UNITED STATES — CERTAIN MEASURES RELATING TO THE RENEWABLE ENERGY SECTOR REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 27 June 2019
Document codes: WT/DS510/R
Complainant: India
Respondent: U.S.
Third parties: Brazil, China, EU, Indonesia, Japan, South Korea, Norway, Russia, Saudi Arabia, Singapore, Taiwan, Turkey
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 3.1(b), 3.2  Subsidies and Countervailing Measures (SCM)Art. III:4  GATT 1994Art. 2.1  Trade-Related Investment Measures (TRIMs)Art. 25, 1.1  Subsidies and Countervailing Measures (SCM)Art. 2.2  Trade-Related Investment Measures (TRIMs)

UNITED STATES — CERTAIN MEASURES RELATING
TO THE RENEWABLE ENERGY SECTOR
REPORT OF THE PANEL

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel 4
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 First integrated executive summary of the arguments of India 11
Annex B-2 Second integrated executive summary of the arguments of India 22
Annex B-3 First integrated executive summary of the arguments of the United States 30
Annex B-4 Second integrated executive summary of the arguments of the United States 40

ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Brazil 48
Annex C-2 Integrated executive summary of the arguments of China 50
Annex C-3 Integrated executive summary of the arguments of the European Union 53
Annex C-4 Integrated executive summary of the arguments of Japan 56
Annex C-5 Integrated executive summary of the arguments of Norway 60

ANNEX D
PRELIMINARY RULING OF THE PANEL
Contents Page
Annex D-1 Preliminary ruling of the Panel (27 September 2018) 63

ANNEX E
INTERIM REVIEW
Contents Page
Annex E-1 Interim Review 86

CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation
Argentina – Financial
Services
Appellate Body Report, Argentina – Measures Relating to Trade in Goods and
Services, and Add.1, adopted 9 May 2016, DSR 2016:II, p. 431
Argentina – Footwear (EC) Appellate Body Report, Argentina – Safeguard Measures on Imports of Footwear,
, adopted 12 January 2000, DSR 2000:I, p. 515
Argentina – Hides and
Leather
Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and the
Import of Finished Leather, and Corr.1, adopted 16 February 2001,
DSR 2001:V, p. 1779
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon ,
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres,
WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, p. 1527
Brazil – Taxation Panel Reports, Brazil – Certain Measures Concerning Taxation and Charges ,
WT/DS472/R, Add.1 and Corr.1 / WT/DS497/R, Add.1 and Corr.1, adopted 11
January 2019, as modified by Appellate Body Reports WT/DS472/AB/R /

Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the Automotive
Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000,
DSR 2000:VI, p. 2985
Canada – Autos Panel Report, Canada – Certain Measures Affecting the Autom otive Industry ,
WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by
Appellate Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII,
p. 3043
Canada – Dairy (Article 21.5
– New Zealand and US)
Appellate Body Report, Canada – Measures Affecting the Importation of Milk and
the Exportation of Dairy Products – Recourse to Article 21.5 of the DSU by
New Zealand and the United States, WT/DS103/AB/RW, WT/DS113/AB/RW,
adopted 18 December 2001, DSR 2001:XIII, p. 6829
Canada – Renewable Energy
/ Canada – Feed-in Tariff
Program
Appellate Body Reports, Canada – Certain Measures Affecting the Renewable
Energy Generation Sector / Canada – Measures Relating to the Feed -in Tariff
Program, WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013,
DSR 2013:I, p. 7
Canada – Wheat Exports
and Grain Imports
Appellate Body Report, Canada – Measures Relating to Exports of Wheat and
Treatment of Imported Grain , WT/DS276/AB/R, adopted 27 September 2004,
DSR 2004:VI, p. 2739
Canada – Wheat Exports
and Grain Imports
Panel Report, Canada – Measures Relating to Exports of Wheat and Treatment of
Imported Grain , WT/DS276/R, adopted 27 September 2004, upheld by
Appellate Body Report WT/DS276/AB/R, DSR 2004:VI, p. 2817
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products , WT/DS207/AB/R, adopted 23 October
2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)
China – Agricultural
Producers
Panel Report, China – Domestic Support for Agricultural Producers, WT/DS511/R
and Add.1, adopted 26 April 2019
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile Parts,
WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, adopted 12 January
2009, DSR 2009:I, p. 3
China – Auto Parts Panel Reports, China – Measures Affecting Imports of Automobile Parts ,
WT/DS339/R, Add.1 and Add.2 / WT/DS340/R, Add.1 and Add.2 / WT/DS342/R,
Add.1 and Add.2, adopted 12 January 2009, upheld (WT/DS339/R) and as
modified (WT/DS340/R / WT/DS342/R) by Appellate Body Reports
WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, DSR 2009:I, p. 119
China – Publications and
Audiovisual Products
Panel Report, China – Measures Affecting Trading Rights and Distribution Services
for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R
and Corr.1, adopted 19 January 2010, as modified by Appellate Body Report
WT/DS363/AB/R, DSR 2010:II, p. 261
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of Various
Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, adopted
22 February 2012, DSR 2012:VII, p. 3295
China – Raw Materials Panel Reports, China – Measures Related to the Exportation of Various Raw
Materials, WT/DS394/R, Add.1 and Corr.1 / WT/DS395/R, Add.1 and Corr.1 /
WT/DS398/R, Add.1 and Corr.1, adopted 22 February 2012, as modified by
Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R,
DSR 2012:VII, p. 3501
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry ,
WT/DS366/R and Corr.1, adopted 20 May 2009, DSR 2009:VI, p. 2535

Short Title Full Case Title and Citation
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting Asbestos
and Asbestos -Containing Products , WT/DS135/AB/R, adopted 5 April 2001,
DSR 2001:VII, p. 3243
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation,
Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997,
DSR 1997:II, p. 591
EC – Chicken Cuts Appellate Body Report, European Communities – Customs Classification of
Frozen Boneless Chicken Cuts , WT/DS269/AB/R, WT/DS286/AB/R, adopted
27 September 2005, and Corr.1, DSR 2005:XIX, p. 9157
EC – Export Subsidies on
Sugar
Appellate Body Report, European Communities – Export Subsidies on Sugar ,
WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, adopted 19 May 2005,
DSR 2005:XIII, p. 6365
EC – Export Subsidies on
Sugar (Brazil)
Panel Report, European Communities – Export Subsidies on Sugar, Complaint by
Brazil, WT/DS266/R, adopted 19 May 2005, as modified by Appellate Body Report
WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIV, p. 6793
EC – Export Subsidies on
Sugar (Thailand)
Panel Report, European Communities – Export Subsidies on Sugar, Complaint by
Thailand, WT/DS283/R, adopted 19 May 2005 , as modified by Appellate Body
Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIV,
p. 7071
EC – Fasteners (China) Panel Report, European Communities – Definitive Anti -Dumping Measures on
Certain Iron or Steel Fasteners from China, WT/DS397/R and Corr.1, adopted 28
July 2011, as modified by Appellate Body Report WT/DS397/AB/R,
DSR 2011:VIII, p. 4289
EC – IT Products Panel Reports, European Communities and its member States – Tariff Treatment
of Certain Information Technology Products , WT/DS375/R / WT/DS376/R /
WT/DS377/R, adopted 21 September 2010, DSR 2010:III, p. 933
EC – Sardines Panel Report, European Communities – Trade Description of Sardines ,
WT/DS231/R and Corr.1, adopted 23 October 2002, as modified by
Appellate Body Report WT/DS231/AB/R, DSR 2002:VIII, p. 3451
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting the
Importation and Marketing of Seal Products, WT/DS400/AB/R / WT/DS401/AB/R,
adopted 18 June 2014, DSR 2014:I, p. 7
EC – Selected Customs
Matters
Appellate Body Report, European Communities – Selected Customs Matters ,
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791
EU – Fatty Alcohols
(Indonesia)
Appellate Body Report, European Union – Anti-Dumping Measures on Imports of
Certain Fatty Alcohols from Indonesia , WT/DS442/AB/R and Add.1, adopted
29 September 2017, DSR 2017:VI, p. 2613
EU – PET (Pakistan) Appellate Body Report, European Union – Countervailing Measures on Certain
Polyethylene Terephthalate from Pakistan, WT/DS486/AB/R and Add.1, adopted
28 May 2018
India – Autos Panel Report, India – Measures Affecting the Automotive Sector , WT/DS146/R,
WT/DS175/R, and Corr.1, adopted 5 April 2002, DSR 2002:V, p. 1827
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998,
DSR 1998:I, p. 9
India – Solar Cells Panel Report, India – Certain Measures Relating to Solar Cells and Solar Modules,
WT/DS456/R and Add.1, adopted 14 October 2016, as modified by
Appellate Body Report WT/DS456/AB/R, DSR 2016:IV, p. 1941
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry ,
WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, Corr.1 and Corr.2, adopted
23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201
Italy – Agricultural
Machinery
GATT Panel Report, Italian Discrimination Against Imported Agricultural
Machinery, L/833, adopted 23 October 1958, BISD 7S/60
Japan – Agricultural
Products II
Appellate Body Report, Japan – Measures Affecting Agricultural Products ,
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, p. 277
Japan – Alcoholic Beverages
II
Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p. 97
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and
Paper, WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, p. 1179
Korea – Alcoholic Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages , WT/DS75/AB/R,
WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, p. 3

Short Title Full Case Title and Citation
Korea – Various Measures
on Beef
Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and
Frozen Beef , WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001,
DSR 2001:I, p. 5
Mexico – Corn Syrup
(Article 21.5 – US)
Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose
Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSU
by the United States, WT/DS132/AB/RW, adopted 21 November 2001,
DSR 2001:XIII, p. 6675
Mexico – Taxes on Soft
Drinks
Appellate Body Report, Mexico – Tax Measures on Soft Drinks and Other
Beverages, WT/DS308/AB/R, adopted 24 March 2006, DSR 2006:I, p. 3
Mexico – Taxes on Soft
Drinks
Panel Report, Mexico – Tax Measures on Soft Drinks and Other Beverages ,
WT/DS308/R, adopted 24 March 2006, as modified by Appellate Body Report
WT/DS308/AB/R, DSR 2006:I, p. 43
Russia – Pigs (EU) Panel Report, Russian Federation – Measures on the Importation of Live Pigs,
Pork and Other Pig Products from the European Union, WT/DS475/R and Add.1,
adopted 21 March 2017, as modified by Appellate Body Report WT/DS475/AB/R,
DSR 2017:II, p. 361
Russia – Tariff Treatment Panel Report, Russia – Tariff Treatment of Certain Agricultural and Manufacturing
Products, WT/DS485/R, Add.1, Corr.1, and Corr.2, adopted 26 September 2016,
DSR 2016:IV, p. 1547
Thailand – Cigarettes
(Philippines)
Appellate Body Report, Thailand – Customs and Fiscal Measures on Cigarettes
from the Philippines , WT/DS371/AB/R, adopted 15 July 2011 , DSR 2011:IV,
p. 2203
Turkey – Rice Panel Report, Turkey – Measures Affecting the Importation of Rice, WT/DS334/R,
adopted 22 October 2007, DSR 2007:VI, p. 2151
US – 1916 Act Appellate Body Report, United States – Anti-Dumping Act of 1916 ,
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X,
p. 4793
US – Certain EC Products Appellate Body Report, United States – Import Measures on Certain Products
from the European Communities, WT/DS165/AB/R, adopted 10 January 2001,
DSR 2001:I, p. 373
US – Clove Cigarettes Panel Report, United States – Measures Affecting the Production and Sale of
Clove Cigarettes , WT/DS406/R, adopted 24 April 2012, as modified by
Appellate Body Report WT/DS406/AB/R, DSR 2012:XI, p. 5865
US – COOL Panel Reports, United States – Certain Country of Origin Labelling (COOL)
Requirements, WT/DS384/R / WT/DS386/R, adopted 23 July 2012, as modified
by Appellate Body Reports WT/DS384/AB/R / WT/DS386/AB/R, DSR 2012:VI,
p. 2745
US – FSC (Article 21.5 –
EC)
Appellate Body Report, United States – Tax Treatment for "Foreign Sales
Corporations" – Recourse to Article 21.5 of the DSU by the
European Communities, WT/DS108/AB/RW, adopted 29 January 2002,
DSR 2002:I, p. 55
US – FSC (Article 21.5 –
EC)
Panel Report, United States – Tax Treatment for "Foreign Sales Corporations" –
Recourse to Article 21.5 of the DSU by the European Communities,
WT/DS108/RW, adopted 29 January 2002, as modified by Appellate Body Report
WT/DS108/AB/RW, DSR 2002:I, p. 119
US – Large Civil Aircraft (2nd
complaint) (Article 21.5 –
EU)
Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft
(Second Complaint) – Recourse to Article 21.5 of the DSU by the European Union,
WT/DS353/RW and Add.1, adopted 11 April 2019, as modified by Appellate Body
Report WT/DS353/AB/RW
US - Lead and Bismuth II Appellate Body Report, United States – Imposition of Countervailing Duties on
Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the
United Kingdom, WT/DS138/AB/R, adopted 7 June 2000, DSR 2000:V, p. 2595
US – Section 337 GATT Panel Report, United States – Section 337 of the Tariff Act of 1930, L/6439,
adopted 7 November 1989, BISD 36S/345
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton ,
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3
US – Wool Shirts and
Blouses
Appellate Body Report, United States – Measure Affecting Imports of Woven
Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and
Corr.1, DSR 1997:I, p. 323
US – Zeroing (Japan)
(Article 21.5 – Japan)
Appellate Body Report, United States – Measures Relating to Zeroing and Sunset
Reviews – Recourse to Article 21.5 of the DSU by Japan , WT/DS322/AB/RW,
adopted 31 August 2009, DSR 2009:VIII, p. 3441

EXHIBITS REFERRED TO IN THIS REPORT
Exhibit No. Short title
(where applicable) Title
IND-1 Senate Bill 5101 Substitute Senate Bill No. 5191, 2005, c 300
IND-3 Washington Administrative
Code, Section 458-20-273
Washington Administrative Code, WAC 458-20-273
IND-4 Senate Bill 5939 Substitute Bill 5939
IND-5 Revised Code of Washington, Chapter 82.16, revised by
Senate Substitute Bill 5939
IND-13 Assembly Bill No. 2267, Chapter 537, 21 February 2008
IND-15 2017 SGIP Handbook Self-Generation Incentive Program Handbook, Self-
Generation Incentive Program, 18 December 2017
IND-16 2016 SGIP Handbook Self-Generation Incentive Program Handbook, Self-
Generation Incentive Program, 8 February 2016
IND-18 Self-Generation Incentive Program, SGIP Approved CA
Suppliers, 22 April 2016
IND-31 Montana Annotated Code,
Section 15-70-502
Montana Code Annotated, Title 15, Chapter 70, Part 5
(Ethanol Tax Incentives and Administration), 15-70-502
IND-32 Montana Annotated Code,
Section 15-70-503
Montana Code Annotated, Title 15, Chapter 70, Part 5
(Ethanol Tax Incentives and Administration), 15-70-503
IND-33 Montana Annotated Code,
Section 15-70-401
Montana Code Annotated, Title 15, Chapter 70, Part 4
(Gasoline and Special Fuel Tax), 15-70-401
IND-34 Montana Annotated Code,
Section 15-70-522
Montana Code Annotated, Title 15, Chapter 70, Part 4
(Ethanol Tax Incentives and Administration), 15-70-522
IND-37 Montana Annotated Code,
Section 15-70-433
Montana Code Annotated, Title 15, Chapter 70, 15-70-
433
IND-42
 Connecticut Green Bank, Request for Qualification and
Program Guidelines, Residential Solar Investment
Program
IND-43 Michigan Public Act No. 295 State of Michigan, Senate Bill No. 213
IND-44 Michigan Public Act No. 342 State of Michigan, Senate Bill No. 438
IND-48 Michigan Case No. U-15800,
Temporary Order
State of Michigan, Case No. U-15800, Michigan Public
Service Commission-Temporary Order
IND-54
Delaware Code, Title 26,
Chapter 1, Subchapter III-A
Renewable Energy Portfolio Standards Act, 2005 as
incorporated in Delaware Code, Title 26, Chapter 1,
Subchapter III-A
IND-55 Rules and Procedures to Implement the Renewable
Energy Portfolio Standard
IND-58 Recommendations of the
Renewable Energy Taskforce
State of Delaware, Recommendations on the Renewable
Energy, May 2011
IND-66 2016 Minnesota Statutes,
Chapter 216C
Minnesota Statutes, Chapter 216C. Energy Planning and
Conservation
IND-90
Michigan Case No. U-15900,
Michigan Public Service
Commission – Order and Notice
of Hearing, 27 April 2010
State of Michigan, Case No. U-15900, Michigan Public
Service Commission – Order and Notice of Hearing, 27
April 2010
IND-91
Rate Book for Electric Service
adopted by Consumers Energy
Company and approved by the
Michigan Public Service
Commission
Consumer Energy Company, "Rate Book for Electric
Service" Fourth Revised Sheet No. C-48.10, MPSC
No.13 at Sheet Number C-48-10
IND-95 PJM GATS, How do I sell RECs?
IND-100 Senate Session Laws, Chapter 94, S.F. 1456
IND-110 2016 Minnesota Statutes, Chapter 216C,
Section 216C.416
IND-116 Assembly Bill 2267 Sec. 5. (Amends) - Chaptered
(Stats.2008 Ch.537)
IND-117 California Assembly Bill
No. 1637
Assembly Bill 1637 Section 1. (Amends) - Chaptered
(Stats.2016 Ch.658)
IND-123 Montana Annotated Code,
Section 15-70-434
15-70-434. Approval or rejection of claim, Montana
Annotated Code
IND-124
General Statutes of
Connecticut, Section 16-245ff
Section 16-245 - Licensing of electric suppliers.
Procedures. Penalties. Registration of electric
aggregators. Procedures. Penalties. 2016 Connecticut
General Statutes

Exhibit No. Short title
(where applicable) Title
IND-127
Application for Certification Application for Certification of BONUS(es) to an existing
Eligible Energy Resource Under the Delaware
Renewable Energy Portfolio Standard
IND-132 Amended version of Chapter 82.16 of the Revised Code
of Washington
US-10 Montana Department of Transportation Records
US-11 Montana Code Annotated, 15-32-703 (2017)
US-12
 Montana Department of Revenue Memorandum on
Biodiesel Blending and Storage Tax Credit (April 19,
2018)
US-20
 Michigan Public Service Commission, Annual Report of
Implementation of PA 295 Renewable Energy Standard
and the Cost-Effectiveness of the Energy Standards
(February 15, 2017)
US-28
 Minnesota Department of Commerce Guidance for
Completing the Made in Minnesota Solar Incentive
Application - A 2017 Reference Guide for Applicants
(December 30, 2016)

ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
AES Advanced Energy Storage Technologies
CPUC California Public Utilities Code
CRSIP Connecticut Residential Solar Investment Program
CSHWP Massachusetts Clean Energy Centre's Commonwealth Solar Hot Water Program
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
EPBB Expected Performance-Based Buydowns
GATT 1994 General Agreement on Tariffs and Trade 1994
LADWP Los Angeles Department of Water and Power
LAMC Adder Los Angeles Manufacturing Credit Adder
MCA Montana Annotated Code
MSIP Made in Minnesota Solar Incentive Program
MWhs Megawatt-hours
NAICS North American Industry Classification System
PBI Performance-Based Incentives
PO Purchase Order
PPA Power Purchase Agreement
PURA Connecticut Public Utilities Regulatory Authority
PV Photovoltaic
RCW Revised Code of Washington
RECIP Washington Renewable Energy Cost Recovery Incentive Payment Program
REC Renewable Energy Credits
REPSA Delaware Renewable Energy Portfolio Standards Act
RESPM Renewable Energy Standards Program in the State of Michigan
SCM Agreement Agreement on Subsidies and Countervailing Measures
SEPI Minnesota Solar Energy Production Incentive
SGIP California Self-Generation Incentive Program
SREC Solar Renewable Energy Credit
TIEP Montana Tax Incentive for Ethanol Production
TRIMs Trade-related investment measures
TRIMs Agreement Agreement on Trade-Related Investment Measures
USD United States Dollar
WAC Washington Administrative Code
WTO World Trade Organization

1 INTRODUCTION
1.1 Complaint by India
1.1. On 9 September 2016, India requested consultations with the United States concerning the
measures and claims set out below. India's consultations request was made pursuant to Articles 1
and 4 of the Understanding on Rules and Procedures Governing the Settl ement of Disputes (DSU),
Article XXIII:1 of the General Agreement on Tariffs and Trade 1994 ( GATT 1994), Article 8 of
the Agreement on Trade-Related Investment Measures ( TRIMs Agreement), and Articles 4, 7 and
30 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement).1
1.2. Consultations were held on 16 and 17 November 2016 between India and the United States.
These consultations failed to resolve the dispute.2
1.2 Panel establishment and composition
1.3. On 17 January 2017, India requested the establ ishment of a panel pursuant to Articles 4.7
and 6 of the DSU, Article XXIII of the GATT 1994, Articles 4.4 and 30 of the SCM Agreement, and
Article 8 of the TRIMs Agreement.3 At its meeting on 21 March 2017, the Dispute Settlement Body
(DSB) established a panel pursuant to the request by India, in accordance with Article 6 of the DSU.4
1.4. The Panel's terms of reference are the following:
To examine, in the light of the relevant provisions of the covered agreements cited by
the parties to the dispute, the matter referred to the DSB by India in document
WT/DS510/2 and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements.5
1.5. Brazil, China, the European Union, Indonesia, Japan, the Republic of Korea, Norway,
the Russian Federation, the Kingdom of Saudi Arabia, Singapore, Chinese Taipei, and Turkey
reserved their rights to participate in the proceedings as third parties.6
1.6. On 11 April 2018, India requested the Director -General to determine the composition of the
panel, pursuant to Article 8.7 of the DSU.7
1.7. On 24 April 2018, the Director-General accordingly composed the panel as follows8:
Chairperson: Mr Alberto Juan Dumont

Members: Ms Penelope Jane Ridings
Mr Miguel Rodriguez Mendoza

1.3 Panel proceedings
1.3.1 General
1.8. On 15 May 2018, the Panel transmitted draft working procedures and a draft timetable to the
parties. The Panel held an organizational meeting with the parties on 22 May 2018.
1.9. Following consultations with the parties, t he Panel adopted its Working Procedures and
timetable on 6 June 2018. Upon India's request and in line with the United States' comments
thereon, these Working Procedures were amended on 27 June 2018, to extend the deadlines for

1 Request for consultations by India, WT/DS510/1 (India's consultation request).
2 Request for the establishment of a panel by India, WT/DS510/2 (India's panel request).
3 India's panel request, WT/DS510/2.
4 DSB, Minutes of the meeting held on 21 March 2017, WT/DSB/M/394.
5 Constitution note of the Panel, WT/DS510/3, para. 2.
6 Constitution note of the Panel, WT/DS510/3, para. 5.
7 Constitution note of the Panel, WT/DS510/3, para. 3.
8 Constitution note of the Panel, WT/DS510/3, para. 4.

submitting non-confidential summaries of the parties' submissions by aligning the due dates with
the due dates for submitting integrated executive summaries .9 The Panel further amended its
timetable on 31 January 2019, following consultations with the parties, in order to specify the dates
for the final stages of the proceedings.
1.10. India and the United States submitted their first written submissions to the Panel on 26 June
2018 and 7 August 2018 respectively. India subm itted a corrected version of its first written
submission on 16 July 2018. The Panel also received third party written submissions from some of
the third parties on 21 August 2018.10
1.11. The Panel held its first substantive meeting with the part ies on 9 and 10 October 2018.
A session with the third parties took place on the morning of 10 October 2018.
1.12. Following these meetings, the Panel sent written questions to the parties and third parties on
12 Octo ber 2018. The Panel received written responses from the parti es and some of the third
parties11 on 20 October 2018.
1.13. The parties submitted their first integrated executive su mmaries on 6 November 2018.
The third parties also submitted their integrated executive summaries on that day.12
1.14. The parties submitted their second written submissions on 27 November 2018.
1.15. The Panel held a second substantive meeting with the partie s on 22 January 2019.
Following this meeting, the Panel sent written questions to the par ties on 25 January 2019. The
Panel received written response s from the parties on 12 February 2019, and comments on each
other's written responses on 26 February 2019.
1.16. The parties submitted their second integrated executive summaries on 5 March 2019.
1.17. On 8 March 2019, the Panel issued the draft descriptive part of its Report to the parties.
The parties provided written comments on this document on 20 March 2019.
1.18. The Panel issued its Interim Report to the parties on 25 April 2019. The parties submitted
written requests for the Panel to review precise aspects of the In terim Report on 9 May 2019, and
on 23 May 2019 the United States submitted written comments on some of India's requests.
1.19. The Panel issued its Final Report to the parties on 6 June 2019.
1.3.2 Preliminary ruling on the Panel's terms of reference
1.20. On 7 August 2018, as part of its first written submission, the United States requested the
Panel to make a preliminary ruling to exclude from the Panel's terms of reference four of the
measures challenged by India.13
1.21. On 9 August 2018, the Panel provided the third parties with an opportunity to comment on
the United States' request jointly with their third party written subm issions. On 21 August 2018,
the Panel received third party written submissions from some of the third parties addressing, inter
alia, the preliminary issues raised by the United States.14
1.22. On 16 August 2018, India responded to the United States' preliminary ruling request.

