They say President Joe Biden’s strategy imperils U.S. jobs and represents a potentially illegal end-run around Congress.

Critics are calling on Biden to halt mineral negotiations with the European Union and other nations while also slamming a recent mineral deal with Japan. The Biden administration insists that its strategy to boost supply chains among allied nations is the most potent counter to Chinese dominance over global minerals.

At issue is whether Biden should prioritize domestic mineral production and ensure producers in the United States — not manufacturers in foreign countries — reap the benefits of a coveted EV tax credit, known as 30D. The credit was included in last year’s Inflation Reduction Act.

Now, the Treasury Department is in the hot seat as it prepares to screen new trade deals and determine whether the pacts allow access to $3,750 in U.S. tax credits for EVs produced with minerals extracted or processed in partner countries. The mineral negotiations represent a marquee example of the threat Biden’s clean energy pursuit poses to other key administration policy priorities, most notably the rapid expansion of domestic manufacturing.

“They have three goals here,” Bill Reinsch, a trade expert at the Center for Strategic and International Studies, said of the Biden administration. “One is to facilitate the transition to green technology. The second one is to enhance domestic manufacturing and jobs. And the third is to do it in a way consistent with trade law and international trade rules. They can’t do all of those at the same time.”

Minerals such as lithium and cobalt are essential for today’s fleet of EVs. And experts agree that mineral production and refinement will likely form the backbone of the clean energy economy in the future and the millions of jobs that come with it. Minerals are also necessary for a long list of medical devices, smartphones and other staple products.

Meanwhile, compliance with the U.S. EV credit is based on mineral and manufacturing sourcing mandates designed to counter China by strengthening supply chains in the United States and nations with which the U.S. has trade agreements.

But critics are digging in for a fight. They’re challenging the Treasury Department’s loose interpretation of a “free-trade agreement” in the Inflation Reduction Act’s text.

“There’s enough noise to suggest Treasury is going to face some significant challenges in using this broad brush to redefine what trade agreements actually are, from a legal and constitutional standpoint,” Rich Nolan, president of the National Mining Association, a U.S. lobbying group, said in an interview.

Nolan said the mining group is “pushing the administration to bring those tax incentives home, so that those materials come from U.S. mines, from mining communities mined by American miners.”

A U.S. Geological Survey study released in January found that the United States is 100 percent import-reliant on 15 critical minerals, including minerals used in EVs like graphite and manganese. The U.S. remains more than 95 percent import-reliant on rare earths and titanium, while American companies import more than a quarter of lithium used in manufacturing, according to the study.

Another recent assessment from Securing America’s Future Energy, which promotes domestic energy production, laid out the Chinese dominance of global minerals in stark terms.

“Chinese-owned companies have strategically purchased stakes in major mineral deposits around the world, control anywhere from 60 to 100 percent of processing (depending on the mineral), and produce upwards of 70 to 90 percent of the world’s battery components,” the group said in a March report.

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In March, Biden and European Commission President Ursula von der Leyen launched negotiations over a “targeted critical minerals agreement” that will “count toward requirements for clean vehicles in the Section 30D clean vehicle tax credit.”

The announcement came amid claims from various world leaders that the Inflation Reduction Act’s incentives violate World Trade Organization rules against subsidies that promote domestic products over imports.

The Office of the United States Trade Representative, which leads U.S. trade negotiations, said the E.U. talks are ongoing.

“We will continue to work with our EU allies to boost mineral production and expand access to sources of critical minerals while diversifying global supply chains,” said USTR spokesperson Sam Michel. The Swedish ambassador to the U.S., Karin Olofsdotter, recently told E&E News that a transatlantic pact is “in the pipeline.”

The Japanese deal, announced two weeks after the E.U. talks launched, “affirms” the two countries’ “obligation not to impose prohibitions or restrictions” on bilateral trade relations.

Now, Indonesia, Argentina, and the Philippines are signaling interest in similar deals. Even South Korea, which already shares a trade deal with the United States that was passed by Congress in 2011, is aiming for more mineral concessions.

