Trump’s Push to Kill Solar Loophole Blocked by Trade Court

(Bloomberg) -- The Trump administration lost another bid to kill a tariff loophole on imported solar equipment, enabling American developers to continue skirting its duties for the time being.

A U.S. trade court on Wednesday rejected the administration's request to clear the way for removal of a tariff exemption on bifacial, or two-sided, panels. U.S. Court of International Trade Judge Gary Katzmann said the government had yet to meet its “burden of showing sufficiently changed circumstances to justify dissolving” a preliminary injunction against the exemption's elimination.

The ruling is a blow to manufacturers that have invested in U.S. production and a win to Asian panel makers and American developers. It ensures the bifacial exemption will stay in place for some time, possibly months.

The U.S. Trade Representative said in a statement late Wednesday that it strongly disagrees with the decision: “The solar industry and the jobs it represents are important to this country, and USTR will take all necessary and appropriate steps to ensure that its safeguard relief is effective.”

If the administration files another request to dismiss the complaint against the loophole's removal, both the government and clean-power developers will get a chance to submit their legal arguments, and then the judge is likely to schedule a hearing before issuing a decision. The judge set a June 17 date for the parties to submit a schedule for how the case will proceed.

“We maintain that the federal government bypassed procedural requirements in attempting to reverse a tariff exclusion for imported bifacial solar panels,” Abigail Ross Hopper, president of the Solar Energy Industries Association, said in a statement Wednesday.

The Trump administration surprised the renewable energy industry when it granted the bifacial exemption last year. But the administration then reversed course and began a push to remove it.

The trade court temporarily blocked that effort after a solar developer argued the administration hadn't allowed for public comments prior to moving to revoke the loophole. The trade representative sought comments this year, and in April requested the court to lift it.

In declining to dismiss the case or lift the order keeping the exemption in place, Katzmann said he wasn't taking any position on whether the tariff exemption should remain.

“Instead, the court merely continues to require the government to follow its own laws when it acts,” he said.