9 See Panel's Working Procedures in Annex A-1.
10 Specifically, the Panel received third party written submissions from Brazil, the European Union, and
Japan.
11 Specifically, the Panel received written responses from Brazil, the European Union, Japan, and
Norway.
12 Specifically, the Panel received executive summaries from Brazil, China, the European Union, Japan,
and Norway.
13 United States' first written submission, paras. 20-74.
14 Specifically, the European Union and Japan commented on the United States' request in their third
party written submissions.

1.23. On 20 August 2018, the Panel requested certain additional information and clarifications from
India. On 23 August 2018, India responded to such request. On the same date, the United States
commented on India's response to the United States' requests for a preliminary ruling.
1.24. On 27 September 2018, the Panel issued its preliminary ruling to t he parties and the third
parties, with an indication that the ruling would form an integral part of the Panel's report, subject
to any editorial corrections. The Panel found that two of the measures challenged by India
(the Los Angeles Manufacturing Credit Adder and Massachusetts Manufacturer Adder) do not fall
within its terms of reference. The Panel also found that the two other measures challenged by India
(the solar thermal and solar photovoltaic rebates under the Minnesota Solar Incentive Program) are
within its terms of reference. 15 The Panel's preliminary ruling is reproduced in Annex D-1 of this
Report.
2 FACTUAL ASPECTS
2.1. This section of the Report provides a descriptive overview of the factual as pects of the
measures at issue in this dispute.
2.2. India identified 11 measures in its panel request, as follows:
1) "Incentives granted and/or maintained contingent upon the use of domestic over imported
goods under Renewable Energy Cost Recovery Incentive Paym ent Program ( 'RECIP') in
the State of Washington";

2) "Incentives granted and/or maintained contingent upon the use of domestic over imported
goods under Self-Generation Incentive Program ('SGIP') in the State of California";

3) "Incentives granted and/or maintained contingent upon the use of domestic over imported
goods under Los Angeles De partment of Water and Power's (' LADWP') Solar Incentive
Program in the State of California";

4) "Incentives granted and/or maintained contingent upon the use of domestic over imported
goods under Montana Tax Incentive for Ethanol Production ( 'TIEP') in the State of
Montana";

5) "Incentives granted and/or maintained contingent upon the use of domestic over imported
goods under Montana Tax Credit for Biodiesel Blending and Storage in the State of
Montana";

6) "Incentives granted and/or maintained contingent upon the use of domestic over imported
goods through refund for Taxes paid on Biodiesel by Distributor or Retailer in the State of
Montana";

7) "Incentives granted and/or maintained contingent upon the use of domestic over imported
goods under Connecticut Residential Solar Investment Program ( 'CRSIP') in the State of
Connecticut";

8) "Incentives granted and/or maintained contingent upon the use of domestic over imported
goods through the Renewable Energy Credits in the State of Michigan";

9) "Incentives granted and/or maintained contingent upon the use of domestic over imported
goods through the Delaware Solar Renewable Energy Credits in the State of Delaware";

10) "Incentives granted and/or maintained contingent upon the use of domestic over imported
goods under Made in Minnesota Solar Incentive Program ( 'MSIP') in the State of
Minnesota"; and

15 Preliminary ruling of the Panel, paras. 3.49 and 4.37, Annex D-1.

11) "Incentives granted and/or maintained contingent upon the use of domestic over imported
goods under Massachusetts Clean Energy Centre's Commonwe alth Solar Hot Water
Program, ('CSHWP') in the State of Massachusetts".16

2.3. India's panel request also purports to cover, in respect of all the challenged measures,
"any amendments, modifications, repla cements, successor, and extensions thereto, and any
implementing measure or any other related measures thereto".17
2.4. As noted above, we have found in our preliminary ruling that Measure 3 ( Los Angeles
Manufacturing Credit Adder) and Measure 11 (Massachusetts Manufacturer Adder) are outside our
terms of reference. We do not cover those measures in the following description of the measures at
issue.18
2.5. For ease of reference, as regards the measures at issue falling within our terms of reference ,
we use the following numbering and long and short titles, based on those used by India in its first
written submission.19
No. Full name Short name
1
Washington Renewable Energy Cost Incentive Program
(RECIP): Additional incentive for use of components
manufactured in Washington State
Washington State additional
incentive
2
California Self-Generation Incentive Program (SGIP):
Additional benefits for use of equipment manufactured
in California
California Manufacturer Adder
4 Montana tax incentive for ethanol production Montana tax incentive
5 Montana tax credit for biodiesel blending and storage Montana tax credit
6 Montana tax refund for biodiesel Montana tax refund
7
Connecticut Residential Solar Investment Program
(CRSIP): Additional incentives for use of components
manufactured in Connecticut
Connecticut additional
incentive
8
Renewable Energy Standards Program in the State of
Michigan (RESP): Additional benefits for use of
equipment manufactured in Michigan or using workforce
from residents in Michigan
Michigan Equipment Multiplier
/ Michigan Labour Multiplier
9
Delaware Renewable Energy Portfolio Standards Act
(REPSA): Additional benefits for use of equipment
manufactured in Delaware or using workforce from
residents in Delaware
Delaware Equipment Bonus /
Delaware Workforce Bonus
10
Minnesota solar energy production incentive SEPI
Minnesota solar thermal rebate Minnesota solar thermal rebate
Minnesota solar photovoltaic rebate Minnesota solar PV rebate

2.6. We now turn to describe the pertinent factual aspects of each of these measures in detail.
2.1 Measure 1: Washington State additional incentive
2.7. The Washington Renewable Energy Cost Recovery Incentive Program (RECIP) 20 provides
"incentive payments[s] based on production to offset the costs associated with the purchase of
renewable energy systems … that generate electricity". 21 Under the program, individuals,
businesses, local government entities (other than entities in the light and power or gas distribution

16 India's panel request, WT/DS510/2.
17 India's panel request, WT/DS510/2, pp. 2-10.
18 For a description of each of the 11 measures challenged in India's panel request, see the preliminary
ruling of the Panel, Annex D-1.
19 These names are used without prejudice to the legal characterization of any of the measures under
any of the WTO covered agreements. For ease of reference, we refer to the three programs comprising
Measure 10 collectively as the "Minnesota production incentives and rebates".
20 Senate Bill 5101, Section 3(1) (Exhibit IND-1), as extended by Senate Bill 5939, Section 3(1)(a)
(Exhibit IND-4).
21 Washington Administrative Code, Section 458-20-273(1) (Exhibit IND-3).

business22), and participants in community solar projects23 are eligible to receive annual payments
for energy they produce through a customer -generated electricity renewable energy system. 24
These payments are paid out by the light and power business serving the area where the customer-
generated electricity renewable energy system is located. 25 The light and power business is then
entitled to a credit against its public utility taxes equal to the amount paid out in incentives, subject
to certain conditions.26 Participation by light and power businesses in RECIP is voluntary.27 Between
2005 and 2017, the program was administered by the Washington D epartment of Revenue.
In October 2017, program management, technical review, an d tracking responsibilities of the
Department of Revenue were transferred to the Washington State University extension energy
program.28
2.8. Within the context of the RECIP, additional incentives are provided to customer -generated
electricity produced using sol ar inverters29, solar modules30, stirling converters31, or wind blades 32
manufactured in Washington State.
2.9. In order to qualify for the Washington State additional incentive, relevant manufacturers must
make a request to the Department of Revenue. Following a field visit to the manufacturing facilities,
the Department of Revenue will approve or disapprove the manufacturer's certification of a product
qualifying as "made in Washington " State.33 In determining whether "a person combining various
items into a single package is engaged in a manufacturing activity" in Washington State, the

22 "Light and Power Business" is defined as "the business of operating a plant or system of generation,
production or distribution of electrical energy for hire or sale and/or for the wheeling of electricity for others".
See Washington Administrative Code, Section 458-20-273, Part I, Sub-Section 107 (Exhibit IND-3).
23 "Community Solar Project" means any one of the three definitions contained in Section 458-20-273,
Part I, Sub-Section 103 of the Washington Administrative Code: "(a) A solar energy system located in
Washington State that is capable of generating up to seventy five kilowatts of electricity and is owned by local
individuals, households, nonprofit organizations, or nonutility businesses that is placed on the property owned
in fee simple by a cooperating local governmental entity that is not in the light and power business or in the
gas distribution business; (b) A utility owned solar energy system located in Washington State that is capable
of generating up to seventy five kilowatts of electricity and that is voluntarily funded by the utility's ratepayers
where, in exchange for their financial support, the utility gives contributors a payment or credit on their utility
bill for their share of the value of the electricity generated by the solar energy system; (c) A solar energy
system located in Washington State, placed on the property owned in fee simple by a cooperating local
governmental entity that is not in the light and power business or in the gas distribution business, that is
capable of generating up to seventy five kilowatts of electricity, and that is owned by a company whose
members are each eligible for a cost recovery incentive payment for the same customer generated electricity
as defined in (105) of this part".
24 "Customer-generated electricity" is defined as "a community solar project or the current generated
from a renewable energy system located in Washington State and installed on an individuals', business', or
local government's property". See Washington Administrative Code, Section 458-20-273, Part I, Sub-
Section 105 (Exhibit IND-3).
25 Senate Bill 5101, Section 3(1) (Exhibit IND-1), as extended by Senate Bill 5939, Section 3(1)(a)
(Exhibit IND-4).
26 Senate Bill 5101, Section 4 (Exhibit IND-1), and Washington Administrative Code, Section 458-20-
273, Part VII, Sub-Section 710 (Exhibit IND-3).
27 Washington Administrative Code, Section 458-20-273, Part II, Sub-Sections 204 and 205
(Exhibit IND-3).
28 Senate Bill 5939, Section 3(9) (Exhibit IND-4).
29 "Solar inverter" is defined in as "a device used to convert direct current to alternating current in a
solar energy system". See Washington Administrative Code, Section 458-20-273, Part VI, Sub-Section 601(a)
(Exhibit IND-3).
30 "Solar module" is defined as "the smallest non-divisible self-contained physical structure housing
interconnected photovoltaic cells and providing a single direct current electrical output. The lamination of the
modules must occur in Washington state". See Washington Administrative Code, Section 458-20-273, Part VI,
Sub-Section 601(a) (Exhibit IND-3).
31 "Stirling converter" is defined as "a device that produces electricity by converting heat from a solar
source utilizing a stirling engine". See Washington Administrative Code, Section 458-20-273, Part VI, Sub-
Section 601(a) (Exhibit IND-3).
32 "Wind blade" is defined as "the portion of the rotor component of wind generator equipment that
converts wind energy to low speed rotational energy". See Washington Administrative Code, Section 458-20-
273, Part VI, Sub-Section 601(a) (Exhibit IND-3).
33 Washington Administrative Code, Section 458-20-273, Part VI, Sub-section 601(b) (Exhibit IND-3).

Department of Revenue considers various factors, no one of which is conclusive evidence of a
manufacturing activity.34
2.10. The amount of the incentive payment is calculated in two steps. First, the incentive payment
rate must be determined by multiplying the relevant base rate 35 by the applicable "economic
development factors".36 Second, once the incentive payment rate has been calculated, the incentive
payment is determined by multiplying the kilowatt-hours generated through the relevant renewable
energy system by the incentive payment rate.37
2.11. The "economic development factors" applied on the relevant base rate in order to determine
the incentive payment rate are as follows:
 Equipment Factor applied on the base
rate
For energy
produced
using …
…solar modules or solar stirling converters
manufactured in Washington State 2.4
…solar or wind generator equipped with an
inverter manufactured in Washington State 1.2
…an anaerobic digester, or by other solar
equipment or using a wind generator equipped
with blades manufactured in Washington State
1
…wind with any other equipment other than
those mentioned above 0.8

2.12. The applicable economic development factors are adde d together if a renewable energy
system has (i) both a module and an inverter manufactured in Washington State; (ii) both a stirling
converter and an inverter made in Washington State; or (iii) both blades and an inverter made in
Washington State.38 For electricity produced using solar modules or stirlings manufactured out -of-
state, no economic development factor is applied.
2.13. The Washington State additional incentive challenged by India is provided for in
Section 82.16.110 to 82.16.130 of the Revised Code of Washington (RCW)39, and Section 458-20-
273 of the Washington Administrative Code (WAC)40. Certain parts of Chapter 82.16 of the Revised
Code of Washington were modified by Senate Bill 5939 in July 2017, following the establishment of
the Panel.41 In particular, following our first substantive meeting with the parties, India brought to
our attention Section 6(12) of the Senate Bill 5939, which adds a new section to Chapter 82.16 of
the Revised Code of Washington. 42 This new section, incorporated as Section 82.16.165, provides
for "[a] made -in-Washington bonus rate … for a renewable energy system or a community solar
project with solar modules made in Washington or with a wind turbine or tower that is made in

34 The factors are the following: (i) The ingredients are purchased from various suppliers; (ii) The
person combining the ingredients attaches his or her own label to the resulting product; (iii) The ingredients
are purchased in bulk and broken down to smaller sizes; (iv) The combined product is marketed at a
substantially different value from the selling price of the individual components; and (v) The person combining
the items does not sell the individual items except within the package. See Washington Administrative Code,
Section 458-20-273, Part VI, Sub-section 601(b) (Exhibit IND-3).
35 For community solar projects, the base rate is 30 cents per kilowatt-hour generated by the relevant
renewable energy system. For all others, 15 cents per kilowatt-hour generated by the relevant renewable
energy system, up to USD 5000 per year. See Washington Administrative Code, Section 458-20-273, Part V,
Sub-Section 501(a) (Exhibit IND-3).
36 For details concerning the value of the applicable economic development factors, see paragraph 2.11
below.
37 Washington Administrative Code, Section 458-20-273, Part V, Sub-Section 501 (Exhibit IND-3).
38 Washington Administrative Code, Section 458-20-273, Part V, Sub-Section 501(c) (Exhibit IND-3).
39 Revised Senate Bill 5939 (Exhibit IND-5).
40 Washington Administrative Code, Section 458-20-273 (Exhibit IND-3).
41 Senate Bill 5939 (Exhibit IND-4).
42 India's response to Panel question No. 1. See also Senate Bill 5939 (Exhibit IND-4) and amended
version of Chapter 82.16 of the Revised Code of Washington (Exhibit IND-132).

Washington".43 The extent to which this incentive is distinct44 from the Washington State additional
benefit identified by India in its panel request is unclear .45 We discuss the relevance of this
amendment to Chapter 82.16 of the Revised Code of Washington , if any, in further detail in our
findings.
2.2 Measure 2: California Manufacturer Adder
2.14. The California Self-Generation Incentive Program (SGIP) provides for the payment of financial
incentives for the installation of qualifying new technologies that are installed to meet all or a portion
of the electric energy needs of a facility. 46 It was approved by the California Public Utilities
Commission and is administered by four investor-owned utilities, which issue a handbook from time
to time establishing the policies and procedures of th e SGIP.47 Within the context of the SGIP, an
additional incentive of 20% is provided to any retail electric or gas distribution customer (industrial,
agricultural, commercial, or residential) of certain providers for the installation of eligible distributed
generation resources "from a California Supplier"48 or "manufactured in California".49
2.15. The 2016 SGIP Handbook was replaced by the 2017 SGIP Handbook following the
establishment of the Panel.50 The 2017 SGIP Handbook introduced two main changes with respect
to the measure at issue: (i) it replaced the " California Supplier"51 requirement with a "California
Manufacturer" requirement, and (ii) it modified the specific renewable energy technology types
eligible for the incentive.
2.16. The 2016 SGIP Handbook defines the term "California Supplier" as follows:
Any sole proprietorship, partnership, joint venture, corporation, or other business entity
that manufactures eligible distributed generation resources in California and that meets
either of the following criteria:
A. The owners or policymaking officers are domiciled in California and the permanent
principal office, or place of business from which the supplier's trade is directed or
managed, is located in California;
B. A business or corporation, including those owned by, or under common control of, a
corporation, that meets all of the following criteria continuously during the five years

43 Amended version of Chapter 82.16 of the Revised Code of Washington, Section 82.16.165 (12)
(Exhibit IND-132).
44 The Washington State additional benefit identified by India in its panel request is provided for in
Sections 82.16.110 to 82.16.130 of the Revised Code of Washington, whereas the "made-in-Washington
bonus" is contained in a different section of that Code (i.e. Section 82.16.165), and was inserted by Senate
Bill 5939 (Exhibit IND-5).
45 The incentive in Section 82.16.165 of the Revised Code of Washington "beg[a]n" on 1 July 2017,
i.e. following India's panel request. It relates to solar modules and wind turbine or towers made in Washington
State, as opposed to the Washington State additional incentive that relates to solar inverters, solar modules,
stirling converters, or wind blades manufactured in Washington State. The bonus rates set forth in
Section 82.16.165 of the RCW range from US$0.05 in 2018 to US$0.02 in 2021, "depending on the fiscal year
in which the system is certified". Also, pursuant to paragraph 3(a) of Section 82.16.165, "[n]o new certification
may be issued under this section to an applicant who submits a request for or receives an annual incentive
payment for a renewable energy system that was certified under RCW 82.16.120 …". See also amended
version of Chapter 82.16 of the Revised Code of Washington, Section 82.16.165 (12) (Exhibit IND-132).
46 2016 SGIP Handbook, p. 8 (Exhibit IND-16) and 2017 SGIP Handbook, p. 9 (Exhibit IND-15).
47 Pacific Gas and Electric, Southern California Edison, the Southern California Gas Company, and the
Center for Sustainable Energy®. See 2016 SGIP Handbook, p. 8 (Exhibit IND-16) and 2017 SGIP Handbook,
p. 9 (Exhibit IND-15).
48 See Assembly Bill No. 2267, Chapter 537, 21 February 2008 (Exhibit IND-13) and that same bill
chaptered into California's Public Utility Code in 2008. See Assembly Bill 2267 Sec. 5. (Amends) - Chaptered
(Stats.2008 Ch.537) (Exhibit IND-116).
49 California Assembly Bill No. 1637 (Exhibit IND-117).
50 We discuss the significance of this below in our findings.
51 The 2016 SGIP Handbook refers to "California Supplier", which was the term used in a prior version of
Section 379.6 of the California Public Utilities Code. See Assembly Bill No. 2267, Chapter 537, 21 February
2008 (Exhibit IND-13).

prior to providing eligible distributed generation resources to a self-generation incentive
program recipient:
• Owns and operates a manufacturing facility located in California that builds or
manufactures eligible distributed generation resources.
• Is licensed by the state to conduct business within the state.
• Employs California residents for work within the state.52
2.17. The 2017 SGIP Handbook establishes that, for distributed generation resources to qualify as
manufactured in California, at least 50% of their capital equipment value must be manufactured by
an approved "California Manufacturer ".53 The term "California Manufacturer" is defined as a
manufacturer who: (i) operates a manufacturing facility in California; (ii) is licensed to conduct
business in California; and (iii) is registered with a primary or secondary manufacturing North
American Industry Classification System (NAICS) Code.54
2.18. Under t he 2016 SGIP Handbook , the term "eligible distributed generation resources"
encompasses "distributed generation or Advanced Energy Storage (AES) technologies". 55
The 2017 SGIP Handbook refers, instead, to "generation equipment (Generator/Pr ime Mover and
ancillary equipment) and energy storage equipment (storage medium -i.e. battery -, inverter,
controller)."56
2.19. The California Manufacturer Adder challenged by India is provided for in Section 379.6 of the
California Public Utilities Code and developed in the relevant SGIP Handbook.57
2.3 Measure 4: Montana tax incentive
2.20. The Montana tax incentive is a program that provides a "tax incentive for the production of
ethanol to be blended for ethanol -blended gasoline".58 More specifically, it provides that "ethanol
distributors", defined as "any person who, for the purpose of making ethanol -blended gasoline,
engages in the business of producing ethanol for sale, use, or distribution" 59, may receive "tax
incentives"60 on ethanol 61 produced "in Montana from Montana agricultural products, including
Montana wood or wood products"62, where such ethanol63:
a) is to be blended with gasoline for sale as an ethanol-blended gasoline64 in Montana;