“President Biden and I welcomed the expansion of our [bilateral] mutual investment in advanced technology, including semiconductors, electric vehicles and batteries,” South Korean President Yoon Suk Yeol said during a recent event at the White House, according to a translator. “President Biden has said that no special support and considerations will be spared for Korean companies’ investment.”

Congressional complaints

U.S. lawmakers say they’ve been kept on the sidelines.

Rep. Adrian Smith (R-Neb.), the chair of the House Ways and Means Trade subcommittee and the co-chair of the U.S.-Japan Congressional Caucus, said the Biden administration has not briefed him on any mineral trade negotiations.

“This is basically a workaround. And I don’bodog sportsbook review t think it’s sustainable long-term,” Smith told E&E News. “I think there will be attempts to assert legislative prerogative.”

Never far from the spotlight on Capitol Hill, Senate Energy and Natural Resources Chair Joe Manchin (D-W.Va.) has regularly blasted the Biden administration’s implementation of the Inflation Reduction Act, saying recently he would “vote to repeal my own bill.”

Manchin has also threatened a lawsuit. Still, legal experts say it’ll be a tough case to make because of challenges in meeting legal standing. The moderate Democrat is now set to face off against West Virginia Gov. Jim Justice next year to retain his seat in a state Biden lost by nearly 40 points in 2020.

The Inflation Reduction Act text says that EVs qualify for half of the $7,500 credit if the minerals used in the models are “extracted or processed” in the U.S. or “in any country with which the United States has a free trade agreement.”

Meanwhile, the proposed Treasury guidance for the 30D credit gives access to 20 foreign countries with which the U.S. has traditional free trade agreements passed by Congress, along with “additional countries that the [Treasury] Secretary identifies,” such as Japan.

Reinsch, the long-time Washington trade expert, predicted the fight over the definition of a free-trade agreement will likely be settled in court.

“Since the term is undefined in the [Inflation Reduction Act], that’ll probably be resolved by litigation. This is America. Anybody can sue anybody for anything,” he said. “There’s no legislative history here to provide any guidance. And the term is not defined in the statute. So it ends up with judges.”

The two top Democratic trade lawmakers in Congress called the Japanese deal “unacceptable,” arguing the administration “does not have the authority to unilaterally enter into free trade agreements.”

“Even among allies, the United States should only enter into agreements that account for the realities of an industry, learn from past agreements, and raise standards,” Rep. Richard Neal (D-Mass.) and Sen. Ron Wyden (D-Ore.) said in late March, the day the Office of the U.S. Trade Representative announced the deal with Japan. “Agreements should be developed transparently and made available to the public for meaningful review well before signing — not after the ink is already dry.”

An aide for Wyden’s Senate Finance Committee, who was granted anonymity because the person is not authorized to speak publicly on the issue, said the Biden administration last briefed the committee on mineral trade talks in “early March.”

The congressional complaints are echoed in environmental and labor circles.

Ben Beachy, vice president of manufacturing and industrial policy at the BlueGreen Alliance, touted domestic manufacturing as the best solution to curb the U.S. climate footprint.

“The onshoring of EV manufacturing will help to cut the climate pollution that, ironically, is often baked into imports of EV components,” Beachy said. “That’s because overseas corporations tend to be more emissions intensive than U.S. factories in producing the aluminum, steel and other materials that go into EVs.”

He said the Japanese deal should “not be repeated” with the E.U. or other countries.

A recent BlueGreen Alliance study found that the Inflation Reduction Act has spurred new domestic manufacturing projects that will create 900,000 jobs. The law sparked a wave of new battery plant announcements. And the Department of Energy recently extended a $2 billion loan to a battery recycling plant in Nevada.

But the mineral negotiations are not the first time the Biden administration has struggled to balance climate and domestic manufacturing priorities.

