In finding that U.S. tariffs imposed on Chinese solar panel imports flouted international trade rules, the World Trade Organization (WTO) gave carte blanche for industry watchers to speculate what this could mean for the solar industry in the U.S.
Buried amid the deeply arcane wording of the WTO's ruling, the key tenet extracted by most media outlets was the news that the WTO panel upheld China's claims against the U.S. Department of Commerce's (DOC) findings that "certain Chinese state-owned enterprises were public bodies" a claim that could not be proven by the DOC due to lack of sufficient evidence.
Hence, the largest chunk of the DOC's grievance that Chinese solar companies flooding the U.S. market with cheap solar panels up to 2012 were government-run entities was built on shaky, evidence-light ground.
However, in peering beyond the headline, U.S. trade representative Michael Froman was quick to reiterate that many aspects of Chinas complaint were thrown out by the WTO, and that any U.S. appeal will mean the tariffs currently in place will remain until 2016 at the earliest.
Yesterday, SolarWorld the company that first pushed for the introduction of countervailing duties against Chinese solar panels in 2012 issued a statement on the ruling, stressing that the WTO did, in fact, uphold nearly all aspects of U.S. subsidy law and practice.
"The vast majority of the subsidies that the U.S. government found in SolarWorlds original 2012 case were export subsidies, which were not impacted by the decision," said SolarWorld trade counsel and partner at Wiley Rein LLP, Tim Brightbill. "As a result, the current countervailing duties on solar panels from that trade case will remain largely intact. Assuming the U.S. government appeals the case, this will keep the current 14-15% tariffs in place until at least 2016, and then they would drop by no more than about 1%."
The SolarWorld statement added that the WTO panel's decision will have no impact on the current subsidy case announced in June, where the DOC has preliminarily applied average tariffs of 27% on Chinese panels. "The WTO continues to hold China accountable for massive subsidies to its steel, solar and numerous other industries, which distort global trade and harm U.S. and EU industries," the statement concluded.
Decision welcomed, impact questioned
Although SolarWorld was one of only a handful of voices to speak out against the ruling, even those in favor of the WTO's decision have questioned the impact it is likely to have. Tony Clifford, CEO of Standard Solar, has been a vocal opponent to the trade case for the past two years and, while broadly supportive of the ruling, remains adamant that more must be done domestically if the U.S. solar industry is to properly fulfill its potential.
"Like the overwhelming majority of the U.S. solar industry, I certainly welcome Mondays decision by the WTO," Clifford said. "This decision affirms what we all believed in 2012 the U.S. DOC trade decisions against the Chinese module manufacturers are essentially protectionist in nature. However, while welcome, the WTO decision will likely provide no relief for the U.S. solar industry in the next few years, if ever."
As the U.S. solar industry strives to achieve cost competitiveness with grid-supplied electricity, Clifford warned that the 30% solar investment tax credit (ITC) will expire at the end of 2016, and that the DOC's trade actions have reversed these price decreases, adding roughly $0.18 cents/watt to the U.S. solar industry.
"The 30% ITC that the U.S. Congress provided the solar industry has proven to be an excellent multi-year catalyst that allowed for remarkable industry growth and fantastic cost reductions," said Clifford. "Now, with the industrys goal in sight, the actions of another branch of the U.S. government are frustrating cost reduction efforts and may severely harm industry growth going forward. It is time for the U.S. government to get its collective act together and solve this problem before it causes irreversible harm to the U.S. solar industry. I do hope that the pro-solar Obama administration can become proactive and lead the effort to solve this problem."
Canadian Solar's general manager of the Americas division, Thomas Koerner, joined the chorus calls decrying the initial trade case, stating that the WTO's ruling is "in alignment with the opinion of Canadian Solar", before adding: "The imposition of countervailing and potential anti-dumping duties is not only disruptive to a fair trade business environment, but also damaging to an industry that seeks to support the U.S.'s commitment to renewable energy deployment and development."
Koerner then called on the government to re-evaluate its preliminary determination of countervailing duties, calling the trade dispute "misguided" and damaging to the "universal values of free trade and competitiveness."
Analysts at Roth Capital have taken a longer-term, more dispassionate view of the potential implications of the WTO's decision. They fully expect a U.S. appeal within the next four to five months, which then gives the WTO 90 days to review the appeal. If the U.S. loses that appeal, it has a window of 6-15 months within which it must bring its measures into conformity.
Should the U.S. fail to demonstrate sufficient compliance, the WTO could authorize China to "implement retaliatory punitive tariffs on major U.S. exports to China", which would spark an unwelcome return to the tit-for-tat days of years past. The analysts expect that the U.S. will appeal, likely lose, but continue find a way to prove that China ignored the subsidy and countervailing measures agreement and thus seek to maintain its higher countervailing duty levels.
This process could take more than two years, during which time there will be very little movement in the price of solar systems in the U.S.
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