52 Assembly Bill No. 2267, Chapter 537, 21 February 2008, Section 5 (Exhibit IND-13). See also 2016
SGIP Handbook, pp. 34-35. A list of approved "California Suppliers" for SGIP purposes is available in Self-
Generation Incentive Program, SGIP Approved CA Suppliers, 22 April 2016 (Exhibit IND-18).
53 2017 SGIP Handbook, p. 25 (Exhibit IND-15).
54 2017 SGIP Handbook, p. 25 (Exhibit IND-15).
55 2016 SGIP Handbook, p. 34 (Exhibit IND-16). AES technologies are defined as those technologies
able to store energy that can be discharged as useful energy at another time in order to directly supply
electricity or offset electricity consumption. Unless specified otherwise, AES in the 2016 SGIP Handbook applies
to all eligible storage technologies, including mechanical, chemical, or thermal energy storage. See 2016 SGIP
Handbook, p. 76 (Exhibit IND-16).
56 2017 SGIP Handbook, p. 26 (Exhibit IND-15). See also India's response to Panel question No. 109.
57 Assembly Bill No. 2267, Chapter 537, 21 February 2008 (Exhibit IND-13), Assembly Bill 2267 Sec. 5.
(Amends) - Chaptered (Stats.2008 Ch.537) (Exhibit IND-116), and California Assembly Bill No. 1637
(Exhibit IND-117).
58 Montana Annotated Code, Section 15-70-502 (Exhibit IND-31).
59 Montana Annotated Code, Section 15-70-503 (Exhibit IND-32).
60 Montana Annotated Code, Section 15-70-522 (Exhibit IND-34).
61 "Ethanol" is defined as "nominally anhydrous ethyl alcohol that has been denatured as specified in
27 CFR, parts 20 and 21, and that meets the standards for ethanol adopted pursuant to [Section] 82-15-103
[of the Montana Annotated Code]". See Montana Annotated Code, Section 15-70-401(9) (Exhibit IND-33).
62 Montana Annotated Code, Section 15-70-522 (Exhibit IND-34).
63 Montana Annotated Code, Section 15-70-522 (Exhibit IND-34).
64 "Ethanol-blended gasoline" is defined as "gasoline blended with ethanol. The percentage of ethanol in
the blend is identified by the letter 'E' followed by the percentage number. A blend that is 10% denatured

b) was exported65 from Montana to be blended with gasoline for sale as ethanol -based
gasoline; or
c) is to be used in the production of ethyl butyl ether for use in reformulated gasoline.
2.21. The incentive is also payable on ethanol made using non-Montana agricultural products "when
Montana products are not available".66
2.22. The incentive is available to a "facility" for six years from the date on which it begins producing
ethanol, subject to certain administrative and documentary requirements.67 It is payable at the rate
of 20 cents per gallon of distilled ethanol that is 100% produced from Montana products. The amount
of the incentive is reduced proportionately based on the amount of agricultural or wood products not
produced in Montana.68 However, to receive the incentive, the ethanol must be made from at least
the following minimum percentages of Montana products69:
a) 20% Montana product in the first year of production;
b) 25% Montana product in the second year of production;
c) 35% Montana product in the third year of production;
d) 45% Montana product in the fourth year of production;
e) 55% Montana product in the fifth year of production; and
f) 65% Montana product in the sixth year of production.
2.23. The Montana tax incentive is administered by the Montana Department of Transportation. 70
It is set out in Sections 15-70-50271, 15-70-50372, and 15-70-522 of the Montana Annotated Code.73
Further details concerning the administration and implementation of the incentive, including with
respect to the application form, are set out at Sections 18.15.701 to 18.15.703 and 18.15.710 to
18.15.712 of the Administrative Rules of Montana.
2.4 Measure 5: Montana tax credit
2.24. The Montana tax credit provides for an "individual, corporation, partnership, or small business
corporation" to receive a "credit against [certain] taxes … for the costs of investments in depreciable
property used for storing or blending biodiesel with petroleum diesel for sale".74 The credit may be
claimed for such costs "incurred in the 2 tax years before the taxpayer begins blending biodiesel fuel

ethanol and 90% gasoline would be reflected as E10. A blend that is 85% denatured ethanol and 15% gasoline
would be reflected as E85". See Montana Annotated Code, Section 15-70-401(10) (Exhibit IND-33).
65 "Export" is defined as "to transport out of Montana, by any means other than in the fuel supply tank
of a motor vehicle, gasoline or special fuel received from a refinery or pipeline terminal within Montana". See
Montana Annotated Code, Section 15-70-401(11) (Exhibit IND-33).
66 Montana Annotated Code, Section 15-70-522 (Exhibit IND-34).
67 Montana Annotated Code, Section 15-70-522(2) (Exhibit IND-34). The term "facility" is not defined in
the relevant sections of the Montana Annotated Code submitted to the Panel.
68 Montana Annotated Code, Section 15-70-522(2) (Exhibit IND-34).
69 Montana Annotated Code, Section 15-70-522(3)(c) (Exhibit IND-34).
70 Montana Annotated Code, Section 15-70-502 (Exhibit IND-31).
71 Montana Annotated Code, Section 15-70-502 (Exhibit IND-31).
72 Montana Annotated Code, Section 15-70-503 (Exhibit IND-32).
73 Montana Annotated Code, Section 15-70-522 (Exhibit IND-34).
74 Montana Annotated Code, Section 15-32-703(1) (Exhibit US-11). "Biodiesel" as used in this Section is
defined as meaning "a fuel produced from monoalkyl esters of longchain fatty acids derived from vegetable
oils, renewable lipids, animal fats, or any combination of those ingredients. The fuel must meet the
requirements of ASTM D6751, also known as the Standard Specification for Biodiesel Fuel (B100) Blend Stock
for Distillate Fuels, as adopted by the American society for testing and materials". See Montana Annotated
Code, Section 15-32-703(9) (Exhibit US-11) (providing that the term "biodiesel" shall have the same meaning
as it has in Montana Annotated Code, Section 15-70-401 (Exhibit IND-33)).

for sale, or in any tax year in which the taxpayer is blending biodiesel fuel for sale".75 Any credit not
used in the year in which it is received may be carried forward for up to seven years, subject to
certain requirements.76
2.25. Two categories of applicants are eligible to receive the credit: (i) special fuel distributors; and
(ii) owners or opera tors of a motor fuel outlet. To be eligible for the credit, applicants must own,
lease, or otherwise have a beneficial interest in a business that blends biodiesel. 77 The former
category of applicant is eligible to receive a maximum tax credit in the amount of 15% of the costs
of investments in depreciable property used for storing or blending biodiesel with petroleum diesel
for sale, up to a total of USD 52,500. The latter category is eligible to receive a maximum tax credit
in the amount of 15% of the relevant costs, up to a total of USD 7,500.78
2.26. Importantly, a special fuel distributor or owner or operator of a motor fuel outlet will only be
eligible to receive the tax credit if, inter alia79, the investment in respect of which the credit is claimed
is "used primarily to blend petroleum diesel with biodiesel made entirely from Montana -produced
feedstocks".80
2.27. The Montana tax credit is administered by the Montana Department of Revenue. 81 It is set
out in section 15-32-703 of the Montana Annotated Code.82
2.5 Measure 6: Montana tax refund
2.28. The Montana tax refund establishes two tax refund programs.
2.29. First, it provides for "licensed distributors" 83 who pay a "special fuel tax" 84 on biodiesel85 to
receive a refund equal to two cents per gallon on biodiesel sold during the previous quarter if such

75 Montana Annotated Code, Section 15-32-703(2) (Exhibit US-11).
76 Montana Annotated Code, Section 15-32-703(6) (Exhibit US-11).
77 Montana Annotated Code, Section 15-32-703(4)(c)(i) and (d) (Exhibit US-11).
78 Montana Annotated Code, Section 15-32-703(3) (Exhibit US-11). "If more than one person has an
interest in a business with qualifying property, they may allocate all or any part of the investment cost among
themselves and their successors or assigns [sic]." Montana Annotated Code, Section 15-32-703(4)(c)(ii)
(Exhibit US-11). However, "where the applicant is a shareholder of an electing small business corporation, the
credit must be computed using the shareholder's pro rata share of the corporation's cost of investing in the
biodiesel blending facility". Montana Annotated Code, Section 15-32-703(8) (Exhibit US-11).
79 Certain additional requirements not relevant to the present dispute are further enumerated in
Montana Annotated Code, Section 15-32-703(4) (Exhibit US-11).
80 Montana Annotated Code, Section 15-32-703(4)(a) (Exhibit US-11).
81 Montana Annotated Code, Section 15-32-703(10); Montana Department of Revenue, Memorandum on
Biodiesel Blending and Storage Tax Credit (19 April 2018) (Exhibit US-12).
82 Montana Annotated Code, Section 15-32-703 (Exhibit US-11).
83 The term "distributor" is defined as:

(i) a person who engages in the business in this state of producing, refining, manufacturing, or
compounding gasoline or special fuel for sale, use, or distribution;
(ii) an importer who imports gasoline or special fuel for sale, use, or distribution;
(iii) a person who engages in the wholesale distribution of gasoline or special fuel in this state and
chooses to become licensed to assume the Montana state gasoline tax or special fuel tax liability;
(iv) an exporter;
(v) a dealer licensed as of January 1, 1969, except a dealer at an established airport; or
(vi) a person in Montana who blends ethanol with gasoline.

See Montana Annotated Code, Section 15-70-401 (Exhibit IND-33). See also India's first written
submission, para. 532.
84 The relevant tax is specified in Montana Annotated Code, Section 15-70-403. See Montana Annotated
Code, Section 15-70-433(1) (Exhibit IND-37).
85 "Biodiesel" is defined as "a fuel produced from monoalkyl esters of longchain fatty acids derived from
vegetable oils, renewable lipids, animal fats, or any combination of those ingredients. The fuel must meet the
requirements of ASTM D6751, also known as the Standard Specification for Biodiesel Fuel (B100) Blend Stock
for Distillate Fuels, as adopted by the American society for testing and materials". See Montana Annotated
Code, Section 15-70-433(1) (providing that the term "biodiesel" shall have the same meaning as it has in
Montana Annotated Code, Section 15-70-401 (Exhibit IND-33)).

biodiesel is "produced entirely from biodiesel ingredients produced in Montana" .86 The term
"produced in Montana" is not further defined.
2.30. Second, it provides for "owners and operators of retail motor fuel outlets" 87 to receive a tax
refund equal to one cent per gallon "on biodiesel on which the special fuel tax has been paid and
that is purchased from a licensed distributor if the biodiesel is produced entirely from biodiesel
ingredients produced in Montana".88 Again, the term "produced in Montana" is not further defined.
2.31. The Montana tax refund is set out in section 15 -70-433 of the Montana Annotated Code 89,
and is administered by the Montana Department of Transportation.90
2.6 Measure 7: Connecticut additional incentive
2.32. The Connecticut Residential Solar Investment Program (CRSIP) is a "residential solar
investment program" designed to "result in a minimum of three hundred megawatts of new
residential solar photovoltaic installations". 91 Specifically, it makes available, through the
Connecticut Green Bank92, "direct financial incentives, in the form of performance-based incentives
or expected performance-based buydowns, for the purchase or lease of qualifying residential solar
photovoltaic systems".93
2.33. Two types of financial incentives are av ailable under the CRSIP: ( i) performance -based
incentives (PBI); and (ii) expected performance-based buydowns (EPBB).94
2.34. The first type of incentive, PBI, is available to a homeowner who acquires a solar photovoltaic
(PV) system under a third -party financing structure (i.e. by way of a lease or a power purchase
agreement (PPA)), rather than by purchasing it. The PBI itself is not paid to the homeowner installing
the PV system, but rather to the owner of the PV system (the System Owner) that is being leased.
It is paid over the course of 24 calendar quarters95, and is calculated based on actual production on
a per-kilowatt-hour basis.96 System Owners are expected to build the expected total PBI amount
into the lease or PPA rate charged to the homeowner.97 System Owners are required to use Eligible
Contractors to install their systems. However, a System Owner may itself apply to be an Eligible
Contractor.98

86 Montana Annotated Code, Section 15-70-433(1) (Exhibit IND-37).
87 This term is not defined in the relevant sections of the Montana Annotated Code submitted to the
Panel.
88 Montana Annotated Code, Section 15-70-433(2) (Exhibit IND-37).
89 Montana Annotated Code, Section 15-70-433 (Exhibit IND-37).
90 Montana Annotated Code, Section 15-70-434 (Exhibit IND-123).
91 General Statutes of Connecticut, Section 16-245ff(b) (Exhibit IND-124).
92 General Statutes of Connecticut, Section 16-245ff(b) (Exhibit IND-124). The Connecticut Green Bank
is established in General Statutes of Connecticut, Section 16-245n(d)(1)(A) as a "a body politic and corporate,
constituting a public instrumentality and political subdivision of the state of Connecticut established and
created for the performance of an essential public and governmental function". General Statutes of
Connecticut, Section 16-245n(d) (Exhibit IND-124).
93 General Statutes of Connecticut, Section 16-245ff(c) (Exhibit IND-124). The term "qualifying
residential solar photovoltaic system" is defined as "solar photovoltaic project that receives funding from the
Connecticut Green Bank, is certified by the authority as a Class I renewable energy source, as defined in
subsection (a) of section 16-1, emits no pollutants, is less than twenty kilowatts in size, is located on the
customer-side of the revenue meter of one-to-four family homes and serves the distribution system of an
electric distribution company". See General Statutes of Connecticut, Section 16-245ff(a)(3) (Exhibit IND-124).
94 General Statutes of Connecticut, Section 16-245ff(c) (Exhibit IND-124).
95 Connecticut Green Bank, "Request for Qualifications and Program Guidelines for Eligible Contractors
and Third Party Photovoltaic (PV) System Owners to Participate in the Residential Solar Investment Program"
(Exhibit IND-42), p. 3.
96 General Statutes of Connecticut, Section 16-245ff(a)(1) (Exhibit IND-124).
97 Connecticut Green Bank, "Request for Qualifications and Program Guidelines for Eligible Contractors
and Third Party Photovoltaic (PV) System Owners to Participate in the Residential Solar Investment Program",
p. 3 (Exhibit IND-42).
98 Connecticut Green Bank, "Request for Qualifications and Program Guidelines for Eligible Contractors
and Third Party Photovoltaic (PV) System Owners to Participate in the Residential Solar Investment Program",
p. 3 (Exhibit IND-42).

2.35. The second type of fina ncial incentive, EPBB, is available to a homeowner who purchases a
solar PV system from an Eligible Contractor. The contractor is required to present the EPBB as an
upfront cost reduction to the customer. The Connecticut Green Bank then issues the EPBB payment
directly to the contractor upon completion of the installation. 99 Homeowners are required to work
with Eligible Contractors to qualify for CRSIP incentives.100
2.36. The incentives are paid at rates determined and published by the Connecticut Green Bank101,
subject to necessary application formalities. 102 PBI and EPBB payments cannot be combined for a
single project under the CRSIP, and no homeowner purchasing a solar PV system (and therefore
eligible to receive EPBB) is allowed to claim or receive PBI. Likewise, no System Owner offering
third-party financing will be allowed to claim or receive an EPBB for the same project.103
2.37. Within the context of the CRSIP, additional incentives of up to 5% of the ordinarily available
incentive may be made available for the use of "major system components manufactured or
assembled in Connecticut"104, and another additional incentive of up to 5% of the ordinarily available
incentive may be made available "for the use of major system components manufactured or
assembled in a distressed municipality … or a targeted investment community".105
2.38. The CRSIP , including the additional incentives challenged by India, is set out in
section 16-245ff of the General Statutes of Connecticut.106
2.39. As a general matter, the CRSIP is administered by the Connecticut Green Bank.107 However,
Section 245ff(i) of the General Statutes of Conn ecticut indicates that the additional incentives
available for use of major system components manufactured or assembled in Connecticut shall be
"provide[d]" by the Public Uti lities Regulatory Authority (PURA).108 On the basis of legislation
submitted by the parties, it is unclear whether the Green Bank is involved in the disbursement of
these payments. Although Section 245ff(i) of the General Statutes of Connecticut does not mention
the Green Bank , that provision is a subsection of Section 245ff, which establishes the CRSIP and
does mention the Green Bank, charging it with "structur[ing]" and "implement[ing]" the CRSIP.109

99 Connecticut Green Bank, "Request for Qualifications and Program Guidelines for Eligible Contractors
and Third Party Photovoltaic (PV) System Owners to Participate in the Residential Solar Investment Program",
p. 3 (Exhibit IND-42). See also General Statutes of Connecticut, Section 16-245ff(1)(b) (Exhibit IND-124).
100 Connecticut Green Bank, "Request for Qualifications and Program Guidelines for Eligible Contractors
and Third Party Photovoltaic (PV) System Owners to Participate in the Residential Solar Investment Program",
p. 3 (Exhibit IND-42). Details concerning Eligible Contractors are set out in pp. 4-6 of the same document.
101 General Statutes of Connecticut, Section 16-245ff(f) (Exhibit IND-124).
102 For details of the application process, see Connecticut Green Bank, "Request for Qualifications and
Program Guidelines for Eligible Contractors and Third Party Photovoltaic (PV) System Owners to Participate in
the Residential Solar Investment Program", pp. 6-14 (Exhibit IND-42).
103 Connecticut Green Bank, "Request for Qualifications and Program Guidelines for Eligible Contractors
and Third Party Photovoltaic (PV) System Owners to Participate in the Residential Solar Investment Program",
p. 3 (Exhibit IND-42).
104 The term "major system components" is not defined in the relevant legal instruments.
105 Connecticut General Statutes, Section 16-245ff(i) (Exhibit IND-124).
106 Connecticut General Statutes, Section 16-245ff (Exhibit IND-124).
107 Connecticut General Statutes, Section 16-245ff(b) (Exhibit IND-124).
108 Connecticut General Statutes, Section 16-245ff(i) (Exhibit IND-124).
109 Connecticut General Statutes, Section 16-245ff(b) (Exhibit IND-124). We also observe that
Section 16-245aa of the General Statutes of Connecticut empowers the Green Bank, inter alia, to "establish a
renewable energy and efficient energy finance program" and to give preference in this connection to "projects
that use major system components manufactured or assembled in Connecticut".109 This corresponds to the
criterion for the availability of the additional incentives under the CRSIP. Despite these connections, the
specific relationship between Sections 245aa and 245ff of the General Statutes of Connecticut remains unclear.
We discuss these issues further in our findings below as necessary.

2.7 Measure 8: Michigan Equipment Multiplier / Michigan Labour Multiplier
2.40. The Renewable Energy Standards Program in the State of Michigan (RESPM) comprises a
range of regulations and programs designed to "promote the development of clean energy,
renewable energy, and energy optimization through the implementation of a clean, renewable, and
energy efficient standard".110
2.41. Inter alia, the RESPM requires "electric providers" 111 to "achieve a renewable energy credit
portfolio" at levels specified by legislation. 112 A "renewable energy credit portfolio" consists of "the
renewable energy credits achieved by a provider for a particular year". 113 Subject to certain
exceptions114, electric providers obtain renewable energy credits either by generating electricity from
renewable energy systems for sale to retail customers, or by purc hasing or otherwise acquiring
renewable energy credits with or without the associated renewable energy.115
2.42. As a general rule 116, electricity providers generate one renewable energy credit 117 for each
megawatt hour of electricity generated from each of their rene wable energy systems.118 However,
additional credits are provided to electricity providers in certain circumstances.119 Notably, electricity
providers receive, in addition to the standard one credit for one megawatt hour of electricity
generated by a renewable energy system:
a) 1/10 renewable energy credit for each megawatt hour of electricity generated from a
renewable energy system constructed using equipment made in Michigan120; and
b) 1/10 renewable energy credit for each megawatt hour of electricity from a renewa ble
energy system constructed using a workforce composed of residents of Michigan.121
2.43. Additional details concerning the calculation of these additional benefits are contained in
Michigan Case No. U -15800, Temporary Order.122 According to that document, the fol lowing rules

110 Michigan Public Act No. 295, Section 1(2) (Exhibit IND-43). The instrument was amended in 2017 by
Michigan Public Act No. 342 (Exhibit IND-44), which we describe below.
111 "Electricity provider" is defined as any of the following: "(i) Any person or entity that is regulated by
the [Michigan Public Service Commission] for the purpose of selling electricity to retail customers in [Michigan];
(ii) a municipally-owned electric utility in [Michigan]; (iii) a cooperative electric utility in [Michigan]; (iv) Except
as used in subpart B of part 2, an alternative electric supplier licensed under section 10a of 1939 PA 3, MCL
460.10a". See Michigan Public Act No. 295, Section 5(a) (Exhibit IND-43).
112 Michigan Public Act No. 295, Section 27(3) (Exhibit IND-43).
113 Michigan Public Act No. 295, Section 11(e) (Exhibit IND-43). The method for calculating a renewable
energy credit portfolio is set out at Michigan Public Act No. 295, Section 27(3)(a)-(c) (Exhibit IND-43).
114 See Michigan Public Act No. 295, Sections 27(6) and 27(7) (Exhibit IND-43). Neither party has raised
or discussed the relevance of this provision, if any, for the claims at issue in this dispute.
115 Michigan Public Act No. 295, Section 27(5) (Exhibit IND-43).
116 Michigan Public Act No. 295, Section 39(1) (Exhibit IND-43).
117 The expiry of credits, as well as rules concerning trade, sale, and transfer of credits, are contained in
Michigan Public Act No. 295, Sections 39(3) and (4) (Exhibit IND-43).
118 The term "renewable energy system" means "a facility, electricity generation system, or set of
electricity generation systems that use 1 or more renewable energy resources to generate electricity", subject
to certain exclusions. Michigan Public Act No, 295, Section 9(k) (Exhibit IND-43).
119 Michigan Public Act No. 295, Section 39(2) (Exhibit IND-43).
120 This additional credit is only available for the first three years after the renewable energy system first
produces electricity on a commercial basis. Michigan Public Act No. 295, Section 39(2)(d) (Exhibit IND-43).
121 This additional credit is only available for the first three years after the renewable energy system first
produces electricity on a commercial basis. Michigan Public Act No. 295, Section 39(2)(e) (Exhibit IND-43).
122 India has submitted a document entitled "State of Michigan, Case No. U-15900, Michigan Public
Service Commission – Order and Notice of Hearing, 27 April 2010" (Exhibit IND-90). This appears to be a set of
proposed final rules concerning the implementation of Michigan Public Act No. 295. It appears that these
proposed rules were intended to replace Michigan Case No. U-15800, Temporary Order (Exhibit IND-48). It is
unclear whether these final rules were in force at the time the Panel was established. Panel question Nos. 41
and 114 asked the parties to clarify whether these final rules were in force at the time the Panel was
established. Responses by the parties failed to clarify the issue. At any rate, we note that the relevant sections
of Michigan Case No. U-15800, Temporary Order are repeated in identical terms in the proposed final rules.
Thus, the above description covers both the Temporary Order and the proposed final rules. Neither party has
suggested that any other orders or rules may have been in force at the relevant time. See Michigan Case
No. U-15900, Michigan Public Service Commission – Order and Notice of Hearing, 27 April 2010, R 460.219,
Rule 19, p. 6 (Exhibit IND-90).

