community solar). The latter category accounts for more than half of all industry employment in the U.S.

If Auxin achieves a Pyrrhic victory in its quest for new tariffs, the resulting job losses will occur most notably in distributed solar and utility-scale solar installation and project development. Significant job gains in U.S. solar manufacturing will take years to be realized — if they come at all. 

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Natural Power is a global consultancy that supports its clients to deliver a wide range of renewable energy projects. Its independent engineering experience covers all phases of the project lifecycle, from feasibility through construction to operations, and all stages of the transaction. Learn more.

The Biden administration is making incremental progress toward a goal Donald Trump never achieved: reinvigorating U.S. coal power.

On Wednesday, Indiana utility NIPSCO announced that it will not be able to complete several solar power plants on schedule, blaming market upheaval in the wake of the U.S. Commerce Department’s decision to investigate possible solar tariff violations. As a result, the utility will keep a coal plant open several years longer than it had planned.

The Commerce investigation has caused ​“uncertainty and delays” in the solar market, the utility explained in a note to investors. Solar power plants under construction that it had expected to be operational in 2022 and 2023 are falling behind by six to 18 months. To ensure reliable power in the interim, NIPSCO will run the Schahfer Generation Station’s two remaining coal-fired units through 2025 instead of closing them in 2023 as originally planned.

It’s a stunning turnaround for a utility that had been hailed as a vanguard for rapid adoption of clean energy in the Midwest. NIPSCO determined in 2018 that it could save billions for customers by switching from coal-burning plants to renewables, years ahead of many of its peers.

That’s exactly the kind of action the White House says it wants to see in order to reach its goal of eliminating carbon emissions from the power sector by 2035. But there’s a problem: Solar developers can’t get their hands on panels anymore — major manufacturers in Asia have stopped shipping them to the U.S. because they fear the Biden administration will slap retroactive tariffs of up to 250 percent on their products.

Auxin Solar, a marginal U.S. manufacturer with just 35 employees, filed the petition in February. The petition contends that, after the Obama administration imposed tariffs on Chinese and Taiwanese solar cells and modules, those manufacturers circumvented the policy by building factories in Cambodia, Malaysia, Thailand and Vietnam. The Commerce Department launched the requested investigation in April.

Expanding tariffs to those countries would hurt the vast majority of U.S. solar panel imports in the name of helping a largely nonexistent U.S. manufacturing base. 

The tariff petition won support from Ohio Senators Rob Portman (R) and Sherrod Brown (D). Their constituents include First Solar, based in Perrysburg, Ohio, the largest domestic panel manufacturer, which has already benefited from the tariffs constricting access to competing products.

But a broader bipartisan coalition of senators has taken a strong stance against the investigation. On May 1, 22 senators sent a letter to the Biden administration urging it to reject the retroactive tariffs and swiftly conclude its investigation. Without such action, solar installations this year are likely to fall precipitously.

“Left unaddressed, cutting off this supply of panels and cells also risks the loss of more than 100,000 American jobs, including approximately 18,000 manufacturing jobs,” the senators wrote.

Cutting off supplies of cheap solar power will also ​“needlessly” raise energy prices for consumers at a time when energy prices are already high, the letter states.

NIPSCO’s announcement delivers a concrete example of the tariff investigation’s escalating impacts.

“The solar projects were going to drive huge cost savings to customers,” Ben Inskeep, program director for consumer and environmental advocate Citizens Action Coalition of Indiana, noted on Twitter. ​“Now NIPSCO customers will have higher bills due to expensive coal prices and the delayed coal plant retirements.”

The Commerce Department is not planning to publish preliminary findings until August 30, with a final decision coming in January. If the department rejects calls for an expedited resolution, NIPSCO won’t be the last utility to suffer the consequences.

Auxin Solar, the tiny company whose trade petition is rattling the whole U.S. solar industry, produces solar panels of questionable quality in volumes that appear to be lower than claimed, sources tell Canary Media. 