In April, the Republican-controlled House of Representatives voted to repeal a Biden administration pause on solar tariffs from four Southeast Asian countries where the administration itself determined China is processing solar products in circumvention of U.S. tariffs. And despite a veto threat, the Senate passed the measure Wednesday with nine Democrats in support.

Biden administration officials say the pause was necessary to maintain high levels of solar deployment in the United States.

‘Immediate action today’

For months, top Biden administration officials have urged allied nations to band together with the U.S. to develop collaborative mineral supply chains.

“When we look at critical minerals and we look at solar panels and wind turbines and electric vehicles and batteries, there is already now an effort by some to narrow the control of that supply chain into one or a handful of countries,” Amos Hochstein, deputy assistant to the president and senior adviser for energy and investment, said in a March speech in Washington.

“We have to take immediate action today to work as a global community with our allies and to make sure that that market changes fundamentally,” he said. At the time of the speech, Hochstein was the State Department’s special presidential coordinator for global infrastructure and energy security.

David Turk, deputy secretary at the Department of Energy, told E&E News recently that the effort to boost allied mineral supply chains globally should be a “full interagency” strategy, pointing to expertise at DOE and assistance tools at agencies such as the U.S. International Development Finance Corp. and the U.S. Agency for International Development (USAID).

“We have our national labs, [and] we’re bringing some of that expertise to the table,” said Turk. “We’ve been having a lot of good conversations, including with [the White House]” and the Treasury Department.

Last year, the U.S. Trade and Development Agency helped to finance a mineral processing facility in the Philippines. And on May 1, following a summit at the White House with Philippine President Ferdinand Marcos Jr., Biden announced a new package of assistance to the Philippine mineral sector, including $5 million in USAID funds to boost mineral processing and EV component manufacturing in the country.

Turk said he’s looking for “good, forward-leaning language” on minerals in the upcoming G-7 nations summit in Japan.

The U.S. is home to some of the largest mineral reserves globally. And the U.S. mining sector continues to push the Biden administration to open up key mineral reserves in Minnesota, Arizona and Alaska.

But even where the administration is putting its weight behind mine proposals, judges are raising objections.

Mining experts say a 2019 judicial decision, which halted the Rosemont bodog sportsbook review copper mine in Arizona, is complicating the approval mining permits by requiring companies to prove the existence of valuable minerals even at the locations mining companies want to dump mine waste.

House Republicans included language in their lead energy and permitting package to allow a company to “use, occupy, and conduct operations on public land, with or without the discovery of a valuable mineral deposit.”

Backing Biden

Proponents of EV deployment in the United States are putting their weight behind the Treasury Department’s liberal interpretation of trade agreements.

“We’re certainly supportive of expanding negotiations. We want to make sure we have the largest reach of eligibility possible for the clean vehicle credit,” said Leilani Gonzalez, policy director for the Zero Emission Transportation Association, an EV deployment advocacy group.

She added that with countries still in the middle of developing mineral supply chains, the question to answer is whether they can meet the requirements that the Department of Treasury has laid out.

Abigail Wulf, director of the Center for Critical Minerals Strategy at Securing America’s Future Energy, the pro-domestic-energy organization, also called for a “broadened” definition of trade deals.

“We think it’s a good thing to expand the tent when it comes to trade agreement countries,” said Wulf. “Simultaneously, while we’re letting down those draw bridges, we need to be making sure that the U.S. and others are building high enough walls around the Chinese Communist Party.”

The Inflation Reduction Act disqualifies vehicles from the 30D credit if the EVs contain minerals or battery components from a foreign entity of concern. While experts expect Chinese entities to fit that definition, the foreign entity of concern portion of the 30D credit doesn’t take effect until 2024.

On top of her support for the mineral negotiations, Wulf urged the Biden administration to pass traditional trade pacts with congressional support and enforceable labor and environmental standards. The United States last closed an enforceable trade deal with Mexico and Canada in 2020.

Still, Wulf said the administration is showing little appetite for that route.

“The problem with these trade agreements that aren’t ratified by Congress is that they aren’t actually enforceable,” Wulf said.