apply in respect of electricity generated by a renewable energy system "constructed using equipment
made in Michigan".
2.44. First, Michigan-made equipment is calculated by dividing the USD cost of all equipment and
materials made (defined as manufactured or assembled) in the State of Michigan by the total USD
cost of all equipment and materials used to construct the renewable energy system.
2.45. Second, the annual number of incentive credits granted to the owner of the renewable energy
system is determined by multiplying the percentage calculated in step one above by the result of
1/10 multiplied by the number of MWhs produced by the renewable energy system in that year.
100% of the incentive credits are granted to the owner of the renewable energy system if the
percentage calculated above equals or exceeds 50%.123
2.46. The following principles apply in respect of electricity generated by a renewable energy system
"constructed using a workforce composed of residents of Michigan".
2.47. First, Michigan labour is calculated by dividing the number of labour hours attributed to the
construction (defined as in-field labour) of the renewable energy system performed by residents of
the State of Michigan by the total labour hours attributed to the construction of the renewable energy
system.
2.48. Second, the annual number of incentive credits granted to the owner of the renewable energy
system is determined by multiplying the percentage calculated in step one above by the result of
1/10 multiplied by the number of MWhs produced by the renewable energy system in that year. 124
100% of the credits are granted to the owner of the renewable energy system if the percentage
calculated in accordance with the equation above equals or exceeds the following:
a) 60% for renewable energy systems with a commercial operation date from 6 October 2008
through 31 December 2012;
b) 65% for renewable energy systems with a commercial operation date from 1 January 2013
through 31 December 2014; or
c) 70% for renewable energy systems with a commercial operation of 1 January 2015 or
after.
2.49. Following the Panel's establishment on 21 March 2017, Michigan Public Act No. 342, which
amended and replaced Michigan Public Act No. 295, entered into force on 20 April 2017.125 Michigan
Public Act No. 342 contains the same rules as Michigan Public Act No. 295 concerning the availability
of additional credits for renewable energy generated by a renewable energy system that is
constructed using equipment made in Michigan or by a workforce composed of residents of
Michigan.126
2.50. The version of the RESPM in force at the time of the Panel's establishment was set out in
Michigan Public Act No. 295. Following the Panel's establishment, the amended version of the RESPM
entered into force, and is contained in Michigan Public Act No. 342.127 The program is administered
by the Michigan Public Services Commission.128

123 Michigan Case No. U-15800, Temporary Order, p. 27 (Exhibit IND-48).
124 Michigan Case No. U-15800, Temporary Order, pp. 27-28 (Exhibit IND-48).
125 Michigan Public Act No. 342 (Exhibit IND-44). We note that Michigan Public Act No. 342 was
"[a]pproved by the Governor" on 21 December 2016, prior to the Panel's establishment, but it did not become
"effective" until 20 April 2017.
126 Michigan Public Act No. 342, Sections 39(2)(d) and (e) (Exhibit IND-44).
127 We discuss this amendment in further detail in our findings.
128 Michigan Public Act No. 295, Section 21 (Exhibit IND-43) and Michigan Public Act No. 342, Section 22
(Exhibit IND-44).

2.8 Measure 9: Delaware Equipment Bonus / Delaware Workforce Bonus
2.51. The Delaware Renewable Energy Portfolio Standards Act (REPSA) provides that retail
electricity suppliers and municipal electric companies must sell a certain percentage of electricity
generated using "eligible energy resources" and solar photovoltaics. Compliance with these targets
is tracked and verified through the use of "renewable energy credits" (REC)129 and "solar renewable
energy credits" (SREC) 130. RECs and SRECs are tradable instruments on an electronic market
system.131
2.52. Within the context of REPSA, an a dditional 10% credit is provided to retail electricity
suppliers132 towards meeting the renewable energy portfolio standards 133 for solar or wind energy
installations sited in Delaware provided that: (i) a minimum of 50% of the cost of renewable energy
equipment, inclusive of mounting components, are manufactured in Delaware (Delaware Equipment
Bonus); or (ii) the facility is constructed or installed with a minimum of 75% in -state workforce
(Delaware Workforce Bonus).134 This means that workforce must consist of at least 75% Delaware
residents or the installing company must employ in total a minimum of 75% workers who are
Delaware residents.
2.53. The Delaware Public Service Commission verifies that the required percentages of
manufacture and workforce in Delaware are met.135 According to India, the Commission carries out
the verification of the cost of the equipment based on the copy of the supplier 's invoice which is
required together with the "Application for Certification" . The invoice must show Delaware
manufactured equipment with the facility identified. If the supplier 's invoice shows only a coded
Purchase Order (PO) number, a copy of the company's matching PO that includes the address where
the materials were used/installed must also be suppli ed. If a master invoice is submitted, a record
of the draws against the purchased quantity, on the master invoice, must show the address of each
use and the quantity of material used.136
2.54. The Delaware Equipment and Workforce Bonuses , which can be added togeth er137, are
provided for in Section 356(d) and (e) of the REPSA138, and developed in the Rules and Procedures
to Implement the Renewable Energy Portfolio Standard by the Delaware Public Service
Commission.139 The REPSA is administered by the Delaware Public Services Commission.

129 One REC is "equal to 1 megawatt-hour of retail electricity sales … derived from eligible energy
resources". See Delaware Code, Title 26, Chapter 1, Subchapter III-A, Section 352(18) (Exhibit IND-54).
130 One SREC is "equal to 1 megawatt-hour of retail electricity sales … derived from solar photovoltaic
energy resources". See Delaware Code, Title 26, Chapter 1, Subchapter III-A, Section 352(25)
(Exhibit IND-54).
131 Delaware Code, Title 26, Chapter 1, Subchapter III-A, Section 352(18) and (25) (Exhibit IND-54).
132 "Retail electricity supplier" is defined as "a person or entity that sells electrical energy to end use
customers in Delaware, including but not limited to nonregulated power producers, electric utility distribution
companies supplying standard offer, default service, or any successor service to end use customers". The term
does not cover a municipal electric company for the purposes of the measure at issue. See Delaware Code,
Title 26, Chapter 1, Subchapter III-A, Section 352(22) (Exhibit IND-54).
133 "Renewable energy portfolio standard" and "RPS" means "the percentage of electricity sales at retail
in the state that is to be derived from eligible energy resources". See Delaware Code, Title 26, Chapter 1,
Subchapter III-A, Section 352(19) (Exhibit IND-54).
134 Rules and Procedures to Implement the Renewable Energy Portfolio Standard, Rule 3.2.16
(Exhibit IND-55).
135 Recommendations of the Renewable Energy Taskforce, Section 2.3 (Exhibit IND-58).
136 India's response to Panel question No. 115 (referring to the Application for Certification in Exhibit
IND-127). See also India's response to Panel question No. 47, and first written submission, fns 656 and 688.
137 Recommendations of the Renewable Energy Taskforce, Section 2.3 (Exhibit IND-58).
138 Delaware Code, Title 26, Chapter 1, Subchapter III-A, Section 356(d) and (e) (Exhibit IND-54).
139 Rules and Procedures to Implement the Renewable Energy Portfolio Standard (Exhibit IND-55).

2.9 Measure 10: Minnesota production incentives and rebates
2.55. India refers to three programs under the general umbrella term "Minnesota Solar Incentive
Program"140:
a) performance-based financial incentives offered to owners of grid -connected sol ar
photovoltaic (PV) modules if the solar PV modules qualify as "Made in Minnesota" (SEPI);
b) rebates offered for the installation of "Made in Minnesota" solar thermal systems
(Minnesota solar thermal rebate); and
c) rebates offered to owners of a qualified pro perty for installing solar PV mod ules
manufactured in Minnesota (Minnesota solar PV rebate).
2.56. The Minnesota legislature repealed the first two programs, i.e. the SEPI, and the rebate
program on the installation of solar thermal systems, on 22 May 2017, afte r the Panel was
established.141 Payments of incentives pursuant to the SEPI are permitted until 31 October 2028.142
The parties disagree on whether rebate payments are ongoing under the Minnesota143 solar thermal
rebate.144
2.9.1 Minnesota solar energy production incentive (SEPI)
2.57. The Minnesota solar energy production incentive (SEPI) is open to owners of grid-connected
solar photovoltaic (PV) modules145 of a total nameplate capacity of less than 40 kilowatts who
submitted to the Commissioner of Commerce an application to receive the incentive that has been
approved by the Commissioner and received a "Made in Minnesota" certificate for the module under
section 216C.413 of the 2016 Minnesota Statutes . The solar PV modules certified as "Made in
Minnesota" must have been installed on either residential 146 or commercial147 premises and must
generate electricity.148

140 India's first written submission, para. 939.
141 Senate Session Laws, Chapter 94, S.F. 1456 (Exhibit IND-100). We discuss the relevance of this
repeal in our findings below.
142 United States' response to Panel question No. 117, and India's comments on the United States'
response to Panel question No. 117.
143 India's response to Panel question No. 102 and comments on the United States' response to Panel
question No. 117; United States' response to Panel question No. 117. We discuss the relevance of this
information in our findings below.
144 India's response to Panel question No. 102 and comments on the United States' response to Panel
question No. 117; and United States' response to Panel question No. 117. We discuss the relevance of this
information in our findings below.
145 "Solar photovoltaic module" is defined as the smallest, nondivisible, self-contained physical structure
housing interconnected photovoltaic cells and providing a single direct current of electrical output. See 2016
Minnesota Statutes, Chapter 216C, Section 216C.411 referring to 2016 Minnesota Statutes,
Section 116C.7791, subdivision 1, paragraph (e) (Exhibit IND-66).
146 "Residential property" is defined as "residential real estate that is occupied and used as a homestead
by its owner or by a renter and includes 'multifamily housing development' as defined in section 462C.02,
subdivision 5, except that residential property on which solar photovoltaic modules (i) whose capacity exceeds
10 kilowatts is installed; or (ii) connected to a utility's distribution system and whose electricity is purchased by
several residents, each of whom own a share of the electricity generated, shall be deemed commercial
property". See 2016 Minnesota Statutes, Chapter 216C, Section 216C.415, subdivision 5 (Exhibit IND-66).
147 "Commercial property" is defined as "real property on which is located a business, government, or
nonprofit establishment". See 2016 Minnesota Statutes, Chapter 216C, Section 216C.415, subdivision 5
(Exhibit IND-66).
148 2016 Minnesota Statutes, Chapter 216C, Section 216C.415, subdivision 1 (Exhibit IND-66).

2.58. To receive the "Made in Minnesota" certificate by the Commissioner of Commerce, solar PV
modules must:
a) be manufactured at a manufacturing facility located in Minnesota that is registered and
authorized to manufacture and apply the UL 1703 certification mark to solar PV modules
by Underwriters Laboratory (UL), CSA International, Intertek, or an equivalent UL -
approved independent certification agency;
b) be manufactured in Minnesota by manufacturing processes that must include tabbing,
stringing, and lamination; or by interconnecting low -voltage direct current photovoltaic
elements that produce the final useful photovoltaic output of the modules; and
c) bear UL 1703 certification marks from UL, CSA International, Intertek, or an equivalent
UL-approved independent certification agency, which must be physically applied to the
modules at a manufacturing facility described in subparagraph a) above.149
2.59. Incentive payments under this program are made only for electricity generated from new
solar PV module installations commissioned between 1 January 2014 and 31 December 2023. An
owner of solar PV modules may, in principle, receive payments under this program for a particular
module for a period of ten years, provided that sufficient funds are available.150
2.60. The SEPI is provided for in Sections 216C.411 – 216C.415 of the 2016 Minnesota Statutes.151
2.9.2 Minnesota solar thermal rebate
2.61. The Minnesota solar thermal rebate provides rebates upon the installation of solar thermal
systems152 "Made in Minnesota" in residential or commercial premises.153
2.62. For solar thermal systems to qualify as "Made in Minnesota", their components must be
manufactured in Minnesota and the solar thermal system must be certified by the Solar Rating and
Certification Corporation.154
2.63. The rebates, which are granted by the Commissioner of Commerce following an application,
vary depending on whether applications relate to a single family residential dwelling installation, a
multiple family residential dwelling installation, or a commercial installation. 155 Section 216C.416
provides that, "[t]o the extent there are sufficient applications, the commissioner shall annually
spend for rebates under this [program] from 2014 to 2023, for a total of ten years, approximately
$250,000 per year."156
2.64. The Minnesota solar thermal rebate is provided for in Section 216C.416 of the 2016 Minnesota
Statutes.157

149 A solar photovoltaic module that is manufactured by attaching microinverters, direct current
optimizers, or other power electronics to a laminate or solar photovoltaic module that has received UL 1703
certification marks outside Minnesota from UL, CSA International, Intertek, or an equivalent UL-approved
independent certification agency is not "Made in Minnesota". See 2016 Minnesota Statutes,
Section 216C.411(a) (Exhibit IND-66).
150 2016 Minnesota Statutes, Chapter 216C, Section 216C.415, subdivision 4 (Exhibit IND-66).
151 2016 Minnesota Statutes, Chapter 216C, Sections 216C.411 – 216C.415 (Exhibit IND-66).
152 "Solar thermal system" is defined as "a flat plate or evacuated tube that meets the requirements of
section 216C.25 with a fixed orientation that collects the sun's radiant energy and transfers it to a storage
medium for distribution as energy to heat or cool air or water". See 2016 Minnesota Statutes, Chapter 216C,
Section 216C.416, Subdivision 1 (Exhibit IND-110).
153 2016 Minnesota Statutes, Chapter 216C, Section 216C.416, Subdivision 1 (Exhibit IND-110).
154 2016 Minnesota Statutes, Chapter 216C, Section 216C.416, Subdivision 1 (Exhibit IND-110).
155 2016 Minnesota Statutes, Chapter 216C, Section 216C.416, Subdivision 3 (Exhibit IND-110).
156 2016 Minnesota Statutes, Chapter 216C, Section 216C.416, Subdivision 2(c) (Exhibit IND-110).
157 2016 Minnesota Statutes, Chapter 216C, Section 216C.416 (Exhibit IND-110).

2.9.3 Minnesota solar photovoltaic (PV) rebate
2.65. The Minnesota solar photovoltaic (PV) rebate provides rebates to owners of qualified
properties158 who install 159 solar PV modules160 manufactured in Minnesota after
31 December 2009.161
2.66. For solar PV modules to be considered as manufactured in Minnesota, the material production
of solar PV modules, including the tabbing, stringing, and lamination processes must take place in
Minnesota; or the production of interconnections of low-voltage photoactive elements that produce
the final useful PV output must be carried out by a manufacturer operating in Minnesota on
18 May 2010.162
2.67. To be eligible for this rebate:
a) A solar PV module must (i) be manufactured in Minnesota; (ii) be installed on a qualified
property as part of a system whose generating capacity does not exceed 40 kilowatts;
(iii) be certified by Underwriters Laboratory, must have received the ETL listed mark from
Intertek, or must have an equivalent certification from an independent testing agency;
and (iv) be installed, or reviewed and approved, by a person certified as a solar
photovoltaic installer by the North American Board of Certified Energy Practitioners .
In addition, the solar PV module (i) may or may not be connected to a utility grid; and
(ii) may not be used to sell, transmit, or distribute the electrical energy at retail, nor to
provide end-use electricity to an offsite facility of the electrical energy generat or (on-site
generation being allowed to the extent provided for in section 216B.1611)163; and
b) An applicant must have applied for and received a rebate or other form of financial
assistance available exclusively to owners of properties on which solar PV modules are
installed, and provided by either the State of Minnesota or the utility company serving the
applicant's property (unless the applicant's failure to receive the rebate or financial
assistance was due to lack of funds). 164 However, the Minnesota solar energy production
incentive (SEPI) does not count in this respect, as a person receiving the SEPI is not
entitled to receive a Minnesota solar PV rebate for the same solar PV modules.165
2.68. The amount of a rebate under this program is the difference between the sum of all rebates
described in subparagraph b) above awarded to the applicant and $5 per watt of installed generating
capacity.166 The amount of all rebates or other forms of financial assistance awarded to an applicant
by a u tility or the State, including any rebate paid under this program (net of applicable federal
income taxes applied at the highest applicable income tax rates) is capped at 60 % of the total
installed cost of the solar PV modules.167
2.69. The Minnesota solar PV rebate is provided for in Section 116C.7791 of the 2016 Minnesota
Statutes.168

158 "Qualified property" is defined as "a residence, multifamily residence, business, or publicly owned
building located in the assigned service area of the utility subject to section 116C.779". See 2016 Minnesota
Statutes, Section 116C.7791, Subdivision 1(d) (Exhibit IND-66).
159 "Installation" is defined as "an array of solar photovoltaic modules attached to a building that will use
the electricity generated by the solar photovoltaic modules or placed on a facility or property proximate to that
building". See 2016 Minnesota Statutes, Section 216C.7791, Subdivision 1(a) (Exhibit IND-66).
160 "Solar photovoltaic module" is defined as "the smallest, nondivisible, self-contained physical
structure housing interconnected photovoltaic cells and providing a single direct current of electrical output."
See 2016 Minnesota Statutes, Section 116C.7791, Subdivision 1(e) (Exhibit IND-66).
161 2016 Minnesota Statutes, Section 216C.7791, Subdivision 2 (Exhibit IND-66).
162 2016 Minnesota Statutes, Section 216C.7791, Subdivision 1(b) (Exhibit IND-66).
163 2016 Minnesota Statutes, Section 216C.7791, Subdivision 3(a) (Exhibit IND-66).
164 2016 Minnesota Statutes, Section 216C.7791, Subdivision 3(b) (Exhibit IND-66).
165 2016 Minnesota Statutes, Section 216C.415, Subdivision 6 (Exhibit IND-66).
166 2016 Minnesota Statutes, Section 216C.415, Subdivision 4(a) (Exhibit IND-66).
167 2016 Minnesota Statutes, Section 216C.415, Subdivision 4(b) (Exhibit IND-66).
168 2016 Minnesota Statutes, Section 216C.7791 (Exhibit IND-66).