Last week, I reported on how Auxin’s petition has triggered the U.S. Department of Commerce to consider imposing tariffs on solar panels imported from Cambodia, Malaysia, Thailand and Vietnam, based on claims that Chinese manufacturers are funneling their wares through those countries to evade existing tariffs. If Commerce sides with Auxin, that could kneecap the solar industry in this country, as I discussed in an episode of The Carbon Copy podcast last week. The U.S. installs vastly more panels than it manufactures, and about 80 percent of imported panels currently being deployed in U.S. projects come from those four Southeast Asian countries. 

Since publishing my initial article, I have spoken with a solar installer who has used Auxin panels, examined data on deployment of those panels in key U.S. markets, and again visited the site of Auxin’s sole factory, camera in hand. Here’s what I’ve learned about this little company that’s causing a big ruckus. 

Auxin panels exhibit burn marks and other defects

Northern California solar installer Barry Cinnamon of Cinnamon Energy Systems was previously an Auxin customer — but not a happy one. 

“They were our [original equipment] manufacturer at one point. Their quality was terrible,” he told Canary Media. There were ​“many module failures from their own manufacturing, and we were unable to get any warranty service. Broken glass, half output of panels, burn marks on the back. They sourced almost all of their components from overseas, some likely from China.”

Another solar installer reported similar complaints: ​“We are starting to get a couple of Auxin takedowns and reinstallations,” meaning the Auxin panels did not perform to expectations and had to be replaced. ​“We are also seeing some pretty heavy burn marks on the backs of the panels.”

Cinnamon shared photos of panels with burns visible on their backsheets. 

Canary Media’s chart of the week translates crucial data about the clean energy transition into a visual format. Canary thanks Natural Power for its support of this feature.

The actions of a tiny equipment supplier are leading to tens of gigawatts of solar power not being deployed in the U.S. The solar-panel manufacturer Auxin Solar filed a trade complaint earlier this year that triggered an investigation by the U.S. Commerce Department into whether tariffs should be imposed on solar modules imported from Cambodia, Malaysia, Thailand and Vietnam, which have been supplying about 80 percent of the solar panels installed in the U.S.

If such tariffs are levied, the amount of solar power capacity deployed in the U.S. this year and next could be slashed almost in half, the Solar Energy Industries Association estimates, based on a survey of solar and storage companies.

Research company Rystad Energy projects an even more dire impact. It warns that nearly two-thirds of planned U.S. solar capacity installations in 2022 are at risk because of the Auxin tariff case. Rystad had expected 27 gigawatts of solar capacity to be added in the U.S. this year, but now it’s projecting that could fall to 10 GW — which would be the smallest yearly total since 2019. 

Here’s the stark math of the trade case: The cost of solar modules, the primary component in utility-scale solar projects, could increase by about 43 percent if tariffs are imposed, according to calculations by David Riester of Segue Sustainable Infrastructure. He estimates that about 70 GW of solar projects in the U.S. could be killed by the Auxin tariffs over about the next three years — ​“a horrifying prospect,” according to Riester. 

Indeed, it’s a calamity for the solar sector, one of the bright spots in U.S. renewables — until now. The Solar Energy Industries Association estimates that more than 100,000 jobs could be lost if Auxin’s requested tariffs are imposed. 

The U.S. is absolutely dependent on cheap, imported solar panels to reach its decarbonization and electrification goals and does not have enough production capacity to come anywhere close to meeting domestic demand. What little silicon solar panel manufacturing does exist in the U.S. is also under threat from the tariff case because it depends almost entirely on photovoltaic cell imports from overseas.

The Commerce Department is expected to issue a preliminary judgment on the case in August and a final decision by January of next year. A number of U.S. senators, among others, are calling for it to move more quickly. 

“This could be the most disruptive event ever to face the U.S. solar industry,” said Marcelo Ortega, renewables analyst with Rystad Energy.

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Natural Power is a global consultancy that supports its clients to deliver a wide range of renewable energy projects. Its independent engineering experience covers all phases of the project lifecycle, from feasibility through construction to operations, and all stages of the transaction. Learn more.

The tariff circumvention inquiry that has brought U.S. solar installations to a shuddering halt is predicated at least in part on a misinterpretation of data, Canary Media has learned.

