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The cross-industry C&M team of Invenergy Renewables LLC has achieved two major victories in challenging the Trump administration's attempt to reimpose tariffs on double-sided solar panels. This is the third time that the government has tried to restore tariffs on imports of double-sided solar panels. These cases have a long and tortured history. As a background, the United States Trade Representative (USTR) issued safeguard tariffs during the Trump administration in January 2018 to address the temporary surge in solar cell imports. Solar panel importers and domestic solar panel manufacturers debated whether double-sided solar panels should be excluded from the increased tariffs. Several companies applied to the Office of the United States Trade Representative to exclude double-sided solar panels. After approving the exclusion of double-sided panels in mid-2019, the Office of the United States Trade Representative tried to withdraw it only a few months later. The C&M team blocked this move by filing a complaint on behalf of their client Invenergy and promptly adopting a TRO and preliminary injunction. The court approved the TRO and entered a preliminary injunction in December 2019, determining that the actions of the USTR may be arbitrary and capricious. USTR tried to remedy these shortcomings through a new notification and comment procedure, and finally formulated a new rule in April 2020 to once again revoke the solar panel tariff exclusion. The government subsequently asked the court to lift its PI-but Invenergy won again, persuading the court that the USTR's actions were still arbitrary and capricious.

In October 2020, then President Trump tried to overturn the court's ruling and issued an announcement to revoke the exclusion of double-sided solar panels. He used Article 204 of the Trade Act of 1974 to impose a safeguard tariff on double-sided solar panels and increased the tariff from 15% from ad valorem to 18%. However, Article 204 of the Trade Act of 1974 provides specific conditions that allow “reduce, modify or terminate” existing safeguards, including most domestic industries petitioning the president to take action.

The C&M team brought a new set of lawsuits to challenge the administrative action and won again. CIT's opinion on November 16 agreed that, in accordance with Article 204 of the Trade Law, the President shall not re-impose safeguard tariffs on solar panels. On November 16, the International Trade Court issued a summary judgment in favor of Invenergy and its co-plaintiffs in questioning Presidential Announcement 10101, in which President Trump tried to revoke the double-sided solar panels that are vital to U.S. utility-grade solar energy. Tariff exemption. Developments. On November 17, the court ruled that Invenergy and its co-plaintiffs challenged the Trade Representative’s previous attempts to withdraw the exclusion of solar panels. The court's opinion on November 17 held that the USTR lacks the statutory authority to take such actions, and that the actions of the USTR are arbitrary and capricious because the USTR did not adequately explain its decision or respond to the comments of Invenergy and others.

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