3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. India requests that the Panel find that the measures at issue are inconsistent with the
United States' obligations under the GATT 1994, the TRIM s Agreement, and the SCM Agreement.
India further requests, pursuant to Article 19.1 of the DSU, that the Panel recommend that the
United States bring its measures into conformity with its WTO obligations.169
3.2. The United States requests the Panel to find that India has failed to meet its burden to show
that the measures at issue are inconsistent with the provisions of the GATT 1994, the
TRIMs Agreement, and the SCM Agreement cited by India.170
4 ARGUMENTS OF THE PARTIES
4.1. The argument s of the parties are reflected in their executive summaries, submitted in
accordance with paragraph 23 of the Panel's Working Procedures (see Annexes B-1 and B-2).
5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of Brazil, China, the European Union, Japan, and Norway are reflected in their
executive summaries, provided in accordance with paragraph 26 of the Working Procedures adopted
by the Panel (see Annexes C-1, C-2, C-3, C-4, and C-5). Indonesia, the Republic of Korea, the
Russian Federation, the Kingdom of Saudi Arabia, Singapore, Chinese Taipei, and Turkey did not
submit written or oral arguments to the Panel.
6 INTERIM REVIEW
6.1. The Panel issued its Interim Report to the parties on 25 April 2019. On 9 May 2019, both parties
submitted written requests for the Panel to review precise aspects of the Interim Report, and neither
party requested an interim review meeting. On 23 May 2019, the parties submitted written
comments on each other's written requests for review. The parties' requests, made at the in terim
review stage, as well as the Panel's discussion and disposition of these requests are set out in
Annex E-1.
7 FINDINGS
7.1 Measures amended or repealed following the establishment of the Panel
7.1. Before proceeding to the substance of India's claims, we address a threshold issue arising from
the fact that several instruments underlying the measures challenged by India in this dispute were
amended or repealed following the establishment of this Panel on 21 March 2017.
7.2. Specifically, Measures 1 (Washington State additional incentive), 2 (California Manufacturer
Adder) and 8 (Michigan Equipment Multiplier and Michigan Labour Multiplier) have been amended.171
Additionally, two of the three programs identified by India under Measure 10, namely the Minnesota
solar energy production incentive (SEPI) and the Minnesota solar thermal rebate, were repealed
following the Panel's establishment.172
7.3. In light of these changes, India requested that we make findings and recommendations on the
amended versions of Measures 1 and 8 173; on both the original and amended version of
Measure 2174; and on the two repealed programs under Measure 10.175 While the United States does
not object to the Panel considering either Measure 8 as amended or the two repealed programs

169 India's first written submission, para. 1178 and second written submission, para. 99.
170 United States' first written submission, para. 257 and second written submission, para. 47.
171 See paras. 2.13, 2.15, and 2.49 above.
172 See para. 2.56 above.
173 India's response to Panel question No. 102, paras. 4 and 7.
174 India's response to Panel question No. 102, para. 5.
175 India's response to Panel question No. 102, para. 8.

under Measure 10176, it has submitted that the amended versions of Measures 1 and 2 do not fall
within the Panel's terms of reference.
7.4. These circumstances raise the following questions: are the amended measure s
(i.e. Measures 1, 2, and 8), on the one hand, and the repealed programs (under Measure 10), on
the other hand, within our terms of reference 177; and can or should we make findings and
recommendations on these amended measures and repealed programs?178 Additionally, with respect
to the amended measures, should we also make findings and recommendations on these measures
as they existed at the time the Panel was established? We will examine these questions separately
in respect of the amended measures (Measures 1, 2, and 8) and the two repealed programs under
Measure 10.
7.1.1 Measures amended following the establishment of the Panel
7.5. To better understand India's position in respect of Measures 1, 2, and 8, we asked India to
explain the legal basis for its request that the Panel examine the WTO-consistency of these measures
as amended following panel establishment. In response, India explained that past panels have made
findings on measures amended following panel establishment where a panel's terms of reference
were broad enough to encompass the amendments, the amendments did not change the essence of
the challenged measure, and addressing the amended measure as amended was necessary to
resolve the dispute. 179 In support of this proposition, India relies on the panel repor t in EC – IT
Products.180 According to India, applying these criteria in the present dispute leads to the conclusion
that the amendments to Measures 1, 2, and 8 are within the Panel's terms of reference. India also
submits that the United States has not cont ested the Panel's ability to make findings on the
measures as amended.181
7.6. In its comments on India's responses to our questions, the United States indicated its
disagreement with India's position that we can or should examine the WTO-consistency of measures
amended after the Panel 's establishment. According to the United States, "the measures within a
panel's terms of reference are defined by the complainant's panel request, and the relevant time for
defining the measures within the panel's terms of reference is the time of the DSB's establishment
of the panel". 182 In the United States' view, "nothing in the text of Articles 6.2 or 7.1 of the DSU
supports the view that measures enacted after the date of panel establishment (including
amendments) are within a panel's terms of reference", "[n]or has India identified any other text in

176 United States' comments on India's response to Panel question No. 102, para. 8. We note that "the
United States continues to maintain [following the preliminary ruling of the Panel] that the Rebate for Solar
Thermal Systems is not within the Panel's terms of reference because it was not identified in India s request for
consultations". United States' comments on India's response to Panel question No. 102, fn 9. See also the
United States' first written submission, paras. 66-74. We recall, however, the finding in our preliminary ruling
that the Minnesota solar thermal rebate is within our terms of reference. See preliminary ruling of the Panel,
para. 4.37, Annex D-1.
177 We note that the issues raised in this section of our Report are distinct from those discussed in our
preliminary ruling. The latter concerned, inter alia, whether we had jurisdiction over measures that had expired
prior to the Panel's establishment. The question here concerns measures that were amended or repealed
following the establishment of the Panel. As we explained in our Preliminary Ruling, amendment or repeal of a
measure prior to the establishment of a panel may have implications for that panel's terms of reference that
are quite different from the implications of an amendment or repeal subsequent to panel establishment. See
preliminary ruling of the Panel, paras. 3.28-3.29, Annex D-1.
178 We note that these fundamental issues, which ultimately go to our jurisdiction, were not addressed
directly in the parties' first or second written submissions. Rather, we addressed questions to the parties on
this issue, mindful of the Appellate Body's guidance that "panels cannot simply ignore issues which go to the
root of their jurisdiction [but must] deal with such issues – if necessary, on their own motion – in order to
satisfy themselves that they have authority to proceed" (Appellate Body Report, Mexico – Corn Syrup
(Article 21.5 – US), para. 36. See also Appellate Body Report, US – 1916 Act, para. 54; Panel Reports, EC – IT
Products, para. 7.196 and US – Clove Cigarettes, para. 7.134). See Panel questions Nos. 40, 102-104, 106,
113, and 116-117.
179 India's response to Panel question No. 102, para. 1.
180 India's response to Panel question No. 102, para. 1 (referring to Panel Reports, EC – IT Products,
para. 7.139).
181 India's responses to Panel question No. 102, para. 2, and No. 103, para. 9.
182 United States' comments on India's response to Panel question No. 102, para. 2. See also
United States' response to Panel question No. 103 and comments on India's response to Panel question
No. 102.

the DSU that would otherwise support such a view".183 The United States adds that India's reference
to what is necessary to secure a positive solution to the dispute is misplaced, as nothing in Article 6.2
or 7.1 of the DSU "suggests that a panel may review a measure that otherwise falls outside of its
terms of reference … because – in the view of the complaining Member – doing so is necessary to
secure a positive solution to the dispute".184 Additionally, the United States argues that the "certain
reports" relied upon by India are "not persuasive", because they did "not start with or even consider
the relevant text of the DSU". 185 On the basis of these considerations, the United States submits
that we should only review the WTO -consistency of measures that existed at the time of panel
establishment.186
7.1.1.1 Overview of applicable principles
7.7. Neither party has engaged in detail with past cases that have dealt with the issue of a panel's
jurisdiction over measures amended after panel establishment. India's argumentation on this specific
issue cites one panel report 187, whereas the United States' mentions – generally and without any
specific references – "certain reports" that, in the United States' view, are "not persuasive".188
7.8. There are, however, several relevant past cases that, in our view, provide guidance on the
issue before us. Indeed, although "[a]s a general rule, the measures included in a panel's terms of
reference must be measures in ex istence at the time of the establishment of the panel "189, the
Appellate Body has indicated that " Article 6.2 does not set out an express temporal condition or
limitation on the measures that can be identified in a panel request" 190: "measures enacted
subsequent to the establishment of the panel may, in certain limited circumstances, fall within a
panel's terms of reference".191
7.9. In this connection, we recall that in Chile – Price Band System, the Appellate Body stated that:
If the terms of reference in a dispute are broad enough to include amendments to a
measure—as they are in this case—and if it is necessary to consider an amendment in
order to secure a positive solution to the dispute—as it is here—then it is appropriate to
consider the measure as amended in coming to a decision in a dispute.192
7.10. Additionally, in EC – Selected Customs Matters , the Appellate Body explained that "a panel
has the authority to examine a legal instrument enacted after the establishment of the panel that
amends a measure identified in the panel request, provided that the amendment does not change
the essence of the identified measure".193
7.11. These basic principles – that a panel has jurisdiction to examine amendments made to
measures in existence at the t ime of panel establishment if ( i) the terms of reference are broad
enough to include such amendments; ( ii) the amendments do not change the essence of the
measures identified in the panel request; and (iii) such examination is necessary to secure a positive

183 United States' comments on India's response to Panel question No. 102, para. 5.
184 United States' comments on India's response to Panel question No. 102, para. 6.
185 United States' comments on India's response to Panel question No. 102, para. 5.
186 United States' comments on India's response to Panel question No. 103.
187 India's response to Panel question No. 102, para. 1(ii) (referring to Panel Reports, EC – IT Products,
para. 7.139).
188 United States' comments on India's response to Panel question No. 102, para. 5.
189 Appellate Body Report, EC – Chicken Cuts, para. 156.
190 Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan), para. 121.
191 Appellate Body Report, EC – Chicken Cuts, para. 156. See also Appellate Body Report, US – Zeroing
(Japan) (Article 21.5 – Japan), para. 121.
192 Appellate Body Report, Chile – Price Band System, para. 144 (emphasis original). See also Appellate
Body Report, EC – Chicken Cuts, para. 156.
193 Appellate Body Report, EC – Selected Customs Matters, para. 184 (footnote omitted, referring to
Appellate Body Report, Chile – Price Band System, para. 139).

solution to the dispute – have also been applied by several panels, including in EC – IT Products194
and China – Raw Materials.195
7.12. Therefore, we are of the view that India's statement of the applicable principles concerning a
panel's jurisdiction over measures amended after panel establishment is supported by several panel
and Appellate Body reports.
7.13. As noted above196, the United States argues that India has relied on "certain reports" which,
in the United States' view, are not persuasive because they did not "start with or even consider the
relevant text of the DSU".197 However, as also noted above, the notion that a panel may, in certain
circumstances, examine the WTO -consistency of a n amended measure subsequent to panel
establishment is supported not only by t he EC – IT Products panel report cited by India, but by
several other reports, including Appellate Body reports, which either explicitly or implicitly base their
findings on DSU provisions, including Articles 3 and 6.2.
7.14. Indeed, when assessing whether amendments to measures identified in the panel request fall
within a panel's terms of reference, both panels and the Appellate Body have found guidance in the
requirement in Article 6.2 of the DSU that the panel request identify the "specific measures at
issue".198 Further, in some instances, both panels and the Appellate Body have reviewed this issue
in light of the principles and objectives in Article 3 of the DSU.199
7.15. We therefore disagree with the United States' argument that past cases are not persuasive
because they did not "start with or even consider the relevant text of the DSU".200 Accordingly, and
since the United States has not further clarified why it considers that certain reports are "not
persuasive", we see no reason to depart from the relevant guidance summarized above.
7.16. Therefore, in considering whether we can and should assess the WTO-consistency of Measures
1, 2, and 8 as amended, we will have regard to whether ( i) the terms of India's panel request are
broad enough to cover the measu res as amended; ( ii) the amendments in question change the
essence of the measures as identified in India's panel request; and ( iii) whether assessing the
measures as amended is necessary to secure a positive solution to the dispute.
7.17. As an additional and closely related issue, we note that, even if an amendment falls within a
panel's terms of reference, the panel retains jurisdiction over the measure as it existed at the time
of panel establishment.201 In principle, therefore, a panel with jurisdiction over amended measures
could address the measure as they existed at the time of panel establishment as well. The question
of which version or versions of an amended measure a panel addresses, and the precise

194 Panel Reports, EC – IT Products, para. 7.139.
195 Panel Reports, China – Raw Materials, para. 7.15. See also Panel Report, Indonesia – Autos, fn 642,
listing numerous GATT panel reports deciding to consider measures as amended following panel establishment.
196 See para. 7.6 above.
197 United States' comments on India's response to Panel question No. 102, para. 5. According to the
United States, "nothing in the text of Articles 6.2 or 7.1 of the DSU supports the view that measures enacted
after the date of panel establishment (including amendments) are within a panel's terms of reference". See
United States' comments on India's response to Panel question No. 102, para. 5.
198 See, for example, Appellate Body Reports, Chile – Price Band System, paras. 126-144; EC – Chicken
Cuts, para. 156; and US – Zeroing (Japan) (Article 21.5 – Japan), para. 121; and Panel Reports, US – Large
Civil Aircraft (2nd complaint) (Article 21.5 – EU), para. 7.534; and EC – IT Products, paras. 7.135-7.139.
199 The Appellate Body in Chile – Price Band System and the panel in US – Large Civil Aircraft
(2nd complaint) (Article 21.5 – EU) referred to Articles 3.4 and 3.7 of the DSU; the panel in Colombia – Ports of
Entry referred to Article 3.7 of the DSU; the panel in EC – Fasteners (China) referred to Article 3.3 of the DSU;
and the panel in Russia – Pigs (EU) referred to Article 3.3 and 3.7 of the DSU. See Appellate Body Reports,
Chile – Price Band System, paras. 140-141; EC – Chicken Cuts, para. 161, US – Zeroing (Japan) (Article 21.5 –
Japan), para. 122; and panel Reports, Colombia – Ports of Entry, para. 7.52, EC – Fasteners (China),
para. 7.34, US – Large Civil Aircraft (2nd complaint) (Article 21.5 – EU), para. 7.542, and Russia – Pigs (EU),
para. 7.151.
200 United States' comments on India's response to Panel question No. 102, para. 5.
201 Appellate Body Reports, EC – Selected Customs Matters, para. 187.

recommendations that it makes, will depend first and f oremost on the complainant's specific
request202 and on what is necessary to secure a positive solution to the dispute.203
7.1.1.2 Measure 1: Washington State additional incentive
7.18. Senate Bill 5939 of July 2017204 amended certain parts of Chapter 82.16 of the Revised Code
of Washington (RCW) following the establishment of the Panel.
7.19. India argues that these amendments to Chapter 82.16 of the RCW "do not impact India's
claims"205 and fall "within the terms of reference of the Panel" 206 for two reasons. First, in India's
view, the amendments do not "'change the essence' of the original measure"; and second, according
to India, India's panel request is "broad enough to include any sub sequent amendments,
replacements, or extensions thereto". 207 India requests the Panel to make both findings and
recommendations on the measure as amended in 2017, including on the 'made in Washington' bonus
introduced by the amendment and codified in RCW 82. 16.165208, since, in its view, such findings
and recommendations are necessary to achieve a positive solution to the dispute.209 India does not
specifically request that we make findings and recommendations on the original version of
Measure 1.
7.20. The United States responds that Measure 1 as amended is not within the Panel's terms of
reference because it did not exist at the time of t he Panel's establishment. In the United States'
view, it follows that "there is no basis for the Panel to issue legal findings or recommendations with
respect to" the amended measure.210 In respect of the factual aspects of the amendment, the
United States observes that Senate Bill 5939 "reduced the level of incentives previously available
under RECIP".211
7.21. In order to determine whether we should assess the WTO -consistency of the Washington
State additional incentive as amended by Senate Bill 5939, we will examine (i) whether India's panel
request is broad enough to encompass the relevant amendment; (ii) whether there has been any
change in the essence of the measure at issue as a result of the amendment; and (iii) whether our
findings and , if relevant, recommendations are necessary to secure a positive resolution to the
dispute. We will do so by looking at Sections 82.16.110 - 82.16.130 of the RCW as amended by
Senate Bill 5939, followed by Section 82.16.165 of the RCW which was introduced by S enate
Bill 5939.
7.22. We consider that India's panel request is broad enough to encompass the amendments to
Sections 82.16.110 - 82.16.130 of the RCW introduced by Senate Bill 5939. In fact, although India's
panel request does not reference S enate Bill 5939, which was adopted onl y at a later stage, it
explicitly identifies as part of Measure 1 "any amendments, modifications, replacements, successor,
and extensions thereto, and any implementing measure or any other related measures thereto".212
7.23. With respect to the essence of the measure at issue, we note that although the United States
submits that Senate Bill 5939 "reduced the level of incentives previously available under RECIP"213,
the key subsection of the original measure providing for the economic development factors under
the additional incentive remains unchanged. 214 The changes to Section 82.16.120 introduced by
Senate Bill 5939 relate to other subsections and mostly concern administrative issues, such as the
transfer of certain responsibilities from the Washington Department of Revenue to the Washington

202 Panel Report, Russia – Tariff Treatment, para. 7.84.
203 Appellate Body Report, Chile – Price Band System, para. 144.
204 Senate Bill 5939 (Exhibit IND-4).
205 India's response to Panel question No. 1.
206 India's response to Panel question No. 102, para. 3.
207 India's response to Panel question No. 102, para. 3.
208 India's responses to Panel question Nos. 1 and 102.
209 India's response to Panel question No. 102, para. 3.
210 United States' comments on India's response to Panel question No. 102, para. 4.
211 United States' response to Panel question No. 2.
212 India's panel request, WT/DS510/2, p. 2.
213 United States' response to Panel question No. 2.
214 Senate Bill 5939, Section 3 (Exhibit IND-4).

State University extension energy program215, the deadline for participants in the RECIP to receive
payments216, and the establishment of certain procedures to manage the payment of incentives.217
As these amendments did not change the essential design or operation of the incentive in question,
we do not consider that the amendment effected by S enate Bill 5939 changed the essence of the
measure as contained in Sections 82.16.110 - 82.16.130 of the RCW.
7.24. As regards the need to make findings and recommendations in order to ensure a positive
solution to this dispute, we note that Sections 82.16.110 - 82.16.130 of the RCW, as amended by
Senate Bill 5939, embody the version of the measure that is currentl y in force, and therefore the
version of the measure to which any meaningful findings of WTO -inconsistency and concomitant
recommendations would need to be directed, and in respect of which such findings and
recommendations would need to be implemented. We also recall that India requests us to make
findings and recommendations only on the measure as amended in 2017 .218 Accordingly, we
conclude that addressing the WTO -consistency of Sections 82.16.110 - 82.16.130 of the RCW as
amended by Senate Bill 5939 is necessary to ensure a positive solution to this dispute, and hence it
is appropriate for us to make findings and recommendations on these Sections as amended.
7.25. Turning to the question of whether we should make findings and recommendations on the
original version of Sections 82.16.110 - 82.16.130 of the RCW as they existed at the time of panel
establishment, we note that India has not specifically requested us to do so. 219 Further, as noted
above, the key subsection of the original measure providing for the econo mic development factors
under the additional incentive remains unchanged. Accordingly, any findings or recommendations
on Sections 82.16.110 - 82.16.130 of the RCW as amended would necessarily address the
WTO-consistency of the additional incentive at issue, including as set forth prior to Senate Bill 5939.
Findings on the original version of Sections 82.16.110 - 82.16.130 of the RCW would therefore be
duplicative and hence unnecessary to secure a positive solution to this dispute.
7.26. As noted above220, India has also requested us to make findings and recommendations on the
'made-in-Washington' bonus set out in 82.16.165 of the RCW, which it considers to be part of
Measure 1 as amended.221 India argues that Section 82.16.165 of the RCW falls within our terms of
reference because it provides incentives "similar to RCW 82.16.120 in terms of their design and
structure and the manner in which they operate and are mere extensions of the original measure".222
India explains that the key differe nces relate to the scope of products subject to the incentive 223,
the incentive rates and calculation methods224, and the entity providing the certification.225 In India's
view, "[t]he analysis presented by India with respect to [M]easure 1 as it existed at time of the
establishment of the Panel also applies to and covers, mutatis mutandis, RCW 82.16.165 read with
WAC 504-49".226
7.27. The United States is silent on Section 82.16.165 of the RCW introduced by Senate Bill 5939.
The United States merely refers to Senate Bill 5939 in general, stating that "[a]s a factual matter,
[Senate] Bill [] 5939 reduced the level of incentives previously available under RECIP".227

215 Senate Bill 5939, Section 3(9) (Exhibit IND-4).
216 Senate Bill 5939, Section 3(10) (Exhibit IND-4).
217 Senate Bill 5939, Section 3(11) and (12) (Exhibit IND-4).
218 See para. 7.19 above.
219 See para. 7.19 above.
220 See para. 7.19 above.
221 India's responses to Panel question Nos. 1 and 102.
222 India's response to Panel question No. 104.
223 India's response to Panel question No. 104, para. 13(i): "RCW 82.16.165 provides additional
incentives for two specific types of products if they qualify as 'made in Washington'. These are solar modules
and wind turbine or tower". See also India's response to Panel question No. 104, fn 27.
224 India's response to Panel question No. 104, para. 13(ii): "[F]or each fiscal year beginning 2018
through 2021 it provides for certain base rates (for each type of project) and a made in Washington bonus
rate" (fn omitted).
225 India's response to Panel question No. 104, para. 13(iii) ("[U]nlike RCW 82.16.120 where the
Department of Revenue issued certifications, the 2017 Amendment provides that the certifications under RCW
82.16.165 would be issued by Washington State University extension energy program").
226 India's response to Panel question No. 104, para. 14.
227 United States' response to Panel question No. 2.

7.28. We do not exclude that the "made in Washington" bonus may be similar in some respects to
the Washington State additional incentive. However, we consider that the two incentives are distinct
from each other. Indeed, the text of Section 82.16.165(3)(a) indicates that the two incentives
preclude each other, as "[n]o new certification may be issued under this section to an applicant who
submits a request for or receives an annual incentive payment for a renewable energy system that
was certified under RCW 82.16.120 …". 228 We also note that the Washington State additional
incentive and the "made in Washington" bonus are stipulated in different provisions of Chapter 82.16
of the RCW. They have different product coverage and calculation methods229, and became operative
at different times.230 In our view, these considerations indicate that the "made in Washington" bonus
is not a "mere extension[] of the original measure" 231, as India argues, but a distinct incentive
resulting from the several amendments to Chapter 82.16 introduced by Senate Bill 5939.
7.29. Accordingly, we conclude that the "made in Washington" bonus is not an amen dment to the
Washington State additional incentive but a distinct measure introduced by S enate Bill 5939
following the establishment of the Panel and, therefore, falls outside our terms of reference.
We therefore see no basis to examine further whether we need to issue findings and
recommendations on the "made in Washington" bonus.
7.1.1.3 Measure 2: California Manufacturer Adder
7.30. As noted above232, the California Manufacturer Adder that India challenges is provided for in
Section 379.6 of the California Public Utili ties Code (CPUC). Rules and procedures concerning its
implementation and administration are set out in the relevant California Self-Generation Incentive
Program (SGIP) Handbook. The 2016 version of the SGIP Handbook was replaced by the 2017 SGIP
Handbook of 18 December 2017, following the establishment of the Panel.
7.31. India argues that "the discriminatory element (through local content requirements) of the
measure in question continues to be retained in 2017 SGIP Handbook". 233 According to India,
"the only dif ference [between the 2016 and the 2017 SGIP Handbook], for the purposes of the
dispute, is that the 'California Supplier' requirement under the 2016 SGIP Handbook has been
replaced by 'California Manufacturer' requirement under the 2017 SGIP Handbook". 234
India considers that "the relevant parent legislation[] together with the handbooks constitute a
'series of measures' or successors in series and the Panel should issue findings and recommendations
on the 'series of measures' taken together".235
7.32. The United States responds that Measure 2 as amended is not within the Panel's terms of
reference because it did not exist at the time of panel establishment and, therefore, "there is no
basis for the Panel to issue legal findings or recommendations with respect to" it.236
7.33. In light of India's arguments, we understand India's request for findings and
recommendations to encompass the relevant parent legislation, i.e. Section 379.6 of the CPUC, as
well as both the 2016 SGIP Handbook and the 2017 SGIP Handbook. 237 In deciding whether to
assess the WTO-consistency of the California Manufacturer Adder as implemented through the 2016
or the 2017 SGIP Handbook, or both, we will examine three issues: (i) whether India's panel request

228 Amended version of Chapter 82.16 of the Revised Code of Washington, Section 82.16.165 (3)(a)
(Exhibit IND-132).
229 India's response to Panel question No. 104. We note that India identifies a third difference which
relates to the entity issuing the certification. We are unclear about the validity of this statement since, as noted
in the descriptive part, certain responsibilities of the Department of Revenue with respect to the Washington
State additional incentive were transferred to the Washington State University extension energy program since
October 2017. See para. 2.13 above.
230 Section 82.16.165 provides that the period for filing applications under that provision started on
1 July 2017, whereas the Washington State additional incentive was already in force by then. See Amended
version of Chapter 82.16 of the Revised Code of Washington, Section 82.16.165 (1) (Exhibit IND-132).
231 India's response to Panel question No. 104.
232 See para. 2.19 above.
233 India's response to Panel question No. 8.
234 India's response to Panel question No. 8.
235 India's response to Panel question No. 102, para. 5.
236 United States' comments on India's response to Panel question No. 102, paras. 4 and 8. See also
United States' response to Panel question No. 103.
237 India's response to Panel question No. 8.