U.S. solar-panel manufacturer Auxin Solar relied heavily on research by BloombergNEF, a respected clean energy analysis firm, when it successfully petitioned the U.S. Commerce Department earlier this year to investigate potential circumvention of tariffs on solar cells and modules. Auxin cited BNEF solar-manufacturing research as it attempted to build a case that Chinese manufacturers are funneling components through factories in four Southeast Asian countries to get around U.S. solar import tariffs. It mentioned BNEF 38 times in its petition.

And the Commerce Department, in its March memo initiating the inquiry, repeatedly noted Auxin’s use of BNEF research to build the case for the inquiry. The memo mentions BNEF 19 times. 

The problem: The authors of that research say Auxin misinterpreted it.

“We do not think Auxin’s use of our data accurately reflects our research and certainly does not reflect our house view,” BNEF solar analysts Jenny Chase and Pol Lezcano told Canary Media in an email Tuesday. 

The Commerce Department states in its memo, ​“Auxin notes that it does not have access to the confidential data of producers of solar cells and modules in the third [party] countries under consideration,” meaning Cambodia, Malaysia, Thailand and Vietnam. In lieu of direct evidence to support its claims, Auxin provided ​“industry publications” to demonstrate that the solar-cell manufacturing underway in those four countries is minor relative to the production of precursor materials in China. 

Many of those ​“industry publications” were authored by BNEF. 

Chase and Lezcano highlighted one example of their research being misused. From the Commerce Department’s memo (curly brackets are in the original): 

Auxin also points to a statement in the BloombergNEF Report that ​“the majority of goods the U.S. imports {i.e., solar panels} arrive from Southeast Asia post assembly,” but ​“70% of the actual value of that equipment {solar panels} accrues to China where key, pre-assembly steps in the making of the equipment take place, including production of solar-grade silicon, ingots, wafers and cells.” 

The BNEF researchers told Canary Media that the 70% data point refers to the ​“cash cost” of the components making up finished solar panels. It does not include the investment in and depreciation of factories that produce solar cells and modules in the four countries in question, not to mention the general and administrative expenses of operating them. 

“It still costs a lot of upfront capex to build a new factory, regardless of where you site it,” Chase and Lezcano noted.

In other words, the value of raw ingredients and components produced in China does not change the fact that manufacturers invested significant capital to build factories in the four other Asian countries. Those factories take materials that are incapable of turning sunlight into electricity and transform them into finished products that are capable of doing so.

In order for the Commerce Department to determine that circumvention of tariffs is happening, it must find, among other things, that work taking place in a third-party country be only ​“minor or insignificant.” Auxin used BNEF’s research to try to make that point. But with BNEF stating that its research does not support that conclusion, Auxin’s case looks weaker. Still, Auxin did succeed in kicking off the inquiry, and now it’s up to the Commerce Department to decide if it finds the company’s theory persuasive.

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Read more of Canary Media’s coverage of the Auxin solar tariff case.

The Commerce Department’s solar tariff investigation is already leading to a huge dropoff in solar installations. So why is the White House letting it happen?

In February, boutique U.S. module manufacturer Auxin Solar petitioned the Commerce Department to investigate whether factories in Cambodia, Malaysia, Thailand and Vietnam are essentially pass-throughs for Chinese solar products, which would mean the manufacturers are circumventing the decade-old anti-dumping tariffs imposed by the U.S. Commerce decided in March that this claim merited a formal probe. 

If that probe concludes that circumvention is afoot, not only would future solar imports from those four countries be subject to new tariffs, but tariffs could be retroactively applied to panels imported as far back as November 2021. That government-induced pricing uncertainty has already brought the booming U.S. solar market to a jarring halt.

“The U.S. has become such a policy risk and a financial risk that manufacturers are going to other countries” to sell their wares, said Abby Hopper, CEO of the Solar Energy Industries Association, in an interview with Canary Media’s Political Climate podcast. ​“There are literally no panels to be had.” 

