www.nytimes.com
9 Nov 2011
HONG KONG — The United States and China are gearing up for a trade war that could catch American users of solar power in the crossfire. The Commerce Department in Washington on Wednesday opened an investigation sought by American manufacturers who accuse the Chinese of "dumping" solar panels into the United States at prices, aided by government subsidies, lower than the cost of making and distributing them.
Anticipating that move, the Chinese solar industry has been unusually vitriolic this week. A government-controlled trade group accused the White House of turning the commercial complaint into "a political farce, which is very likely a publicity show initiated by the Obama administration for the coming election."
Meanwhile, a new American trade group was formed this week, representing buyers and installers of solar power systems. It argues that any new Commerce Department restrictions on Chinese solar panels would slow the adoption of clean energy technology in the United States and could cost thousands of American jobs. Some environmentalists also oppose policies that might slow the adoption of solar power.
Solar power is a politically fraught issue in Washington, in part because of the bankruptcy this summer of a solar panel maker, Solyndra, after it had received more than $500 million in federal loan guarantees. The use of solar power in the United States is growing fast, but Chinese solar panel manufacturers have been growing even faster, raising their American market share to more than half now, from almost none five years ago.
By bringing together complex issues like manufacturing policy, job creation and climate change, the solar panel dispute is emerging as the most politically charged trade case in many years, potentially rivalling Detroit's legal case against Japanese automakers under a related trade statute in 1980. The solar panel case "is one of those once-in-a-generation cases," said Alan Wolff, a deputy United States trade representative in the Carter administration who is now the chairman of the international trade practice in the Washington office of the Dewey & LeBoeuf law firm.
Although solar power now contributes only about one-tenth of 1% of American electricity, the amount of new solar wattage installed in the United States has been growing more than 70% a year since 2008, according to GTM Research, a renewable energy market analysis firm in Boston. Seven American manufacturers filed a legal petition on Oct. 19 seeking the Commerce Department investigation and asking that tariffs of more than 100% be imposed on solar panels from China. The filing accused the Chinese industry of using billions of dollars worth of government subsidies to help gain sales in the American market and dumping panels at very low prices.
Under American trade laws, Wednesday was the deadline for the department to either begin a formal inquiry — unless it judged the case to be groundless — or find that few companies manufacturing panels in the United States actually supported it. Whatever action the American government might take, it could prove too late to save the American solar panel industry. China, whose government has been a big promoter of green-energy companies, already accounts for three-fifths of the world's solar panel production, giving it enormous economies of scale.
And it exports 95% of its production, much of it to the United States, rather than using it within China. That has helped push wholesale solar panel prices down sharply — from $3.30 a watt of capacity in 2008, to $1.80 by last January, to $1 to $1.20 today. A typical solar panel might have a capacity of 230 watts.
Although plunging prices could speed up the adoption of solar power, the American industry contends the Chinese are simply not playing fair. Besides Solyndra, two other American solar companies that together represented one-sixth of American manufacturing capacity in the sector went bankrupt in August, while four other American solar companies have laid off workers and cut output since spring of last year. President Barack Obama said in an interview on Nov. 2 with a television reporter from Oregon, the hub of the American solar panel manufacturing industry, that there were "questionable competitive practices coming out of China" in clean energy.
That prompted the "farce" statement this week by the government-controlled Chinese Renewable Energy Industries Association, condemning Mr. Obama's remark and contending that it indicated a bias in favour of the American manufacturers. "They attempt to shift the responsibility of US clean energy development failure, especially President Obama's personal responsibility, to Chinese solar cell companies," the statement also said.
The Commerce Department uses a quasi-judicial process administered mainly by civil servants to adjudicate anti-dumping and anti-subsidy cases. Congress designed the process in the 1970s to shield the decision makers from political influence, because of a perception that a succession of Republican and Democratic administrations had ignored violations of international trade rules during the Cold War by Japan and other countries as long as they remained strong geopolitical allies against the Soviet Union.
Republicans and Democrats alike from past and current administrations have defended the current process as insulated from politics. "The methodology of this is not political," said Frank Lavin, a longtime Republican who has held a series of political appointments in Republican administrations, including overseeing the anti-dumping and anti-subsidy investigations office when he was the undersecretary of commerce for international trade during President George W. Bush's second term.
But like many Republicans, Mr. Lavin was critical of the Obama administration for having provided a half-billion dollars in federal credit guarantees to the now-bankrupt Solyndra, a California company with an alternative solar power technology. The funding is the subject of a continuing investigation by House Republicans. "It's very hard to make a case that $500 million was well spent," said Mr. Lavin, who is now a public affairs consultant in Hong Kong and not advising either side in the solar panel dispute.
The Commerce Department is required by law to issue a preliminary decision on the anti-dumping claim possibly in mid-January but no later than late March, and on the anti-subsidy claim no later than mid-May. Many trade experts expect that the decision would include steep tariffs on imports, and that those tariffs would be retroactive to 90 days before each decision and possibly retroactive to Wednesday's opening of the department's investigation.
Chinese industries have lost almost all of the anti-dumping and anti-subsidy cases against them for decades because the United States still categorises China as a non market economy, which means that special rules are used that tend to favour the American industry. Most of the big Chinese solar panel manufacturers have subsidiaries in the United States that are the legal importers, so they — not the American installers of solar panels — would incur the initial costs of any tariffs. But those costs could be expected to be passed along to customers; otherwise, Chinese companies might find themselves vulnerable to higher anti-dumping penalties in the future.
Taking the lead in the dumping petition was SolarWorld Industries America, a unit of the German manufacturer SolarWorld. Six other American solar panel manufacturers signed on to the case with SolarWorld, but all have exercised the option to keep their identities secret. That anonymity could help relieve them and their executives from fears of retaliation by the Chinese government, which could come in the form of denying them access to the Chinese market or denying them visas.
But the secrecy also makes it hard for the Chinese industry's lawyers to figure out if the companies filing the case have themselves received American government subsidies. SolarWorld Industries America has acknowledged receiving a few million dollars in subsidies for research and none for exports. It is government subsidies that promote exports that are the ones likely to violate international trade rules.
The Chinese Renewable Energy Industries Association called in its statement this week for the other six American companies to be identified. But Francisco Sanchez, the American undersecretary of commerce for international trade, said during a visit to Hong Kong last month that he believed his agency could maintain the secrecy of unidentified co-filers in trade cases.
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