To read the full article, please click here.

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Our excess-mortality model suggests that 8m-16m people have died in the pandemic. The central estimate is 14m. The developing world is vulnerable to the virus, especially lower-middle-income countries where remote working is rare and plenty of people are fat and old. If you strip out China, non-rich countries have 68% of the world’s population but 87% of its deaths. Only 5% of those aged over 12 are fully vaccinated.

Alongside the human cost is an economic bill, since emerging markets have less room to spend their way out of trouble. Medium-term gdp forecasts for all emerging economies are in aggregate 5% lower than before the virus struck. People are angry and, even though protesting during a pandemic is risky, violent demonstrations around the world are more common than at any time since 2008.

Rich places, such as America and Britain, are no strangers to incompetence and turmoil. But disappointment has hit emerging economies especially hard. In the early 2000s they buzzed Bodog Poker with talk of “catch-up”: the idea that poorer countries could prosper by absorbing foreign technology, investing in manufacturing and opening up their economies to trade, as a handful of East Asian tiger economies had done a generation earlier. Wall Street coined the term brics to celebrate Brazil, Russia, India and China—the world economy’s new superstars.

For a while, catch-up worked. The proportion of countries where the level of economic output per head was growing faster than in America rose from 34% in the 1980s to 82% in the 2000s. The implications were momentous. Poverty fell. Multinational companies pivoted away from the boring old West. In geopolitics catch-up promised a new multipolar world in which power was more evenly distributed.

This golden age now looks as if it has come to a premature end. In the 2010s the share of countries catching up fell to 59%. China has defied many doomsayers and there have been quieter Asian success stories such as Vietnam, the Philippines and Malaysia. But Brazil and Russia have let down the brics and, as a whole, Latin America, the Middle East and sub-Saharan Africa are falling further behind the rich world. Even emerging Asia is catching up more slowly than it was.

Bad luck has played a part. The commodity boom of the 2000s fizzled out, global trade stagnated after the financial crisis and bouts of exchange-rate turbulence caused turmoil. But so has complacency as countries have come to think that fast growth was preordained. In many places basic services such as education and health care have been neglected. Crippling problems have been left unfixed, including South Africa’s idle power plants, India’s rotten banks and Russia’s corruption. Instead of defending liberal institutions, such as central banks and the courts, politicians have used them for their own gain.

What happens next? One risk is an emerging-market economic crisis as interest rates in America rise. Fortunately most emerging economies are less brittle than they were, because they have floating exchange rates and rely less on foreign-currency debt. Long-running political crises are a bigger worry. Research suggests that protests suppress the economy, which leads to further discontent—and that the effect is more marked in emerging markets.

Even if emerging economies avoid chaos, the legacy of covid-19 and rising protectionism could condemn them to a long period of slower growth. Many of their people will remain unvaccinated until well into 2022. Long-term productivity could be lowered as a result of so many children having missed school.

Trade may also become harder. China is turning inward, away from the broadly open policies that made it richer. If that continues, China will never be the vast source of consumer demand for the poor world that America has been for China in recent decades.

The West’s increasing protectionism will also limit export opportunities for foreign producers which, in any case, will be less advantageous as manufacturing becomes less labour-intensive. Unfortunately, rich countries are unlikely to make up for it by liberalising trade in services, which would open up other paths to growth. And they may fail to help exposed economies such as Bangladesh—a success story—adapt to climate change.

Faced with this grim landscape, emerging markets may themselves be tempted to abandon open trade and investment. That would be a grave error. An unforgiving global environment makes it even more important for them to stick to policies that work. Turkey’s notion that raising interest rates causes inflation has been disastrous; Venezuela’s pursuit of socialism has been ruinous; and banning foreign firms from adding customers, as India just has with Mastercard, is self-defeating. When catching up is hard, those emerging markets which stay open will have the best chance.