That’s terrible news for none other than President Biden, who wants to see the U.S. powered by 100% clean electricity by 2035. His landmark climate legislation stalled last year when fellow Democrat Joe Manchin, senator from West Virginia, refused to support it. Now Biden’s own Commerce Department is thwarting the growth of solar power plants, which had been expected to be the largest source of new power capacity installed this year.

But the trade lawyers at Commerce answer to a solemn duty, enshrined into law by Congress nearly a century ago, to fight for American workers when other countries don’t play fair. 

“Supporting U.S. workers and businesses to compete and win globally is at the core of Commerce’s mission,” a Commerce Department spokesperson told Canary Media. ​“American businesses are sharpened, not threatened, by competition, so long as that competition is not rigged through unfair practices that distort the free flow of goods.”

That conviction appears unmoved neither by the solar industry’s near-unanimous insistence that it doesn’t want this kind of support, nor by the nature of the U.S. solar industry, which employs far more people to develop and install solar projects than to manufacture cells and panels.

Here’s what the Biden administration can and can’t do about the solar tariff inquiry, and what comes next in this federal intervention in the solar market. 

Can Biden just cancel the solar tariff inquiry?

From the outside, it’s hard to imagine why Biden would sit back and let his own Commerce Department threaten the mass adoption of solar power, a pillar of his own climate strategy.

Yes, Biden has advocated for renewed American manufacturing, and Auxin is nominally pushing for the same. (Its litter-strewn factory could use some renewal, certainly.) Yes, Biden is interested in standing up to China, as demonstrated in his recent comments on defending Taiwan from military invasion. (Many of the solar manufacturers in Southeast Asia are offshoots of China’s industry, though the tariff inquiry affects others, such as South Korea’s Hanwha Q Cells.) 

But cutting off supply of imported solar panels when domestic production can’t fill the gap is no way to run industrial policy. Why not step in and quash the tariff probe?

Because that would conflict with the principles of bureaucratic independence and rule of law that are back in vogue in Biden’s Washington. Auxin filed a petition under terms laid out in the U.S. Tariff Act of 1930. The Commerce Department chose to heed the petition and initiate the investigation, so now it has to follow the rules for a tariff circumvention probe. 

“There’s a process; there’s a law. I have to implement the law,” Commerce Secretary Gina Raimondo said in Senate testimony earlier this month.

This process, by the way, is handled by career civil servants, not by political appointees charged with furthering the president’s agenda. These bureaucrats are required to issue a preliminary finding within 150 days of launching their investigation, meaning by late August in this case. 

“U.S. anti-dumping and countervailing duty laws are completely removed from political considerations,” the Department of Commerce spokesperson said. ​“This process is transparent, internationally accepted, and has been the law of the land since 1930.”

If the department were to cancel the inquiry or otherwise deviate from the procedures laid out in the law, it could expose itself to judicial review. Auxin or someone else could sue over the matter at the federal Court of International Trade. 

If challenged in court, Commerce would have to show it acted based on ​“substantial evidence” and ​“in accordance with law.” 

The Biden administration — both the Commerce Department and the White House — appear to believe that Biden cannot simply call off the inquiry, even if it counteracts his other policy goals. 

But some advocates of clean energy beg to differ. They argue that the Commerce Department does indeed have the statutory authority to call off the investigation.

“The language [of the Tariff Act] on its face provides tremendous discretion,” said Gregory Wetstone, CEO of the American Council on Renewable Energy, in an interview. ​“It seems like the Commerce Department is over and over again tying its own hands.”

ACORE requested that Commerce wield its statutory discretion in a May 20 letter, citing Canary Media reporting that the rationale for Auxin’s petition was based in part on data from BloombergNEF research that the researchers themselves said was mischaracterized.

“Commerce has express legal authority to rescind this inquiry immediately,” Wetstone wrote to Raimondo. ​“Where evidence is mischaracterized and misused to propel the agency into action, it is incumbent on the agency to stop such action as soon as the problem with the evidence comes to light.”

Canceling the probe is an appealing scenario for solar professionals who want to get back to business as usual. But if Commerce handled the process improperly, or even merely appeared to, it could draw out the period of uncertainty by sending the matter to court.

