U.S.-China Solar Fight Lurches Forward

If last week’s news that the U.S. Department of Commerce was imposing new duties on Chinese solar imports left you with a bad case of déjà vu, or at least wondering if the story would ever end, that’s understandable. It’s been a long-running melodrama.

Oregon-based SolarWorld Industries America, a division of the German company SolarWorld, got it all going in October 2011. Drowning in a wave of cheap Chinese solar panels, it brought allegations of illegal dumping and state subsidies to U.S. trade authorities. Many hard-to-distinguish rulings have followed, reflecting the careful, bureaucratic manner in which such trade claims proceed – as well as SolarWorld’s persistence in making duties air-tight.

Through all the machinations, one thing has remained clear: To the dismay of some in the U.S. solar industry that have thrived on falling panel prices, SolarWorld always wins.

The latest ruling focused primarily on SolarWorld’s allegation that Chinese companies were skirting duties by sending offshore production of solar cells – or even aspects of production of solar cells – to third countries, principally Taiwan. (A solar module, or panel, comprises a number of solar cells.) In June, SolarWorld won antisubsidy duties on products that included such cells; now they’ve also won antidumping duties. Even further, the new ruling extends antidumping duties to cells made in Taiwan whether or not they go into panels from China.

The ruling, like the one in June, was preliminary, but so far in these cases final imposition has taken on the feel of mere formality; plus, the duties don’t wait for a final decision – they go into effect immediately. The levels vary by company, but SolarWorld said in a news release that with the June ruling factored in, “most companies will pay combined duties of about 47 percent.”

In 2012, SolarWorld had won duties averaging 31 percent on purely Chinese-made cells and panels that used them.

While SolarWorld cheered the latest ruling, the Solar Energy Industries Association, U.S. solar’s leading trade group, put out a press release with the stark headline, “SEIA Condemns Decision to Impose New Tariffs on Solar Modules.” The reaction was in line with an SEIA statement made in January, shortly after SolarWorld filed the case, but was a world different from the neutral-sounding notes the organization tried to strike when the dispute first erupted in 2011.

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In an interview, Wiley Rein lawyer Timothy Brightbill, lead counsel for SolarWorld and the Coalition for American Solar Manufacturing, which SolarWorld heads up, said, “SEIA has gone out of its way to take China’s side, which is very disappointing.”

SEIA’s John Smirnow, vice president of trade and competitiveness, said there’s been no shift in the organization’s essential view – that a negotiated settlement would be best for the entire industry, from supply chain, to installers, to manufacturers. “We’ve been calling for a negotiated solution for 18 months,” Smirnow said, “and we developed a solution we think represents the entire industry.”

That would be the proposal that Brightbill said “never had any leverage and has even less leverage now.” Brightbill said the ball is in China’s court.

“SolarWorld is open to any solution that addresses the unfair trade practices in the marketplace and that is enforceable,” Brightbill said. “It is unclear to us whether the government of China is serious about such a proposal.”

China might send a positive signal, Brightbill said, by seeking a “suspension agreement,” under which it would offer to set a minimum price for its products in return for a suspension of the U.S. investigations. The U.S. would most likely say no, but theoretically at least, the offer could open the door just a crack to meaningful discussions.

There does appear to be more at stake now. Solar industry watcher GTM Research has said that while the 2012 round of duties had minimal impact on the market, with the wider scope of coverage, “pricing for Chinese modules shipped to the U.S. is highly likely to increase starting in July 2014,” and “the primary competitive advantage of Chinese suppliers – lower pricing by as much as 25 percent historically – could be greatly diminished.”

Smirnow said that’s already putting the expansion of solar power in the United States in jeopardy, with “projects representing billions in investment and thousands of jobs” at stake. Brightbill said that “there are some U.S. companies whose business model is built on dumped and subsidized Chinese imports.” Too bad for them, he said, that “the law is on our side.”

With SolarWorld holding all the winning cards so far, SEIA and installers and developers in CASE, the Coalition for Affordable Solar Energy, have been calling on the Obama administration to get behind negotiations. A big push in that direction hasn’t been evident, even after China retaliated last year with duties on imports of U.S. polysilicon, the chief material in solar cells. And the recent experience in Europe might not be the best endorsement of a settlement: The European Union and China reached a deal in 2013, but this June a group of European companies alleged “massive violation” by the Chinese.