is broad enough to encompass the relevant amendment; (ii) whether there has been any change in
the essence of the measure at issue as a result of the replacement of the 2016 SGIP Handbook by
the 2017 SGIP Handbook; and (iii) whether findings and, if relevant, recommendations are necessary
to secure a positive resolution to the dispute.
7.34. We consider that India's panel request is broad enough to encompass the replacement of the
2016 SGIP Handbook by the 2017 SGIP Handbook. In fact, although India's panel request does not
refer to the 2017 SGIP Handbook, which was published only at a later stage, it explicitly identifies
as part of Measure 2 "any amendments, modifications, replacements, successor, and extensions
thereto, and any implementing measure or any other related measures thereto".238
7.35. With respect to the essence of the measure at issue, we note that, even though the 2017
SGIP Handbook provides for a different product coverage and replaces the California Supplier
requirement of the 2016 SGIP Handbook with a California Manufacturer requirement239, the 2017
SGIP Handbook does not modify the key features of the California Manufacturer Adder. Indeed, there
continues to be an additional incentive of 20 % for the installation of eligible distributed generation
resources manufactured in California, as stipulated in Section 379.6 of the CPUC. In fact, we note
that the text of Section 379.6 of the CPUC remains identical after the replacement of the 2016 SGIP
Handbook with the 2017 version. As the changes introduced by the 2017 SGIP Handbook did not
modify the essential design or operation of the California Manufacturer Adder, we do not consider
that the essence of this measure at issue was changed.
7.36. As regards the need to make findings and recommendations in order to ensure a positive
solution to this dispute, we not e that the California Manufacturer Adder , as implemented through
the 2017 SGIP Handbook, is the version of the measure currently in force, and therefore the version
of the measure to which any meaningful findings of WTO -inconsistency and concomitant
recommendations would need to be directed, and in respect of which such findings and
recommendations would need to be implemented. We also recall that India requests us to make
findings and recommendations on the relevant parent legislation, i.e. Section 379.6 of the CPUC, as
well as the 2016 SGIP Handbook and the 2017 SGIP Handbook. 240 Accordingly, we conclude that
addressing the WTO-consistency of California Manufacturer Adder as implemented through the 2017
SGIP Handbook is necessary to ensure a positive solution to this dispute, and hence it is appropriate
for us to make findings and recommendations on this measure as amended.
7.37. Turning to the question of whether we should also make findings and recommendations on
the California Manufacturer Adder as implemented through the 2016 SGIP Handbook, that is, as it
existed at the time of panel establishment, we first note that India has requested us to do so.241
7.38. We also recall that one of the criteria past panels have invoked in deciding whether to issue
findings and recommendations on the version of a measure that existed at the time of panel
establishment has been if that version of the measure continues to impair a Member's benefits under
a covered agreement.242
7.39. To explore this issue , we asked the parties to clarify whether the 2016 SGIP Handbook
continued to have an effect following its replace ment by the 2017 SGIP Handbook. 243
The United States did not address this issue. For its part, India submitted that the 2017 SGIP
Handbook addresses the issue of migration from one Handbook to the other under the California
Manufacturer Adder as follows:
Beginning June 23, 2017, Program Administrators will deny requests for California
Manufacturer status for manufacturers that have not met the above requirements,
including suppliers which were previously approved. Also, beginning June 23, 2017,
projects will receive the adder only when using equipment from an approved California

238 India's panel request, WT/DS510/2, p. 3.
239 See para. 2.15 above.
240 See para. 7.31 above.
241 See para. 7.19 above.
242 Panel Report, China – Agricultural Producers, para. 7.85 (referring to Panel Reports, Indonesia –
243 Panel question No. 110.

Manufacturer under the above requirements. New projects that apply before June 23,
2017 with a previously approved "California Supplier" may retain the adder only if that
manufacturer is re -approved under the above requirements by the Incentive Claim
stage.244
7.40. We understand from the above that, beginning 23 June 2017, manufacturers applying for
California Manufacturer status as well as previously approved "California Supplier[s]" under the 2016
SGIP Handbook will have to fulfil the requirements set out in the 2017 SGIP Handbook if they want
to start or continue benefiting from the California Manufacturer Adder. This raises the prospect that
while incentives are being made available under the 2017 SGIP Handbook, some benefits may
continue to flow from the 2016 SGIP Handbook.
7.41. India has thus demonstrated that the 2016 SGIP Handbook may continue to be operative in
certain circumstances. Bearing in mind our duty to secure a positive solution to the dispute, we
conclude that addressing the WTO-consistency of the California Manufacturer Adder as implemented
through the 2016 SGIP Handbook is also necessary to ensure a positive solution to this dispute .
Therefore, it is appropriate for us to make findings and recommendations on the California
Manufacturer Adder as it existed at the time of panel establishment.
7.1.1.4 Measure 8: Michigan Equipment Multiplier / Michigan Labour Multiplier
7.42. The Michigan Equipment Multiplier and the Michigan Labour Multiplier were contained in
Act No. 295 of 2008 at the time the Panel was established.245 This Act was amended by Act No. 342
of 2016 246 on 21 December 2016. The text of Public Act No. 342 247 indicates that the law was
"[a]pproved by the Gov ernor" of Michigan on 21 December 2016, prior to panel establishment.
However, it also states that the legislation's "effective date" is 20 April 2017, after the Panel was
established. We understand, therefore, that although Public Act No. 342 was formally enacted prior
to panel establishment on 21 March 2017, it was not yet in force on that date. Instead, on
21 March 2017, Public Act No. 295 remained in operation.
7.43. As noted above248, India requests us to make findings on the amended version of the Michigan
Equipment and Labour Multipliers, as contained in Michigan Public Act No. 342.249
7.44. For its part, the United States "does not dispute that the amended version of Measure 8 is
properly within the Panel's terms of reference" because, in the United States' view, the amended
version of the measure was enacted prior to panel establishment, even though it only entered into
force after that date.250
7.45. We note that, as the United States recognizes, the amendment to Measure 8 was enacted
prior to the Panel's establishment, but only entered into force after that date. It is, therefore, not
entirely clear to us whether Measure 8 should properly be understood as having been amended
before or after the Panel's establishment. On t he one hand, it could be argued that, insofar as the
legislation was enacted prior to establishment, it was "in existence" 251 on that date, even if it was
not yet in force. On the other hand, it might be thought that, because the amendment only entered
into force after the Panel's establishment, it did not exist on that date. In this view, the measure "in
existence" at the time of the Panel's establishment would be the original version of the measure
contained in Public Act No. 295.
7.46. Ultimately, however, we do not consider it necessary in this case to resolve this issue or to
determine whether Public Act No. 342 was in existence at the time the Panel was established. This
is because even if Public Act No. 342 was not in existence when the Panel was established, it clearly
falls within our terms of reference on the basis of the three principles set out above. As regards the

244 India's response to Panel question No. 110, para. 28.
245 Public Act No. 295 of 2008 (Exhibit IND–43).
246 Public Act No. 342 of 2016 (Exhibit IND–44).
247 Michigan Public Act No. 342 (Exhibit IND-44).
248 See para. 7.1 above.
249 India's response to Panel question No. 102, para. 7.
250 United States' comments on India's response to Panel question No. 102, para. 8.
251 Appellate Body Report, EC – Chicken Cuts, para. 156.

scope of India's panel request, we note that while that document does not reference Public Act
No. 342, which entered into force only at a l ater stage, it explicitly identifies as part of Measure 8
"any amendments, modifications, replacements, successor, and extensions thereto, and any
implementing measure or any other related measures thereto".252 In our view, India's panel request
is therefore broad enough to encompass Public Act No. 342, which in effect "replaces" and succeeds,
without changing, the provisions relating to the two Multipliers originally contained in Public Act
No. 295.
7.47. With respect to the essence of the measure at issue, the re levant text in Public Act No. 295
establishing the Equipment and Labour Multipliers is repeated word for word in Public Act No. 342,
without modification. We therefore, see no basis to conclude that Public Act No. 342 changed the
essence of the two Multipliers in any way.
7.48. As regards the need to make findings and recommendations in order to ensure a positive
solution to this dispute, we note that Public Act No. 342 is the version of the measure currently in
force, and therefore the version of the measure to which any findings of WTO -inconsistency and
concomitant recommendations would need to be directed, and in respect of which such findings and
recommendations would need to be implemented. We also recall that India requests us to make
findings and recommendations only on Public Act No. 342, and that the United States does not object
to this.253 Accordingly, we conclude that addressing the WTO -consistency of the two Multipliers as
contained in Public Act No. 342 is necessary to ensure a positive solution to this dispute, and hence
that it is appropriate for us to make findings and recommendations on these Multipliers as set forth
in Public Act No. 342.
7.49. Turning to the question of whether we should make findings and recommendations on the
version of the measure (i.e. Public Act No. 295) that applied at the time of panel establishment, we
note that India has not requested us to do so. Further, as noted above, the relevant parts of Public
Act No. 342 reproduce exactly the relevant parts of Public Act No. 295, and thus, any findings on
the former would necessarily clarify the WTO-consistency of the latter. Therefore, we conclude that
findings or recommendations on the two Multipliers as contained in Public Act No. 295 would be
duplicative and hence unnecessary to secure a positive solution to this dispute.
7.50. Accordingly, we will review the WTO -consistency of, and make findings and, if relevant,
recommendations on, the two Multipliers as contained in Public Act No. 342, and not on the original
version of these two Multipliers as contained in Public Act No. 295.
7.1.1.5 Conclusion on measures amended following panel establishment
7.51. For the foregoing reasons, we will examine Measures 1, 2, and 8 as amended.
7.52. We have explained that, in our view, an examination of Measures 1 and 8 as they were in
force at the time the Panel was established would be duplicative and unnecessary, especially bearing
in mind our duty to secure a positive resolution to this dispute and the fact that India has not
requested us to conduct such examination. Acc ordingly, we will make findings and, depending on
our findings, also recommendations only on the amended versions of Measures 1 and 8.
7.53. Conversely, as regards Measure 2, and in light of both India's request and the possibility that
benefits under the 2016 S GIP Handbook continue to exist in certain circumstances, we find it
necessary to examine the California Manufacturer Adder as implemented through both the 2016 and
2017 SGIP Handbooks in order to secure a positive resolution to this dispute. Accordingly, w e will
make findings on both the original and the amended versions of Measure 2. Further, depending on
our findings, we will make recommendations on the California Manufacturer Adder as implemented
through the 2017 SGIP Handbook, and – to the extent the 2016 SGIP Handbook continues to govern
certain aspects of the California Manufacturer Adder for past applicants – also as implemented
through the 2016 SGIP Handbook.

252 India's panel request, WT/DS510/2, p. 8.
253 India's response to Panel question No. 102, para. 7; and United States' comments on India's
response to Panel question No. 102, para. 8.

7.1.2 Measures repealed following the establishment of the Panel
7.54. We now turn to consider whether we can and should make findings and recommendations in
respect of the Minnesota solar energy production incentive (SEPI) and the Minnesota solar thermal
rebate, two programs identified by India as part of Measure 10 that were repealed following the
Panel's establishment.
7.1.2.1 Overview of applicable principles
7.55. As we explained in our preliminary ruling254, EU – PET (Pakistan) is the most recent
Appellate Body report addressing a panel's role in respect of expired or repealed measures. That
report distinguishes between two different scenarios depending on whether measures expire or are
repealed before or after panel establishment. We are faced here with the second situation since, as
noted above255, the Minnesota solar energy production incentive (SEPI) and the Minnesota solar
thermal rebate were repealed after the Panel was established.
7.56. In EU – PET (Pakistan), the Appellate Body considered, in respect of measures that have
expired or been repealed following panel establishment, that "[t]he fact that a measure has expired
is not dispositive of the question of whether a panel can address claims with respect to that
measure".256 Rather, according to the Appellate Body, "where a measure expires in the course of
the panel proceedings, the panel should, in the exercise of its jurisdiction, objectively assess whether
the 'matter' before it, within the meaning of Article 7.1 and Article 11 of the DSU, has been fully
resolved or still requires to be examined".257 In this regard, the Appellate Body emphasized that "the
repeal of a measure [does not] necessarily constitute[], without more, a 'satisfactory settlement of
the matter' within the mean ing of Article 3.4 [of the DSU], or a 'positive solution to the dispute '
within the meaning of Article 3.7" of the DSU.258
7.57. As we understand it, then, the fact that a measure was repealed after panel establishment
does not, by itself, answer the question of w hether a panel should make findings on that measure.
Rather, the central question is whether there remains an unresolved "matter" that needs to be
addressed in order to provide a positive solution to the dispute.
7.58. When might a "matter" continue to exist notwithstanding the repeal of a challenged measure?
Past cases provide some guidance on this issue. One of the central considerations is whether the
effects of a measure continue to impair the benefits for a Member under a covered agreement.259 In
light of the parties' arguments, we will have regard to this factor in assessing whether to make
findings on the two repealed programs under Measure 10.
7.59. Turning to the issue of recommendations, we note that the expiry of a measure may affect
whether a panel can make re commendations and, if so, the kind of recommendations it makes. 260
Depending on the circumstances, it may or may not be appropriate for a panel that has made findings
on a measure that was repealed after panel establishment to make recommendations in respect of
that measure.261 Indeed, the Appellate Body has held that it may amount to legal error for a panel
to recommend that a Member bring into conformity a measure that the Panel has found to have
been repealed.262 In our view, therefore, a panel's decision whet her to make recommendations in
respect of a repealed measure must depend on a careful examination of the nature of the subsisting
"matter", and whether there are concrete actions or steps that a respondent could take, beyond
repeal, to ensure that the repe aled measure is no longer impairing benefits accruing to a Member
under the covered agreements.

254 Preliminary ruling of the Panel, paras. 3.27-3.28, Annex D-1.
255 See para. 2.56 above.
256 Appellate Body Report, EU – PET (Pakistan), paras. 5.25 and 5.27 (referring to Appellate Body
Report, EU – Fatty Alcohols (Indonesia), para. 5.179).
257 Appellate Body Report, EU – PET (Pakistan), para. 5.43.
258 Appellate Body Report, EU – PET (Pakistan), para. 5.27 (fns omitted).
259 Panel Report, China – Agricultural Producers, para. 7.85 (fns omitted).
260 Appellate Body Report, US – Upland Cotton, para. 272.
261 Appellate Body Report, EU – Fatty Alcohols (Indonesia), para. 5.200 and cases cited therein.
262 Appellate Body Report, US – Certain EC Products, para. 81.

7.60. Bearing these considerations in mind, we now turn to examine whether we can and should
examine the WTO -consistency of the SEPI and the Minnesota solar thermal rebate, even though
both programs were repealed after the Panel was established.
7.1.2.2 Minnesota solar energy production incentive (SEPI) under Measure 10
7.61. As noted above263, the Minnesota legislature repealed the Minnesota solar energy production
incentive program on the installation of solar photovoltaic (PV) modules (SEPI) on 22 May 2017,
after the Panel was established.264
7.62. India requests that we nonetheless issue both findings and recommendations on this program,
arguing that "the measure continues to be in operation and has an ongoing effect". 265 India recalls
in this regard that the SEPI explicitly provides that "[w]hile the last date for approval of an application
for SEPI was fixed at May 1, 2017, the incentives payment may continue up to 10 years".266
7.63. The United States does not explicitly address India's request for findings and
recommendations with respect to this program; it merely asserts that "[it] does not dispute that
those measures were in existence on the date of panel establishment". 267 Moreover, the
United States does not contest that "[o]wners whose applications were approved by May 22, 2017,
are eligible to receive annual incentive payments under the Minnesota Solar Energy Production
Incentive for a period of ten years from the time their i nstalled solar energy system begins
generating electricity". The United States adds that "[n]o further payments, however, are permitted
after October 31, 2028".268 We understand this as indicating that the United States does not contest
India's assertion that incentive payments under the SEPI may continue even though the program
has been repealed.
7.64. We note that both parties agree that payments under the SEPI may continue, even after
repeal, for those applicants whose applications were approved prior to May 2017.269 We understand
this as confirming that the SEPI has ongoing effects, in the form of potential payments, that continue
to exist even after the program's repeal. As noted above, past cases have indicated that it may be
appropriate for a panel to assess the WTO-consistency of an expired measure if that measure may
continue to have effects.
7.65. In light of the above, we consider it appropriate to make findings on this program, even
though it was repealed during these proceedings.
7.66. Turning to the question of whether we should make recommendations if we find that the SEPI
is WTO-inconsistent, we recall that the Appellate Body has indicated that "the fact that a measure
has expired 'may affect' what recommendation a panel may make".270 We are of the view that, given
the potential continuing effects of the SEPI program , a finding of inconsistency would warrant a
qualified recommendation that the United States bring itself into compliance, to the extent that the
incentives under this program may continue to be paid following its repeal, and thus may continue
to impair benefits accruing to India under a covered agreement.

263 See para. 2.56 above.
264 Senate Session Laws, Chapter 94, S.F. 1456 (Exhibit IND-100). We discuss the relevance of this
repeal in our findings below.
265 India's response to Panel question No. 102, para. 8.
266 India's response to Panel question No. 102, para. 8 (referring to 2017 Minnesota Session Laws, S. F.
No. 1456, Chapter 94, Article 10, Section 22, Subdivision 1 (Exhibit IND-100)).
267 United States' comment on India's response to Panel question No. 102.
268 United States' response to Panel question No. 117, para. 8.
269 We nonetheless note that India and the United States do not agree on the deadline for approving
applications and the last day of payment. The disagreement between the parties on these particular issues is
irrelevant for the purposes of our analysis.
270 Appellate Body Reports, China – Raw Materials, para. 264.

7.1.2.3 Minnesota solar thermal rebate under Measure 10
7.67. As noted above271, the Minnesota legislature repealed the rebate program on the installation
of solar thermal systems on 22 May 2017, after the Panel was established.272 We recall that, following
a request for a preliminary ruling by the United States, we found that the Minnesota solar thermal
rebate is within our terms of reference.273 Our preliminary ruling addressed the evolution of India's
case from its consultations request to its panel request in regard to the Minnesota solar thermal
rebate274, not the fact that the Minnesota solar thermal rebate was repealed following panel
establishment. The United States did not contest the latter issue in its preliminary ruling request,
and indeed it arose only at a later stage in these proceedings.
7.68. In response to a question from the Panel , India clarified that, d espite the repeal of the
Minnesota solar thermal rebate following panel establishment, it is seeking both findings and
recommendations on this program because, in India's view, it "continues to be in operation and has
an ongoing effect".275 In particular, according to India, "applications whi ch were approved prior to
the effective date of Senate File [sic] No. 1456 w[ill] continue to receive incentives until the year
2023".276
7.69. The United States does not explicitly address India's request for findings and
recommendations with respect to this program; it merely asserts that "[it] does not dispute that
those measures were in existence on the date of panel establishment". 277 However, the
United States submits that, as a matter of fact, "[r]ebate payments are not ongoing" under this
program. According to the United States, the legislation that repealed the Minnesota solar thermal
rebate (i.e. Senate Bill No. 1456) provides that "no rebate payments would be paid to owners whose
applications were approved after May 30, 2017". 278 Senate Bill No. 1456 further clarifies that
"[s]ystem owners were required to install the approved solar thermal system by December 31, 2017,
to remain eligible for the rebate payment [and] [t]he Minnesota Department of Revenue was
required to release rebate payments by July 1, 2018, at the latest".279 Therefore, the United States
contends that "the latest -in-time payment under the Minnesota Solar Thermal Rebate would have
occurred no later than July 1, 2018".280
7.70. India responds that the United States has wrongly relied upon evidence, name ly certain
excerpts from the 2017 Guide for Applicants, which does not seem to be applicable to the Minnesota
solar thermal rebate program.281 India further states that, even if the Guide were applicable to the
solar thermal rebate, it would not override the provisions of the parent statute, in particular
Article 10, Section 28 of the Senate Bill No. 1456, which provides that no rebate will be paid to
applications approved after its effective date. To the contrary, according to India, the Guide indicates
that "applications which were approved prior to the effective date of Senate File [sic] No. 1456 would
continue to receive incentives until the year 2023".282
7.71. We note that Section 28 of Senate Bill No. 1456 provides as follows with respect to the repeal
of the Minnesota solar thermal rebates:
(a) No rebate may be paid under Minnesota Statutes 2016, section 216C.416, to an
owner of a solar thermal system whose application was approved by the commissioner
of commerce after the effective date of this act.

271 See para. 2.56 above.
272 Senate Session Laws, Chapter 94, S.F. 1456 (Exhibit IND-100). We discuss the relevance of this
repeal in our findings below.
273 Preliminary ruling of the Panel, para. 4.37, Annex D-1.
274 United States' first written submission, paras. 41-42.
275 India's response to Panel question No. 102, para. 8.
276 India's response to Panel question No. 102, para. 8.
277 United States' comment on India's response to Panel question No. 102.
278 United States' response to Panel question No. 117, para. 9.
279 United States' response to Panel question No. 117, para. 9.
280 United States' response to Panel question No. 117, para. 9.
281 India's comment on the United States' response to Panel question No. 117 (referring to the
Minnesota Department of Commerce Guidance for Completing the Made in Minnesota Solar Incentive
Application - A 2017 Reference Guide for Applicants, 30 December 2016 (Exhibit US-28)).
282 India's comments on the United States' response to Panel question No. 117, para. 6.

