Safeguarding the Planet? Renewable Energy, Solar Panel Tariffs, and the World Trade Organisation’s Rules on Safeguards

Abstract

In November 2017, the United States’ International Trade Commission released its full report on Crystalline Silicon Photovoltaic Cells (Whether or not Partially or Fully Assembled into Other Products). It determined that “serious injury” was being caused to domestic producers by imports of solar cells. Under § 201 of the Trade Act of 1974, the President has imposed tariffs on CSPV products which will last until 2021. China requested consultations at the WTO in relation to these measures, and a Panel has been established to resolve the dispute. This will be the first dispute related to “safeguard measures” placed on renewable energy products before the WTO. In this article, I use the ITC decision imposing safeguards on solar products to consider whether emerging renewables markets pose new challenges for the international safeguards regime. In the first part of the article, I provide some background on international trade disputes related to solar power and the safeguards regime at the WTO. In the third part, I consider how safeguards remedies may be used in situations when the world is rapidly shifting towards renewable energy. I first consider whether China’s approach to developing the renewable energy sector is unusual and argue that there are reasons to expect similar forms of support for renewable power in future. I also suggest that other changes in renewable energy markets could lead to demands for safeguard measures. I then consider whether safeguards measures in these situations would be legitimate, arguing that in some situations they would be. I argue that there needs to be a change in the WTO jurisprudence regarding safeguards to account for the shift towards renewable energy, specifically in the form of changes to the understanding of the “unforeseen circumstances” that can give rise to safeguards remedies.