Catch up, don’t give up

Some rules have changed: universal access to digital technologies is now vital, as is an adequate social safety-net. But the principles of how to get rich remain the same today as they ever were. Stay open to trade, compete in global markets and invest in infrastructure and education. Before the liberal reforms of recent decades, economies were diverging. There is time yet to avoid a return to the needless hardship of old.

To read the full commentary from The Economist, please click here. 

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The potential for such a momentous national investment in resources and attention brings with it options and choices for policymakers to consider. For instance, a quarter of a trillion dollars over a five-year period is a sizable investment of approximately $50 billion a year in “new” spending. But should that be accompanied by an enterprise dedicated to do the research, development, and innovation? The version passed by the Senate does not develop or name one. The closest it comes is the creation of an interagency working group (PDF) led by the Office of the Science and Technology Policy which would include the National Science Foundation, Department of Energy, and the Department of Commerce and other agencies as needed to coordinate implementation of the legislation and associated activities.

On the one hand, there might be a case to be made for an organization to have responsibilities for implementation and reporting, oversight and deconfliction, analytical capacity and forecasting. But on the other hand, it’s possible that taking that more directive approach to research, development, and innovation could have an effect that is the opposite of what the bill’s authors intended by stifling innovation and industrial capacity.

Increasing U.S. competitiveness would also seem to imply having the capacity for conducting leading research bodog online casino in the highest quality facilities, development that supports the maturing of technologies, successfully crossing the “valley of death” between development activities and commercial use, and an industrial capacity to economically produce at scale. Each of these key components is well represented within USICA, but there seems to be less intent regarding connective tissue or relationships among them. How important will it be to the success of the effort for the linkages between each to be well identified? These transitional points between key components may well be essential for successful technology development and fielding.

Another option policymakers may want to consider is the extent of investment in anticipatory capacity to sense technology challenges and opportunities and make appropriate changes. One only need mention the examples of semiconductor production capacity and 5G communications to highlight why a capacity for intelligence collection and analysis, and forecasting trends would be useful in this regard. Such issues did not occur overnight. We have been watching them unfold in slow motion for more than four decades in the case of microprocessors and over five years in the case of 5G.

In both cases, there were missteps and lost opportunities. Japan accumulated a market share of almost 80 percent of the global DRAM market with seven of the top 10 chip makers by the mid-1980s before the United States acted. In 5G, the initial choice of the spectrum led to a more costly solution that would be less affordable and therefore less attractive for adoption by some nations. The recent reallocation of the military spectrum for consumer applications means that U.S. companies will be able to develop more competitive 5G networks.

Given the need to make difficult choices in this race to innovate and compete, a capacity for performing net assessments, which normally focus on two or more competitors or opponents through a comparative process might prove a useful option worth considering. Net assessments strive to define and clarify options, assist in understanding the relative merits of these options, and provide a basis for decision makers to make choices. In the 1970s, the Department of Defense used a net assessment framework in recommending continued funding of long-range bombers. The objective of the recommendation in this case was not for effectiveness, but rather that U.S. investment in bombers would cause the Soviet Union to have to spend more resources developing a modernized air defense system which they could not afford. Such a net assessment capacity could provide important insights in considering technologies for development. In the prospective case of competition with China, it might provide a basis for decisions on technology development based on other objectives including, for instance, confounding a competitor’s decision making.

The almost $10 billion over five years for university innovation institutes to conduct multi-disciplinary, collaborative research relevant to the key technology focus areas is recognition of the importance of human capital investment to this effort to innovate and compete. What options might be further developed to educate, attract and develop the next generation of scientists, technologists, and engineers? Such a workforce needs to reflect the full range of American diversity and backgrounds.

Of course the United States faces a range of other technology and innovation competitors on the security side of the ledger. In addition to China–North Korean nuclear and missile systems there is Turkey’s integration of Russian-made air defense equipment into its forces, as well as Russia’s cyber-attacks, just to name a few. While USICA focuses on competing with China more generally, it’s worth not losing sight of these additional arenas of competition.