(b) U nspent money remaining in the account established under Minnesota Statutes
2014, section 216C.416, as of July 2, 2017, must be transferred to the C-LEAF account
established under Minnesota Statutes 2016, section 116C.779, subdivision 1.
7.72. Section 28(a) refers to the point in time at which an application must be approved in order
for the applicant to receive rebate payments. However, the provision does not address the issue of
the timing of any final payment, in particular in respect of applications approved prior to the effective
date of the repeal legislation . Likewise, Section 28(b) refers only to "unspent money" being
transferred to another account, but it does not specify whether rebates will continue to be paid from
this new account. Accordingly, in our v iew, the text of Section 28 of Senate Bill No. 1456 does not
clearly answer the question whether rebate payments may continue following the repeal of the
Minnesota solar thermal rebate, in particular with respect to previously approved recipients.
7.73. Turning to the section of the 2017 Guide for Applicants on which the United States relies as
evidence that post-repeal incentive payments are not permitted, we note that it provides that the
"[p]ayments will [be] allocated as provide[d] under Minnesota Statute 216C.415".283 This section of
the Guide seems to refer only to the SEPI program, as it deals with "[i]ncentive payments … to an
owner of grid-connected solar photovoltaic modules…".284 There is no mention in this section of solar
thermal systems, which are the products at issue under the Minnesota solar thermal rebate program
set out in Section 216C.416.
7.74. At the same time, other parts of the 2017 Guide for Applicants are , in our view, more
ambiguous as concerns the Guide's scope. For instance, in one place the Guid e indicates that
applicants "will be able to select which Made in Minnesota Program [they] would like to apply for …
PV Production Incentive, Solar Thermal Rebate or PV Community Solar Garden Program". 285 There
are also other references to solar thermal systems throughout the Guide.286
7.75. Based on the evidence before us, it is unclear whether the above -referenced provisions on
payments contained in the 2017 Guide for Applicants apply to the Minnesota solar thermal rebate
and, if so, how this Guide relates to the r elevant Sections of the 2016 Minnesota Statutes,
particularly in light of their repeal on 22 May 2017 by Senate Bill No. 1456.
7.76. We recall that, having requested us to make findings and recommendations on the Minnesota
solar thermal rebate, India bears the b urden of showing that this repealed program has ongoing
effects. In light of the limited evidence before us, we are not in a position to determine whether
payments under the Minnesota solar thermal rebate program continue following its repeal.
Accordingly, we find that India has not made a prima facie case that the Minnesota solar thermal
rebate has ongoing effects, and therefore, constitutes a "matter" before us which "still requires to
be examined" in order to provide a positive solution to the dispute.287 As a result, we conclude that
India has not demonstrated that we need to make findings and recommendations on the Minnesota
solar thermal rebate in order to secure a positive resolution to this dispute.
7.1.2.4 Conclusion on measures repealed following the establishment of the Panel
7.77. For the foregoing reasons, we will not make any findings or recommendations on the
Minnesota solar thermal rebate. As regards the SEPI, we will make findings and qualified
recommendations to the extent that incentives granted under this program may continue to be paid
following its repeal, and thus may continue to impair the benefits accruing to India under a covered
agreement.

283 Minnesota Department of Commerce Guidance for Completing the Made in Minnesota Solar Incentive
Application - A 2017 Reference Guide for Applicants, 30 December 2016, p. 3 (Exhibit US-28).
284 2016 Minnesota Statutes, Section 216C.415 (Exhibits IND-66 and IND-100) (emphasis added).
285 Minnesota Department of Commerce Guidance for Completing the Made in Minnesota Solar Incentive
Application - A 2017 Reference Guide for Applicants, 30 December 2016, p. 9 (Exhibit US-28)
(emphasis added).
286 Minnesota Department of Commerce Guidance for Completing the Made in Minnesota Solar Incentive
Application - A 2017 Reference Guide for Applicants, 30 December 2016, pp. 12 and 17 (Exhibit US-28).
287 Appellate Body Report, EU – PET (Pakistan), para. 5.43.

7.2 Order of analysis
7.78. India presents its claims in this dispute beginning with Article III:4 of the GATT 1994,
followed by Articles 2.1 and 2.2 of the TRIMs Agreement, Articles 3.1(b), 3.2, and 25 of the
SCM Agreement, and, finally, Article XXIII:1(a) of the GATT 1994.288 The United States has
addressed India's claims in the same order.289
7.79. The parties suggest that the Panel follow the same order in its own analysis.290
7.80. According to the Appellate Body, "[a]s a general principle, panels are free to structure the
order of their analysis as they see fit"; "[a]t the same time, panels must ensure that they proceed
on the basis o f a properly structured analysis to interpret the substantive provisions at issue." 291
More specifically, as regards the specific provisions invoked by India in this dispute, the
Appellate Body has explained that "the national treatment obligations in Articl e III:4 of the
GATT 1994 and the TRIMs Agreement, and the disciplines in Article 3.1(b) of the SCM Agreement,
are cumulative", and that there is "nothing in these provisions to indicate that there is an obligatory
sequence of analysis to be followed where claims are made under Article III:4 of the GATT 1994 and
the TRIMs Agreement, on the one hand, and Article 3.1(b) of the SCM Agreement, on the other
hand."292 Thus, the order of analysis of claims under Article III:4 of the GATT 1994, the
TRIMs Agreement, an d Article 3 of the SCM Agreement falls "within the panel's margin of
discretion".293
7.81. In considering how to exercise this discretion, we recall that for India, "the core of [its] claims
lie[s] in the discriminatory treatment between the imported products and 'like' products of domestic
origin"294, and that, according to India, "[its] claims under the TRIMs Agreement and the
SCM Agreement clearly emanate from the violation of Article III:4 of the GATT 1994".295 In light of
this position, and absent "a mandatory sequence of analysis" among these provisions "which, if not
followed, would amount to an error of law"296, we see no reason to depart from the sequence jointly
advocated by the parties.297 We also note that several panels facing similar claims have adopted this
sequence.298
7.82. We will therefore start by reviewing India's claims under Article III:4 of the GATT 1994, before
turning to India's additional, follow-on "discriminatory treatment" claims under Articles 2.1 and 2.2
of the TRIMs Agreement and Articles 3.1(b) and 3.2 of the SCM Agreement.

288 See India's first and second written submissions, and its opening and closing statements at the first
and second meetings of the Panel.
289 See the United States' first and second written submissions, and its opening and closing statements
at the first and second meetings of the Panel. The United States has not specifically addressed India's claim
under Article XXIII:1(a) of the GATT 1994.
290 More specifically, India "invites the Panel to assess the claims in the following order of analysis for
each of the measures at issue: (i) the Panel may first examine India's claims under Article III:4 of the
GATT 1994; (ii) the Panel may then rule on India's claims with respect to Article 2.1 of the TRIMs Agreement
followed by the claims under Article 2.2 of the TRIMs Agreement; (iii) the Panel may then rule on claims under
Article 3.1(b) read with Article 3.2 of the SCM Agreement followed by claims under Article 25 of the
SCM Agreement; and (iv) finally, the Panel may rule on claims under Article XXIII:1 of the GATT 1994". India's
opening statement at the first meeting of the Panel, para. 16. As regards Article XXIII:1 of the GATT 1994,
India specifies that it "has claimed that the measures at issue, individually and/or collectively, nullify or impair
the benefits accruing to it under Article XXIII:1(a) of the GATT 1994". India's opening statement at the first
meeting of the Panel, para. 15. See also the United States' response to Panel question No. 53.
291 Appellate Body Report, Canada – Wheat Exports and Grain Imports, paras. 126-127.
292 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program, para. 5.5.
293 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program, para. 5.8
(footnote omitted, referring to Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 126).
294 India's opening statement at the first meeting of the Panel, para. 11 (emphasis original).
295 India's opening statement at the first meeting of the Panel, para. 11.
296 Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 109.
297 According to the Appellate Body, "panels may find it useful to take account of the manner in which a
claim is presented to them by a complaining Member". Appellate Body Report, Canada – Wheat Exports and
Grain Imports, para. 126.
298 Several panels facing claims under Article III:4 of the GATT 1994, Article 2 of the TRIMs Agreement,
and Article 3 of the SCM Agreement adopted an order of analysis that sequenced these three claims in the
aforementioned order. See Panel Reports, China – Auto Parts; Canada – Autos; and Brazil – Taxation.

7.83. Following our analysis of India's claims concerning "discriminatory treatment", we will turn to
India's notification claim under Article 25 of the SCM Agreement and its claim of nullification or
impairment of benefits under Article XXIII:1(a) of the GATT 1994.
7.3 India's claims under Article III:4 of the GATT 1994
7.3.1 Introduction
7.84. According to India, each measure at issue 299 is inconsistent with the obligations of the
United States' under Article III:4 of the GATT 1994 because they accord treatment less favourable
to imported products than to like domestic products, i.e. products originating in specific
municipalities or States of the United States.300 According to the United States, India has failed to
establish that the measures at issue breach Article III:4 of the GATT 1994.301 In particular, according
to the United States, India has not met its burden of demonstrating that these measures (i) affect
the sale, purchase, transportation, distribution or use of products; or ( ii) accord less favourable
treatment to imported products within the meaning of that provision.302
7.85. To establish a violation of Article III:4 of the GATT 1994, the following three elements must
be satisfied:
a) that the imported and domestic products at issue are like products;
b) that the measure at issue is a "law, regulation, or requirement affecting their internal sale,
offering for sale, purchase, transportation, distribution, or use"; and
c) that the imported products are accorded treatment less favourable than that accorded to
like domestic products.303
7.86. We now turn to analyse each of these elements in respect of each of the measures at issue.
As discussed above304, Measures 1, 2, and 8, and two programs under Measure 10 were amended
or repealed following panel establishment. We have concluded that we will make findings and, where
appropriate, recommendations, on India's claims with respect to Measures 1, 2 and 8 as amended.
In the case of Measure 2, we will also examine the original version as elaborated by the 2016 SGIP
Handbook given that some of its aspects may continue to be operative. As regards the two programs
under Measure 10 repealed following panel establishment, we have decided not to make any findings
or recommendations on the Minnesota solar thermal rebate. We will only make findings on the
Minnesota s olar energy production incentive program on the installation of solar photovoltaic
modules (SEPI), and issue recommendations on this program insofar as it has ongoing effects.
7.3.2 Products at issue and "likeness"
7.87. India argues that each of the measures at issue discriminates between like imported and
domestic products. More sp ecifically, according to India, the measures at issue provide for
differential treatment based on where the products were manufactured or assembled, or based on
the origin of the workforce used in their manufacture. India contends that because the origin of the

299 India's first written submission, para. 5. See also India's first written submission, paras. 30, 150,
253, 346, 443, 543, 655, 752, 849, 991 and 1099.
300 India's first written submission, paras. 31, 151, 254, 347, 444, 544, 656, 753, 850, 992 and 1100.
In its panel request, India claims that the challenged measures "are inconsistent with the obligations of the
U.S. under the … GATT 1994", "[i]n particular, … Article III:4 of the GATT 1994 because the measures provide
less favourable treatment to imported products than that accorded to like products … originating in [relevant
domestic territories, i.e. municipalities or States]". India's panel request, WT/DS510/2, pp. 2-11.
301 United States' first written submission, para. 75.
302 United States' first written submission, para. 75.
303 Appellate Body Report, Korea – Various Measures on Beef, para. 133, referenced in India's first
written submission, paras. 33, 153, 256, 349, 446, 546, 658, 755, 852, 994 and 1102; and United States' first
written submission, para. 77. See also European Union's third party written submission, para. 18.
304 See Section 7.1 above.

relevant products is the "sole criterion" for differential treatment under the measures at issue,
such products qualify as like products within the meaning of Article III:4 of the GATT 1994.305
7.88. The United States has not contested that the relevant dom estic and imported products are
like products within the meaning of Article III:4, nor does it challenge the legal standard for likeness
relied upon by India.
7.89. The Appellate Body has stated that "a determination of 'likeness' under Article III:4 [of the
GATT 1994] is, fundamentally, a determination about the nature and extent of a competitive
relationship between and among products".306 Usually, assessing whether products are like requires
a careful and holistic analysis of the evidence on the record, taking into account the four Border Tax
Adjustment criteria.307 However, several past cases support the proposition that where a measure
distinguishes between products solely on the basis of origin, the likeness of the products so
distinguished can be presumed. 308 Notably, in Argentina – Financial Services, the Appellate Body
recognised that various "[p]anels have held that, rather than invariably establishing 'likeness' on the
basis of the relevant criteria, a complainant may establish 'likeness' by demonstrating that the
measure at issue makes a distinction based exclusively on the origin of the product." 309 As India
argues310, this indicates that where a measure distinguishes between products solely on the basis of
origin, a detailed likeness analysis based on the Border Tax Adjustment criteria may not be
necessary.
7.90. We now examine whether the relevant products under each measure at issue are like w ithin
the meaning of Article III:4 of the GATT 1994, and in particular whether, as India argues, each of
the measures distinguishes between relevant products solely on the basis of origin.
7.3.2.1 Measure 1: Washington State additional incentive
7.91. As noted311, the Was hington State additional incentive is provided for customer -generated
electricity produced using solar inverters, solar modules, stirling converters, or wind blades
manufactured in Washington State.
7.92. India has identified the following products as relevant under the Washington State additional
incentive: (i) solar modules; (ii) stirling converters; (iii) inverters used in a solar or wind generator;
and (iv) blades used in a wind generator. 312 India argues that "the only distinguishing criteria for
obtaining the additional/higher incentives is whether or not certain specified components are of
Washington-origin."313 India further argues that "RCW 82.16.120 (4) read with WAC 458 -20-273
(501)(b) makes the origin of the specified products as the sole criteria for granting higher incentives
upon production of electricity using a renewable energy system."314
7.93. The United States has not contested this aspect of India's claim under Article III:4 of the
GATT 1994.

305 India's first written submission, paras. 35-40, 155-161, 258-264, 351-356, 448-453, 548-553,
660-666, 757-766, 854-862, 996-1001 and 1104-1109 (referring to Panel Reports, India – Autos, para. 7.174;
Canada – Wheat Exports and Grain Imports, para. 6.164; Argentina – Hides and Leather,
306 Appellate Body Report, EC – Asbestos, para. 99.
307 Appellate Body Report, EC – Asbestos, paras. 101-103.
308 See e.g. Panel Reports, India – Autos, para. 7.174; Canada – Autos, para. 10.74; and Turkey – Rice,
paras. 7.214-7.216.
309 Appellate Body Report, Argentina – Financial Services, para. 6.36.
310 India's first written submission, paras. 35-40, 155-161, 258-264, 351-356, 448-453, 548-553, 660-
666, 757-766, 854-862, 996-1001 and 1104-1109 (referring to Panel Reports, India – Autos, para. 7.174;
Canada – Wheat Exports and Grain Imports, para. 6.164; Argentina – Hides and Leather, paras. 11.168-
311 See para. 2.8 above.
312 India's first written submission, para. 35.
313 India's first written submission, para. 36.
314 India's first written submission, para. 40.

7.94. Section 82.16.120(4) of the Revised Code of Washington (RCW)315, which establishes the
different economic development factors to be applied to the base rate in order to calculate the final
incentive rate, refers to the same products as those identified by India.316
7.95. Section 458-20-273(601)(a) of the Washington Adminis trative Code (WAC) defines the
products at issue. 317 Additionally, paragraph (b) of Section 458-20-273(601) of the WAC clarifies
that "the [D]epartment of [R]evenue considers various factors in determining if a person combining
various items into a single p ackage is engaged in a manufacturing activity" , and that "[a]ny single
one of the … factors is not considered conclusive evidence of a manufacturing activity".318 The WAC
further provides that, following a request from the manufacturer addressed to the Department of
Revenue, and a field visit by the Department of Revenue of the manufacturing facilities to view the
manufacturing process for the product, the Department of Re venue will approve or disapprove the
manufacturer's certification of a product as made in Washington State.319
7.96. Accordingly, to qualify for the differential treatment in Section 82.16.120(4) of the RCW, the
products must comply with the definitions contained in Section 458-20-273(601)(a) of the WAC,
and the manufacturer of the products must obtain a certification of a product qualifying as made in
Washington State from the Department of Revenue. Imported products may meet the former but
not the latter requirement.
7.97. Thus, we find that, as India has argued, the Washington State additional incentive
distinguishes solely on the basis of origin with regard to solar modules, stirling converters, inverters
used in a solar or wind generator , and blades used in a wind g enerator. In light of the above-cited
guidance from past cases, and noting the absence of any rebuttal by the United States on this point,
we find that the products at issue under Measure 1 are like for the purposes of Article III:4 of the
GATT 1994.
7.3.2.2 Measure 2: California Manufacturer Adder
7.98. As noted 320, the California Manufacturer Adder consists of an additional 20% incentive
payment for the installation of eligible distributed generation resources "from a California Supplier"
(under the 2016 California Self-Generation Incentive Program (SGIP) Handbook) or generation and
energy storage equipment "manufactured in California" (under the 2017 SGIP Handbook).
7.99. India has identified the relevant product under the California Manufacturer Adder as the
"'eligible equipment' … as set out under the [SGIP] Handbooks".321 In its responses to our questions,
India clarified that the eligible products under the 2016 SGIP Handbook are "eligible distributed
generation or [Advanced Energy Storage] AES technologies" 322, whereas the 2017 SGIP Handbook
limits eligible products to c ertain generation equipment and certain storage equipment. 323 India
argues that "[t]he text of the measures at issue under the Handbooks that infix the California
Manufacturer Adder indicates that the determinant of the challenged additional incentive is bas ed
either on the specific eligible equipment having been manufactured in California or on the specified

315 Revised Code of Washington, Chapter 82.16, revised by Revised Senate Bill 5939 (Exhibit IND-5).
316 See also Washington Administrative Code, Section 458-20-273 (Exhibit IND-3).
317 See para. 2.8 above.
318 These factors are the following: (i) the ingredients are purchased from various suppliers; (ii) the
person combining the ingredients attaches his or her own label to the resulting product; (iii) the ingredients
are purchased in bulk and broken down to smaller sizes; (iv) the combined product is marketed at a
substantially different value from the selling price of the individual components; and (v) the person combining
the items does not sell the individual items except within the package. See Washington Administrative Code,
Section 458-20-273 (601)(b) (Exhibit IND-3).
319 Washington Administrative Code, Section 458-20-273 (602) (Exhibit IND-3).
320 See para. 2.14 above.
321 India's first written submission, para. 161. See also India's first written submission, paras. 155-156.
322 India's response to Panel question No. 109, para. 26 (referring to the 2016 SGIP Handbook,
323 India's response to Panel question No. 109, para. 27 (referring to the 2017 SGIP Handbook, p. 26
(Exhibit IND-15)).

percentage of total value of the eligible equipment having been manufactured in California by a
California Supplier or a California Manufacturer, as the case may be".324
7.100. The United States has not contested this aspect of India's claim under Article III:4 of the
GATT 1994.
7.101. The 2016 and 2017 SGIP Handbooks define some of the products at issue.325 As mentioned
above326, both the 2016 and 2017 SGIP Handbooks distinguish between, on the one hand, "eligible
distributed generation or AES technologies from a California Supplier "327 and "equipment …
manufactured in California"328, respectively, and, on the other hand, relevant distributed generation,
and AES technologies and equipment of another origin.
7.102. Under both requirements, i.e. " California Supplier " in the 2016 SGIP Handbook and
"manufactured in California" in the 2017 SGIP Handbook, the legislation distinguishes between the
place where the products are manufactured. The definition of "California Supplier" under the 2016
SGIP Handbook explicitly requires that the supplier manufacture the relevant products in California,
in addition to other requirements concerning the location in California of the owners or policymaking
officers' domicile, and the permanent principal office or the manufacturing facility. It further includes
references to the California residence of the workers and the need for the company to be licensed
in California. In turn, t he 2017 SGIP Handbook provides that the "manufactured in California"
requirement will be fulfilled "if at least 50% of the value of the capital equipment has been made in
a dedicated production line by an approved California Manufacturer" .329 The definition of California
Manufacturer under the 2017 SGIP Handbook reiterates the link to the California origin of the
equipment by requiring that the manufacturing facility be located in California, and the manufacturer
be licensed to conduct business in that state. 330 It is therefore clear , in our view, that imported
products could never qualify for the California Manufacturer Adder, either under the 2016 or the
2017 SGIP Handbook.
7.103. Accordingly, we find that, as India has argued, the California Manufacturer Adder
distinguishes solely on the basis of origin with regard to the relevant distributed generation
technologies. In light of the above -cited guidance from past cases, and noting the absence of any
rebuttal by the United States on this point, we find that the products at issue under Measure 2 are
like for the purposes of Article III:4 of the GATT 1994.
7.3.2.3 Measure 4: Montana tax incentive
7.104. As explained above331, the Montana tax incentive for ethanol production provides "tax
incentive[s] for the production of ethanol to be blended for ethanol -blended gasoline"332, provided
that production is in Montana and uses Montana agricultural products, including Montana wood or
wood products.333
7.105. According to India, under the Montana tax incentive , "greater incentives are provided for
ethanol which is produced from Montana agricultural products including Montana wood and wood -
based products".334 In India's view, "the tax incentive being provided to ethanol distributors is based
solely on their usage of raw material sourced from Montana ", and "[t]he incentive is, therefore,
contingent on and proportionate to the origin of the raw material".335 India concludes that because
"the distinction between the ethanol produced is limited to their origin of the raw material used [sic]

324 India's first written submission, para. 156.
325 See para. 2.18 above. We recall that the 2016 SGIP Handbook does not define the term "eligible
distributed generation technologies", and the 2017 SGIP Handbook provides a list of equipment covered under
the term "generation and energy storage equipment" instead of providing a definition.
326 See paras. 2.15 - 2.17 above.
327 2016 SGIP Handbook, p. 34 (Exhibit IND-16) (emphasis added).
328 2017 SGIP Handbook, p. 25 (Exhibit IND-15) (emphasis added).
329 2017 SGIP Handbook, p. 26 (Exhibit IND-15).
330 2017 SGIP Handbook, p. 102 (Exhibit IND-15).
331 See para. 2.20 above.
332 Montana Annotated Code, Section 15-70-502 (Exhibit IND-31).
333 Montana Annotated Code, Section 15-70-522 (Exhibit IND-34).
334 India's first written submission, para. 351.
335 India's first written submission, para. 356.