Can the administration speed up the tariff inquiry?

Solar trade groups report that every passing week under threat of potential future tariffs means more projects are delayed or canceled. Utilities are being forced to meet their needs without the energy produced by planned solar plants. For instance, Indiana utility Nipsco has decided to burn coal longer than it had intended to because it can’t complete its solar projects on schedule. 

If the investigation won’t be called off, the next best thing for the industry would be a speedy resolution.

That’s what Hopper is arguing for: wrapping up the inquiry immediately. ​“The secretary has the authority to end this case now,” Hopper said. ​“She can decide that there’s no circumvention happening, issue a preliminary negative finding, and then follow that up with a final determination.”

A bipartisan group of 22 U.S. senators requested the same in a letter dated May 2, and 85 of their House counterparts followed suit on May 17. 

And it’s well within the department’s purview to move expeditiously on its investigation. Senator Brian Schatz (D-Hawaii) extracted an acknowledgment of that point while questioning Raimondo recently.

Raimondo initially argued that bureaucratic rules prevented her from intervening personally in the quasi-judicial proceeding. But when Schatz cited the governing statute and asked if anything prevented the secretary from speeding up an investigation of national importance, she accepted the point.

“There is nothing that prevents us from going faster,” Raimondo said. ​“If we can do better than August, we certainly will.”

What comes next?

Auxin acknowledged in its petition that it doesn’t have any inside scoops on what’s happening in its competitors’ factories in Southeast Asia. Instead, it relied on public statements by other firms and general data points from industry publications.

Canary Media reported last week that the source cited numerous times in Auxin’s petition, energy research firm BloombergNEF, disagrees with the conclusions Auxin drew from the firm’s research. But the process for filing this kind of complaint does not require the petitioner to prove anything.

Since Commerce found Auxin’s narrative compelling enough, it’s now investigating with a special set of governmental powers. The department sent detailed questionnaires to manufacturers in each of the four countries named in the inquiry. Those companies wouldn’t need to respond if Auxin asked what they were up to, but when the U.S. government wants answers to decide whether or not to impose tariffs, it’s a different story.

Commerce will consider those responses and analyze the components that go into the companies’ solar cells and modules. Then it will decide if the work being done in the four countries is ​“minor or insignificant.” That’s a key threshold for determining if Chinese firms are using the factories to circumvent U.S. tariffs imposed on their home country or if the work is insignificant enough that tariffs are not warranted.

Auxin is a very lonely voice claiming that the Southeast Asian factories’ work is relatively minor. Almost everybody else in the U.S. solar industry argues that turning raw ingredients into finished products that can generate electricity is, by definition, major and significant work, which means it would not be considered circumvention under the Tariff Act.

Now Commerce Department lawyers will decide the fate of most of the U.S. solar panel supply based on wherever their technocratic process leads them. Commerce is not charged with actually jump-starting new American solar factories. It has the power to make foreign imports more expensive and to temporarily scare away imports due to pricing uncertainty. But actually increasing domestic supply to fill the gap is someone else’s job.

And Commerce seems intent on maintaining a narrow focus on the multipronged test for whether circumvention is taking place. The 1930 Tariff Act doesn’t mention how to weigh factors such as an urgent climate crisis or a U.S. industry that employs far more people to develop and install solar projects than to manufacture them.

As Wetstone quipped, ​“It’s puzzling that the Commerce Department isn’t looking at the impacts of its actions on commerce.”

The high-growth, multibillion-dollar U.S. solar industry is getting a two-year reprieve from an import tariff threat that has left it in limbo, courtesy of an executive decision from President Biden, according to news reports.

The threat to the industry started when Auxin Solar, a tiny California-based maker of solar panels, convinced the U.S. Department of Commerce to investigate whether new tariffs should be imposed on panel manufacturers in Southeast Asia for allegedly circumventing existing tariffs on Chinese solar companies. The threat of potential new tariffs, which could have been made retroactive, stopped the industry in its tracks and led to many projects being put on hold over the last few months.

