President Biden could be facing a legal challenge over his executive actions on green energy earlier this week. But not over the flagrant abuse of the Defense Production Act that I wrote about yesterday.
No, instead the government could be facing a lawsuit over a separate action Biden took to waive tariffs on solar-energy imports from Southeast Asia.
The White House announced on Monday that Biden had used emergency powers under the Tariff Act of 1930 to allow the secretary of commerce to remove tariffs on solar cells and modules exported by Cambodia, Malaysia, Thailand, and Vietnam for the next two years. And domestic solar companies are livid.
Some domestic producers, including a California company that filed a complaint with Commerce about unfair competition from Chinese imports, said Biden’s actions would help China’s state-subsidized solar companies at the expense of U.S. manufacturers.
“President Biden is significantly interfering in Commerce’s quasi-judicial process,” said Mamun Rashid, CEO of Auxin Solar, which filed the complain with Commerce earlier this year.
“By taking this unprecedented — and potentially illegal — action, (Biden) has opened the door wide for Chinese-funded special interests to defeat the fair application of U.S. trade law,” Rashid said in a statement.
Auxin was not consulted before the White House announcement, Rashid said, nor did the White House contact other U.S. producers. Auxin is currently “evaluating all of our legal options,” he said.
Timothy Brightbill, a lawyer who represents domestic solar manufacturers, said Tuesday that Biden was using the pretext of declaring a national emergency to negate an ongoing trade investigation.
“That is unprecedented, it is bad law and it is extremely bad, short-sighted policy, because it only makes us more dependent on Chinese-owned solar companies,” Brightbill said. The U.S. industry contends that China has essentially moved operations to four Southeast Asian countries — Thailand, Vietnam, Malaysia and Cambodia — to skirt strict anti-dumping rules that limit imports from China.
“The White House’s failure to consult with any American solar manufacturing companies before taking this unprecedented action is telling and an embarrassment,” Brightbill said.
Let’s all throw a pity party for the domestic solar industry, which might temporarily have to actually compete without special government protections.
More seriously, though, consider what in this episode sparked outrage.
With the DPA actions, the president asserted unlimited authority under a wartime-powers statute to subsidize and purchase green-energy materials without any input from Congress, under the justification that he believes that insulation, among other things, is “essential to the national defense.” Aside from a comment from Senator Pat Toomey, we heard mostly crickets from Congress — nothing about lawsuits.
With the tariff actions, the president removed one type of government privilege from the industry that stands to benefit from the DPA actions. That, not the circumvention of Congress that the DPA actions represent, is what generates furious comments about “unprecedented — and potentially illegal — action” and spurs talk of lawsuits. Not a good sign for constitutional health.
Also, you might be wondering who the political geniuses were who managed to come up with a plan to subsidize and boost domestic solar production that ticked off the domestic solar industry. The aforementioned ABC News report answers that question: Along with Energy Secretary Jennifer Granholm, “Biden’s decision was driven by White House climate adviser Gina McCarthy and” — drumroll, please — “climate envoy John Kerry.”