Solar PV manufacturer Auxin Solar and solar solutions company Concept Clean Energy have challenged the US government’s 2-year moratorium on imposing trade tariffs on solar imports from 4 Southeast Asian nations. ROTH MKM believes theirs is a ‘strong case’ and has ‘a non-trivial probability of prevailing.’ 

Philip Shen of ROTH MKM suspects this could pose a risk for retroactive tariffs on $10 billion worth of solar modules already imported, unliquidated and even installed. The petitioners have asked for the government to compile a list of all entries that entered the US duty free from 4/1/22 for the purpose of reliquidating if they win. 

“Our back-of-the-envelope calculation for unliquidated module imports suggests roughly $3bn of uncollected tariffs could be borne by importers of record starting from roughly March/April 2023 through mid-February 2024,” according to ROTH analysts.  

The duo filed the case in the US Court of International Trade (CIT) against the US Department of Commerce and the US Customs and Border Protection (CBP) on December 29, 2023. 

Both the companies have called the government’s emergency status for solar modules unlawful since it is an extension from emergency related to food, clothing and medical, surgical and other supplies. 

All eyes are now on the US CIT that may grant preliminary injunction to the petitioners, a decision which can take 4 to 8 weeks, according to ROTH MKM. 

According to a Bloomberg report that terms this as a ‘new industry risk,’ the petition calls the moratorium an ‘ill-begotten tariff holiday’ with no legal basis, allowing access to the US market to companies from outside the country at the cost of domestic solar industry. 

For a quick background, Auxin Solar called for an investigation into companies circumventing antidumping (AD) and countervailing duty (CVD) by importing Chinese solar modules into the US via Vietnam, Malaysia, Thailand and Cambodia. While the US Department of Commerce found some of the companies in breach of rules in its final determination, US President Joe Biden’s Presidential Proclamation superseded with its 24-month reprieve on module imports from these nations till June 2024 (see US Circumvention Investigation Comes To A Close). 

Meanwhile, the US solar installations continue to depend on these 4 Southeast Asian nations that cover almost 80% of the national demand. The moratorium helped the country install a record of almost 33 GW DC new capacity in 2023 (see US Exited Q3/2023 With 6.5 GW DC New Solar Capacity). 

The country also faces limited operational domestic solar module production capacity in the face of growing demand. 

The Inflation Reduction Act (IRA) has led to a flurry of investments announced in clean energy and manufacturing, estimated at more than $600 billion, yet it would take some time before the actual capacity comes online. Till then, it is imports that the US will need to depend on (see US Guidance On Clean Energy Manufacturing Credits).