But Biden will announce on Monday that no new tariffs will be imposed on solar imports for the next 24 months. According to a Reuters source, ​“There is going to be this safe-harbor timeout on the…collection of duties, and that’s at the heart of what’s going to save all of these solar projects and ensure that they are going forward.” 

Canary Media’s Julian Spector recently reported on the murky rules governing the Commerce Department’s investigation and the ability of the White House to intervene. Biden’s decision to pause the tariffs does not mark the end of the Commerce inquiry. But a source told Reuters that if tariffs are eventually imposed, they will not be retroactive.

Biden is also taking action to bolster and build up the U.S. solar manufacturing supply chain by invoking the Defense Production Act to drive domestic production of solar panels and other renewable energy technologies, with the help of loans and grants, Reuters reports.

“Devil in the details, but it looks like the president is finally starting to listen,” John Berger, CEO of solar installer Sunnova, told Canary Media.

The fast-expanding utility-scale solar industry in the U.S. is dependent on inexpensive imported solar panels. This decision by Biden will allow the supply chain to restart, but there’s still significant uncertainty in the sector, and project development companies with thin margins that depend on tax-equity financing don’t tolerate uncertainty well.

As of 2020, only 14 percent of U.S. solar workers were employed in manufacturing. A far larger share of the solar workforce — 67 percent — worked in solar installation and development, according to the most recent National Solar Jobs Census.

For now, the solar development and installation industry can get back to work. The U.S. solar manufacturing sector, however, will take much longer to rev up. But depending on what Biden announces on Monday and in the days after, it could get a much-needed boost.

When President Joe Biden intervened this week in the tariff battle roiling the U.S. solar industry, he did so in a typically Biden way. He tried to chart a middle path between opposing camps. 

Biden recognized that more needs to be done to help American solar manufacturers. They have struggled to compete with China, which buoyed its own manufacturers so much that the U.S. Commerce Department imposed tariffs on their output a decade ago. Biden laid out several executive actions Monday to ​“accelerate domestic production of clean energy technologies, including solar panel parts.”

At the same time, he gave solar developers and installers something they’d desperately sought: safe harbor (at least for the next two years) from potential duties on products from four Southeast Asian countries that supply some 80 percent of U.S. solar panel imports. 

Both sides’ interests got recognition in the executive action. But if, as Larry David says, a good compromise is when both parties are dissatisfied, this is something else. Developers and installers praised the outcome while the pro-tariff faction fumed.

Why Auxin and First Solar are upset

Not many clean energy companies or groups have publicly supported the Commerce Department’s investigation into potential tariff violations by solar manufacturers in Cambodia, Malaysia, Thailand and Vietnam. The inquiry was kicked off by a petition from Californian panel producer Auxin Solar — an unlikely figurehead given its relatively small scale of production and the quantity of abandoned refuse sitting in its parking lot. But First Solar, a large and successful U.S. manufacturer, has been on Auxin’s side. 

“By taking this unprecedented — and potentially illegal — action, [President Biden] has opened the door wide for Chinese-funded special interests to defeat the fair application of U.S. trade law,” Auxin CEO Mamun Rashid said in an emailed statement.

First Solar did not respond to a request for comment, but in a statement circulated to the press, it accused Biden of acting without consulting American solar manufacturers.

“Such a proclamation directly undermines American solar manufacturing by giving unfettered access to China’s state-subsidized solar companies for the next two years,” Samantha Sloan, First Solar’s vice president of global policy, said in the statement. ​“It sends the message that companies can circumvent American laws and that the U.S. government will let them get away with it as long as they’re backed by deep-pocketed political pressure campaigns run by lobbyists.”

The dig at campaigns run by lobbyists is a bit of a red herring; both sides shelled out for the inside game here. 

And though pro-tariff lobbyists made much of the fact that a few Chinese manufacturers sit on the board of the anti-tariff trade group Solar Energy Industries Association (SEIA), far more American jobs were threatened by new tariffs than would plausibly be saved by them.