Daniel M. Gerstein is a senior policy researcher at the nonprofit, nonpartisan RAND Corporation. He previously served as the undersecretary (acting) and deputy undersecretary in the Science and Technology Directorate of the Department of Homeland Security 2011–2014.

To read the original commentary from the RAND Corporation, please visit here.

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Just like the Texas power grid, the U.S. system for protecting U.S. domestic industries and our economy from unfairly traded imports could use some attention. In particular, the International Trade Commission’s (ITC) adjudication of cases brought under Section 337 to block imports is functioning sub-optimally, inconsistently, and inefficiently.

It features an ever-increasing workload for the administrative law judges who handle Section 337 cases, as well as repeated misfires of the system by investigating complaints and issuing exclusions that harm U.S. interests. The system requires retuning in a number of areas if the ITC is to fulfill its mission.

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Let’s take one area—the scope of exclusion orders. To maintain a well-tuned economy with strong competition and consumer choice, decisions in 337 cases must ensure that unfairly traded goods can be kept out of the U.S., while legitimate international trade involving non-infringing, new and redesigned products can continue to flow into the U.S. without any problem.

To achieve this goal, when the ITC unleashes its massive power to block imports from the U.S. market because of unfair competition, it must take every precaution not to impede fair trade and innovation or stifle healthy competition in the U.S. Bodog Poker market. Under its current practice, the ITC unfortunately has not been attuned to the need to take all the precautions required to meet these key metrics.

Since Section 337’s enactment through its amendments in the late 1980s and early 1990s, this legal remedy has grown to become a very powerful weapon for IP holders to block the importation of goods—which historically were typically knock-offs of patented consumer goods or industrial equipment. Even in the 1990s, few cases involved complex products.

The system seemed to balance the need to protect U.S. industries reliant on intellectual property, importers’ rights to import fairly traded goods, and U.S. consumers’ need for choice and competition in the marketplace.

Digital Revolution Brings Complexity

Since the onset of the digital revolution, products and patents have become much more complex, making it more difficult, and yet more necessary, to determine what products should be excluded and what products should not.

Unfortunately, ITC exclusion orders have become broader and broader resulting in very few products in any category found conclusively to infringe by the ITC during its investigations. This has put a huge burden on importers to prove to a completely different agency, U.S. Customs, that their non-infringing products, including redesigned products, should not be stopped at the border after ITC’s investigations have ended.

The ITC set a supposed policy of assessing redesigns that were presented during the initial 337 investigation, and clearing them for import where they did not infringe, to keep fair trade and innovation moving forward. This is a win-win policy. The IP holder gets infringement to cease, importers know what products can continue to be imported, and U.S. consumers get prompt access to newly redesigned products to ensure a fair and competitive marketplace.

However, the ITC’s lack of a consistent approach to reviewing redesigned products may generate presumptive import bans on non-infringing products to the detriment of importers and U.S. consumers. It also creates business uncertainty.

Whenever the ITC fails to assess a redesign, this just adds to the prevailing uncertainty regarding whether the ITC will assess redesigns the next time. Further, if the respondent cannot count on avoiding the effects of an exclusion with a redesign, this tilts the balance of power dramatically, perversely increasing complainants’ leverage to achieve an extortionate settlement

In the end, such results impair the ITC’s credibility and its execution of its mandate to protect free and fair trade.

Potential Remedies

How does one remedy this situation? A modest tweak to ITC standards of practice would establish a system whereby the ITC adjudicates a redesign of the product or component accused of infringement, if the redesign is submitted for evaluation during the pendency of the investigation.

The other alternative, if the ITC cannot self-correct, would seem to be a wholesale review by Congress of the ITC’s function and passage of ITC reform legislation. That is much more time consuming, when it seems a timely incremental change will fix the problem.

Like the Texas power system, the ITC system was not broken until it was. Let’s get it fixed.

Charles B. Meyer, registered patent attorney, is a Texas-based tech lawyer with over 30 years’ experience in international and domestic intellectual property law.

To read the full commentary online, please click here.

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