The pro-tariff camp’s more incisive critique is that Biden is acquiescing to unfair competition from China. That’s a premature claim, in that the nonpartisan evaluators at the Commerce Department are still conducting their independent, quasi-judicial inquiry on whether tariff circumvention is happening. But Biden’s action this week sets up two possible outcomes: 

• If Commerce concludes that all the investment and effort that go into making solar cells and panels in the four Southeast Asian countries is major and substantial enough, then there’s no circumvention, and the two-year reprieve from tariffs doesn’t nullify anything.
• If Commerce decides manufacturers in those countries are circumventing tariffs, then the U.S. government will have identified violations of trade law but chosen not to do anything about it for up to two years. Violators could take that time to minimize exposure to tariffs before the grace period ends.

It’s easy to see why the latter situation would be frustrating to people who care more about the principles of fair trade than about buying cheap solar panels. Indeed, the message would be that, if the U.S. becomes so dependent on unfairly subsidized foreign products that actually enforcing trade law causes a national supply crisis, then it won’t enforce trade law. That doesn’t jibe well with Biden’s stated goal of using all powers available to him to strengthen American manufacturing.

Setting aside whether tariffs are an effective remedy here, Auxin correctly flagged that the U.S. currently depends on Chinese supply chains for many of the precursor ingredients to solar panels. China absolutely dominates the global supply of polysilicon, silicon ingots and silicon wafers. 

Even the major new U.S. solar factories that opened in recent years — JinkoSolar in Florida and Hanwha Q Cells in Georgia — assemble panels from photovoltaic cells imported from Asia. (First Solar is the rare company that does not rely on this supply chain because it uses a different thin-film solar technology.)

Tariffs on Chinese solar panels have been in place for a decade and have clearly raised prices in the U.S. without spurring a thriving domestic supply chain. Doing more of the same won’t actualize an American solar manufacturing renaissance, but proponents see tariffs as a necessary baseline to build upon.

The one thing the pro- and anti-tariff camps agree on

Spicy rhetoric and accusations are flying to and fro on the tariff question. So it’s striking that both sides of the tariff debate actually agree on how to incubate sustained growth in domestic solar manufacturing: pass the Solar Energy Manufacturing for America Act, or SEMA. 

SEIA President Abigail Ross Hopper, after applauding the two-year tariff reprieve, added this: ​“Today’s announcement is a great step, and enactment of the Solar Energy Manufacturing for America Act will provide an even greater boost.”

First Solar, after decrying the same reprieve, called SEMA a more ​“durable solar industrial policy” than the procurement actions the White House promised.

South Korea–based manufacturer Hanwha Q Cells is uniquely situated in the debate, as a non-Chinese company doing business in the Southeast Asian countries caught up in the tariff inquiry, while also operating a module assembly plant in Georgia that stands to benefit from tariffs. When Canary Media solicited comment on the White House decision, Scott Moskowitz, the company’s head of market strategy and public affairs for North America, said, ​“Overall, this puts existential importance on getting reconciliation done and passing the Solar Energy Manufacturing for America Act.”

The bill, sponsored by Georgia Senator Jon Ossoff (D), would provide tax credits through the 2020s for domestic producers of components all along the solar supply chain — polysilicon, wafers, cells and panels. It’s been passed by the House, but not by the Senate, where it got tangled up in stalled negotiations over the Democrats’ Build Back Better budget reconciliation bill. 

The White House supports SEMA but has not had success breaking through the logjam (read: Senator Joe Manchin) holding up this and other components of the president’s climate agenda. So the Biden administration is now trying to do what it can for solar manufacturing via executive action, without Congress. 

Among the moves announced on Monday, the White House said it will use federal procurement to ​“stimulate demand” for up to a gigawatt of domestic solar panels in the short term. But the U.S. already has considerably more than 1 gigawatt of production capacity, so it’s hard to say if this would incentivize new factory construction.

Companies want long-term certainty before they invest in new manufacturing facilities. Executive actions are, by nature, susceptible to change every four years. And it’s hard to build a business plan around federal procurement that hasn’t happened yet.

Moskowitz made these same points about procurement in a Twitter thread on Monday.