… it will be held to be 'like' to those products of Montana -origin for the purposes of Article III:4 of
the GATT 1994".336
7.106. The United States has not contested this aspect of India's claim under Article III:4 of the
GATT 1994.
7.107. As we understand it, India's position is that there are potentially two sets of products that
are like for the purposes of analysing the Montana tax incentive: (i) wood and wood-based products;
and (ii) ethanol made from wood or wood-based products.
7.108. Section 15-70-522 of the Montana Annotated Code (MCA) provides for a tax incentive
payable to ethanol distributors on "ethanol … produced in Mon tana from Montana agricultural
products, including Montana wood or wood products". 337 The measure does not make provision for
a tax incentive on ethanol produced outside of Montana. Similarly, ethanol produced in Montana
from non-Montana wood or wood -based products is only eligible for the incentive "when Montana
products are not available".338 The measure does not suggest that there is any difference between
Montana and non-Montana-origin ethanol and wood and wood -based products in terms of physical
characteristics, consumer tastes and habits, tariff classification, end-uses, or any other criterion. Nor
does it suggest that there is any difference between ethanol produced in Montana from Montana -
origin wood or wood-based products, on the one hand, and ethanol produced outside of Montana or
using non-Montana wood or wood-based products, on the other hand. Moreover, the United States
has not argued that any such differences exist.
7.109. Accordingly, we find that, as India has argued, the Montana tax incentive distinguishes solely
on the basis of origin with regard to ethanol and wood and wood -based products. In light of the
above-cited guidance from past cases, and noting the absence of any rebuttal by the United States
on this point, we find that the products at issue u nder Measure 4 are like for the purposes of
Article III:4 of the GATT 1994.
7.3.2.4 Measure 5: Montana tax credit
7.110. As noted above339, the Montana tax credit for biodiesel blending and storage provides for
"special fuel distributors" and "owners or operators of a motor fuel outlet" to receive a "credit against
[certain] taxes … for the costs of investments in depreciable property used for storing or blending
biodiesel with petroleum diesel for sale".340 This incentive is only available if the investment for which
the credit is claimed is used primarily to blend petroleum diesel with biodiesel made entirely from
Montana-produced feedstocks.341
7.111. India argues that the availability of the tax credit is "contingent on the use of biodiesel which
is produced entirely from Mont ana-origin feedstock". Thus, in India's view, the measure creates a
"distinction between the biodiesel and feedstock used to manufacture it … on the basis of the place
of origin".342
7.112. The United States does not contest this aspect of India's claim under Arti cle III:4 of the
GATT 1994.
7.113. As we understand it, there are potentially two sets of products that, according to India, are
like for the purposes of analysing Measure 5: feedstock from which biodiesel is made, and biodiesel
itself.343
7.114. Section 15-32-703(4)(a) o f the Montana Annotated Code (MCA) indicates that the tax
incentives at issue are available only "for depreciable property used primarily to blend petroleum

336 India's first written submission, para. 336.
337 Montana Annotated Code, Section 15-70-522 (Exhibit IND-34).
338 Montana Annotated Code, Section 15-70-522 (Exhibit IND-34).
339 See para. 2.24 above.
340 Montana Annotated Code, Section 15-32-703(1) (Exhibit US-11).
341 Montana Annotated Code, Section 15-32-703(4)(a) (Exhibit US-11).
342 India's first written submission, paras. 448 and 449.
343 India's first written submission, para. 469.

diesel with biodiesel made entirely from Montana -produced feedstocks".344 The measure does not
make provision for incentives to be paid in respect of investments used to blend petroleum diesel
with biodiesel made partly or wholly from non-Montana-produced feedstocks. However, the measure
does not suggest, and the United States has not argued, that there i s any difference between
Montana-origin and non -Montana origin feedstock as an input into biodiesel. Neither is there any
suggestion on the record that biodiesel made from Montana-origin feedstock is in any way different
from biodiesel made from non-Montana-origin feedstock.
7.115. Accordingly, we find that, as India has argued, the Montana tax credit distinguishes solely
on the basis of origin with regard to feedstock and biodiesel produced using feedstock. In light of
the above -cited guidance from past cases, an d noting the absence of any rebuttal by the
United States on this point, we find that the products at issue under Measure 5 are like for the
purposes of Article III:4 of the GATT 1994.
7.3.2.5 Measure 6: Montana tax refund
7.116. As explained above345, the Montana tax refund provides that "licensed distributors" and
"owners and operators of retail motor fuel outlets" may receive a tax refund on the sale of biodiesel
"produced entirely from biodiesel ingredients produced in Montana".346
7.117. India submits that "the basis on which the biodiesel is differentiated for the purposes of the
tax refund is the place of origin of the raw material , i.e. biodiesel ingredients". 347 In India's view,
because "the only basis of distinction between the biodiesel as well as the ingredients used to
manufacture it is on the basis of the place of production of the ingredients, the products, viz.
biodiesel and the ingredients used to manufacture it" from Montana, on the one hand, and from
outside Montana, on the other hand, are like for the purposes of Article III:4.348
7.118. The United States does not contest this aspect of India's claim under Article III:4 of the
GATT 1994.
7.119. We recall that Sections 15 -70-433(1) and (2) of the Montana Annotated Code (MCA) both
specify that the relevant tax incentives are only available "if the biodiesel is produced entirely from
biodiesel ingredients produced in Montana". 349 Under Measure 6, no incentive is available for
biodiesel produced from ingredients made wholly or partly from ingredients produced outside
Montana. The text of Measure 6 does not suggest, and the United States has not argued, that any
qualitative difference exists between biodiesel produced from Montana -origin ingredients and
biodiesel produced wholly or partly from ingredients originating outside Montana. Nor does the
evidence indicate that the ingredients themselves may have different qualities depending on whether
they are produced in Montana or somewhere else.
7.120. Accordingly, we find that, as India has argued, the Montana tax refund distinguishes solely
on the basis of origin with regard to biodiesel and biodiesel ingredients. In light of the above -cited
guidance from past cases, and noting the absence of any rebuttal by the United States on this point,
we find that the products at issue under Measure 6 are like for the purposes of Article III:4 of the
GATT 1994.
7.3.2.6 Measure 7: Connecticut additional incentive
7.121. As noted above350, the Connecticut additional incentive makes available " direct financial
incentives, in the form of performance-based incentives or expected performance-based buydowns,
for the purchase or lease of qualifying residential solar photovoltaic systems" (solar PV systems).351
Importantly, additional incentives of up to 5% of the ordinarily available incentive may be provided

344 Montana Annotated Code, Section 15-32-703(4)(a) (Exhibit US-11).
345 See paras. 2.29 and 2.30 above.
346 Montana Annotated Code, Sections 15-70-433(1) and 15-70-433(2) (Exhibit IND-37).
347 India's first written submission, para. 549 (emphasis original).
348 India's first written submission, para. 533.
349 Montana Annotated Code, Sections 15-70-433(1) and 15-70-433(2) (Exhibit IND-37).
350 See para. 2.32 above.
351 General Statutes of Connecticut, Section 16-245ff(c) (Exhibit IND-124).

for the use of "major system components manufactured or assembled in Connecticut", and another
additional incentive of up to 5% of the ordinarily available incentive may be provided "for the use of
major system components manufactured or assembled in a distressed municipality … or a targeted
investment community".352
7.122. India argues that "major system components" "manufactured or assembled in Connecticut
and those imported from outside Connecticut (including from the territory of other Members) are
'like' within the meaning of Article III:4 of the GATT". 353 According to India, "in so far as the only
basis of distinction between products made in Connecticut and outside the state of Connecticut is
their origin, the products should be held to be 'like' for the purposes of Article III:4 of the
GATT 1994".354
7.123. The United States does not contest this aspect of India's claim under Article III:4 of the
GATT 1994.
7.124. We recall that Section 16-245ff(i) of the Connecticut General Statutes provides as follows:
The Public Utilities Regulatory Authority shall provide an additi onal incentive of up to
five per cent of the then -applicable incentive provided pursuant to this section for the
use of major system components manufactured or assembled in Connecticut, and
another additional incentive of up to five per cent of the then -applicable incentive
provided pursuant to this section for the use of major system components manufactured
or assembled in a distressed municipality [within Connecticut]…355
7.125. The term "major system component" is not defined in the text of Measure 7. In response to
a question from the Panel, India argued that the term "may be understood as key/major components
of a [ PV] system".356 The United States has not contested India's defini tion. We therefore accept
that the products at issue under Measure 7 are the key or major components necessary to construct
a PV system.
7.126. The text of Section 16-245ff(i) of the Connecticut General Statutes provides that an
additional incentive of up to 5 % will be made available in respect of PV systems containing major
system components manufactured or assembled in Connecticut, whereas the same incentive will not
be made available in respect of PV systems that do not contain such major system components.
However, the text does not suggest, and the United States has not argued, that there is any
qualitative difference between major system components manufactured in Connecticut and those
manufactured outside of Connecticut.
7.127. Accordingly, we find that, as India h as argued, the Connecticut additional incentive
distinguishes between key or major components of PV systems solely on the basis of origin, i.e.
whether they are manufactured or assembled in Connecticut. In light of the above -cited guidance
from past cases, and noting the absence of any rebuttal by the United States on this point, we find
that the product s at issue under Measure 7 are like for the purposes of Article III:4 of the
GATT 1994.
7.3.2.7 Measure 8: Michigan Equipment Multiplier / Michigan Labour Multiplier
7.128. As explained above357, the Renewable Energy Standards Program in the State of Michigan
(RESPM) requires electric providers to achieve a "renewable energy credit portfolio" 358 by either
generating or purchasing electricity produced using renewable energy systems. 359 One renewable
energy credit (REC) is credited for each megawatt hour of electricity.360 However, an additional 1/10

352 General Statutes of Connecticut, Section 16-245ff(i) (Exhibit IND-124).
353 India's first written submission, para. 660.
354 India's first written submission, para. 666.
355 General Statutes of Connecticut, Section 16-245ff(i) (Exhibit IND-124).
356 India's response to Panel question No. 38.
357 See para. 2.40 above.
358 Michigan Public Act No. 342, Section 28(1) (Exhibit IND-44).
359 Michigan Public Act No. 342, Section 28(3) (Exhibit IND-44).
360 Michigan Public Act No. 342, Section 39(1) (Exhibit IND-44).

credit is awarded for every kilowatt hour produced using a renewable energy system that was either
(i) constructed using equipment made in Michigan 361 (the Michigan Equipment Mu ltiplier); or ( ii)
constructed using a workforce composed of residents of Michigan (the Michigan Labour Multiplier).362
7.129. India argues that "renewable energy systems constructed using the equipment made in
Michigan or using the workforce composed of the Michig an residents … and [renewable energy
systems] imported from outside the United States are 'like' within the meaning of Article III:4 of the
GATT 1994".363 More specifically, India submits that "the only distinguishing criteria for obtaining
the additional incentives granted through the Michigan Equipment Multiplier is whether or not the
equipment used in the 'renewable energy system' or as 'renewable energy system' as the final
product [sic] are manufactured in Michigan".364 Similarly, India argues that the "only distinguishing
criteria for obtaining the additional incentives granted through the Michigan Labour Multiplier is
whether or not the renewable energy system has been constructed using workforce composed of
the Michigan -residents [ sic]", and is therefore "based on the in -state manufacture level". 365
India concludes that "both … multipliers … make a distinction based on origin", and therefore
renewable energy systems entitled to receive the additional credits are like renewable energy
systems that are not entitled to receive the additional credits for the purposes of Article III:4 of the
GATT 1994.366
7.130. The United States does not contest this aspect of India's claim under Article III:4 of the
GATT 1994.
7.131. Section 39(2)(d) of Michigan Public Act No. 342 provides that an additional 1/10 credit is
granted for each megawatt hour of electricity generated from a renewable energy system
constructed using equipment made in Michigan. 367 Similarly, Section 39(2)(e) of the same Act
provides that an additional 1/10 credit will be awarded for each megawatt hour of electricity from a
renewable energy system constructed using a workforce composed of residents of Michigan.368 These
provisions make clear that energy produced from renewable energy systems not constructed using
Michigan-made equipment or not constructed by a workforce composed of Michigan residents does
not receive an additional 1/10 REC per megawatt hour. Notably, the text of Measure 8 does not
suggest, and the United States has not argued, that there is any qualitative difference in renewable
energy systems depending on whether they are made from Michigan -sourced equipment or
constructed by a workforce composed of Michigan residents.
7.132. Accordingly, we find that, as India has argued, the Michigan Equipment Multipl ier and the
Michigan Labour Multiplier distinguish between renewable energy systems solely on the basis of
origin. In light of the above-cited guidance from past cases, and noting the absence of any rebuttal
by the United States on this point, we find that the products at issue under Measure 8 are like for
the purposes of Article III:4 of the GATT 1994.
7.3.2.8 Measure 9: Delaware Equipment Bonus / Delaware Workforce Bonus
7.133. As noted above369, the Delaware Renewable Energy Portfolio Standards Act (REPSA) provides
retail electricity suppliers with an additional 10% credit toward meeting the renewable energy
portfolio standards for solar or wind energy installations, provided that a minimum of 50% of the
cost of renewable energy equipment, inclusive of moun ting components, are manufactured in
Delaware (the Delaware Equipment Bonus), or that the facility is constructed or installed with a
minimum of 75% in-state workforce (the Delaware Workforce Bonus).
7.134. India has identified "renewable energy equipment", including "mounting components" as the
products at issue under the Delaware Equipment Bonus. 370 India argues that "[t]he text of the

361 Michigan Public Act No. 342, Section 39(2)(d) (Exhibit IND-44).
362 Michigan Public Act No. 342, Section 39(2)(e) (Exhibit IND-44).
363 India's first written submission, para. 757.
364 India's first written submission, para. 761.
365 India's first written submission, para. 761.
366 India's first written submission, para. 761.
367 Michigan Public Act No. 342, Section 39(2)(d) (Exhibit IND-44).
368 Michigan Public Act No. 342, Section 39(2)(e) (Exhibit IND-44).
369 See para. 2.52 above.
370 India's first written submission, paras. 854 and 862.

measure in the REPSA indicates that the determinant of the challenged additional incentive is based
upon either the percentage of total cost of renewable energy equipment and mounting component
that should be manufactured in Delaware or upon the percentage of in -state workforce used in the
construction and/ or installation of the facility."371
7.135. The United States has not contested this a spect of India's claim under Article III:4 of the
GATT 1994.
7.136. We note that the relevant legal instruments support India's argument. Notably, none of the
exhibits on the record define the terms "renewable energy equipment" or "mounting components",
as used in the Delaware Equipment Bonus and the Delaware Workforce Bonus. We agree with India
that "the[se] terms can be understood to mean any solar or wind renewable energy equipment,
including its parts used for generating energy which would qualify for meeting renewable energy
portfolio standard".372
7.137. We also note that Section 356(d) of the Delaware Code provides that an additional 10%
credit is granted for solar or wind energy installations sited in Delaware provided that a minimum of
50% of the cost of renewable energy equipment, inclusive of mounting components, are
manufactured in Delaware.373 Similarly, Section 356(e) of the same Code provides that an additional
10% credit is granted for solar or wind energy installations sited in Delaware provided that the
facility is constructed or installed with a minimum of 75% workforce from Delaware. 374 These
provisions make clear that energy produced from renewable energy equipment not manufactured
using Delaware-made equipment, or facilities not constructed by a workforce composed of Delaware
residents does not receive an additional 10% credit. Notably, the text of the provi sion does not
suggest, and the United States has not argued, that there is any qualitative difference in renewable
equipment or facilities depending either on whether they are made from Delaware -sourced
equipment or whether they are constructed by a workforce composed of Delaware residents.
7.138. Accordingly, we find that, as India has argued, the Delaware Equipment Bonus and the
Delaware Workforce Bonus distinguish solely on the basis of origin with regard to renewable energy
systems and facilities. In light of the above-cited guidance from past cases, and noting the absence
of any rebuttal by the United States on this point, we find that the products at issue under Measure 9
are like for the purposes of Article III:4 of the GATT 1994.
7.3.2.9 Measure 10: Minnesota production incentives and rebates
7.139. As noted above375, we will only examine two of the three programs identified by India under
Measure 10, i.e. the Minnesota solar energy production incentive program on the installation of solar
photovoltaic (PV) modules (SEPI), and the Minnesota solar photovoltaic (PV) rebate.
7.140. As explained above376, these two programs grant financial incentives and rebates for the use
of solar PV modules made in Minnesota.
7.141. India has id entified solar PV modules as the relevant products under these two programs
under Measure 10.377 India argues that "the only basis on which the solar PV modules …
manufactured within and outside Minnesota are differentiated is the place of origin".378

371 India's first written submission, para. 855.
372 India's first written submission, para. 857.
373 Delaware Code, Title 26, Chapter 1, Subchapter III-A, Section 356(d) (Exhibit IND-54). In order to
explain how the percentage of Delaware manufactured component is calculated, India submitted the
application that must be filed to claim for additional credits.373 Among the documents to be filed, there are the
suppliers' invoices showing Delaware manufactured equipment with the facility identified. In certain cases, the
address where the materials were used/installed as well as the quantity of material used, must also be
supplied. See Application for Certification, p. 3 (Exhibit IND-127).
374 Delaware Code, Title 26, Chapter 1, Subchapter III-A, Section 356(e) (Exhibit IND-54).
375 See para. 7.85 above.
376 See para. 2.55 above.
377 India's first written submission, para. 996.
378 India's first written submission, para. 996.

7.142. The United States has not contested this aspect of India's claim under Article III:4 of the
GATT 1994.
7.143. Under the SEPI, solar PV modules must have received a 'Made in Minnesota' certificate under
Section 216C.413 of the 2016 Minnesota Statutes. 379 As noted above380, to receive this certificate,
solar PV modules must meet requirements relating to the location of the manufacturing facility in
Minnesota, among others. Thus, imported solar PV modules cannot qualify for the "Made in
Minnesota" certificate that gives access to the SEPI.
7.144. Under the Minnesota solar PV rebate, solar PV modules must be manufactured in
Minnesota.381 Section 116C.7791 of the 2016 Minnesota Statutes links the manufacturing process
to Minnesota by requiring that the manufacturer of the solar PV modules operate in this State.
Consequently, imported solar PV modules cannot qualify for the rebate under this program.
7.145. Accordingly, we find that, as India has argued, the SEPI and the Minnesota solar PV rebate
distinguish between solar PV modules solely on the basis of origin . In light of the above -cited
guidance from past cases, and noting the absence of any rebuttal by the United States on this point,
we find that the products at issue under the SEPI and the Minnesota solar PV rebate under
Measure 10 are like for the purposes of Article III:4 of the GATT 1994.
7.3.2.10 Conclusion on likeness
7.146. We find that, in the context of each of the measures at issue, the relevant imported and
domestic products are like products within the meaning of Article III:4 of the GATT 1994.
7.3.3 "Laws, regulations and requirements affecting the[] internal sale, offering for sale,
purchase, transportation, distribution, or use" of relevant products
7.147. The second element of the legal test under Article III:4 of the GATT 1994 raises two
questions: (i) whether the measures are covered by the phrase "laws, regulations and
requirements"; and, if so, (ii) whether they "affect the[] internal sale, offering for sale, purchase,
transportation, distribution or use" of the products at issue. We examine these two issues in turn.
7.3.3.1 "Laws, regulations and requirements"
7.148. India argues that each of the measures at issue falls within the scope of the phrase "laws,
regulations and requirements" in Article III:4 of the GATT 1994.382 Recalling the statement by the
panel in Japan – Film that "panels have taken a broad view of when a governmental measure is a
law, regulation or requirement" 383, India submits that this phrase should be given a
"broad interpretation".384 India adds that "for a governmental policy or action to fall within the scope
of 'laws, regulations and requirement s', it need not necessarily have a substantially binding or
compulsory nature". 385 Further, India recalls that the panel in India – Autos explained that
GATT panel reports suggest two distinct situations that would satisfy the term "requirement" in
Article III:4: (i) obligations which an enterprise is "legally bound to carry out"; and (ii) those that
an enterprise voluntarily accepts to obtain an advantage from the government.386

379 2016 Minnesota Statutes, Section 216C.411 through 216C.415 (Exhibit IND-66).
380 See para. 2.58 above.
381 2016 Minnesota Statutes, Section 216C.7791 (Exhibit IND-66).
382 India's first written submission, paras. 42-47, 163-168, 358-365, 455-460, 555-562, 668-672,
768-774, 864-872, and 1003-1010.
384 India's first written submission, paras. 44, 165, 360, 458, 557, 670, 770, 866, and 1005.
385 India's first written submission, paras. 44, 165, 360, 458, 557, 670, 770, 866, and 1005.
386 India's first written submission, paras. 45, 166, 361, 459, 558, 671, 771, 867, 1006 and 1114
(referring to Panel Report, India – Autos, para. 7.184).

7.149. The United States does not contest either India's articulation of the applicable legal standard
or its assertion that the measures at issue constitute "laws, regulations and requirements".387
7.150. Leaving aside the original versions of Measures 1 and 8 and the repealed solar thermal
rebate program under Measure 10 , on which we have decided no t to make findings 388, India has
identified the following legal instruments in respect of each of the measures at issue:
No. Name Relevant legal instruments
1 Washington State
additional incentive
- Revised Code of Washington, Renewable Energy System
Cost Recovery, RCW 82.16.110 through 82.16.130; and
- Washington Administrative Code, Renewable Energy
System Cost Recovery, WAC 458-20-273
2 California Manufacturer
Adder
- California Public Utilities Code, Sections 379.6; and
- Self Generation Incentive Program Handbooks, 2016 and
2017
4 Montana tax incentive
- Montana Annotated Code, Sections 15-70-501 to 15-70-
527
- Administrative Rules of Montana, Sections 18.15.701 –
18.15.703 and 18.15.710 – 18.15-712
5 Montana tax credit - Montana Annotated Code, Section 15-32-703
6 Montana tax refund - Montana Annotated Code, Section 15-70-433
7 Connecticut additional
incentive
- General Statutes of Connecticut, Section 16-245ff
- Request for Qualification for Eligible Contractors and Third
Party PV System Owners
8
Michigan Equipment
Multiplier / Michigan
Labour Multiplier
- Michigan Public Act, No. 342
9
Delaware Equipment
Multiplier / Delaware
Labour Multiplier
- Renewable Energy Portfolio Standards Act, 2005 as
incorporated in Delaware Code, Sections 356(d) and (e)
389; and
- Rules and Procedure to Implement the Renewable Energy
Portfolio Standard
10
Minnesota solar energy
production incentive
(SEPI)
- Minnesota Statute (2016), Sections 216C.411 through
216C.415
Minnesota solar
photovoltaic (PV)
rebate
- Minnesota Statute (2016), Section 116C.7791

7.151. We note that past cases have consistently held that the scope of the phrase "laws,
regulations and requirements" in Article III:4 of the GATT 1994 is broad.390 The panel in Japan –
Film considered that the phrase "laws, regulations and requirements" "should be interpreted as
encompassing a … broad range of government action and action by private parties that may be
assimilated to government action".391 More specifically, the panel in India – Solar Cells noted, in the
context of Article XX(d) of the GATT 1994, that "dictionary definitions make clear that 'laws' and
'regulations' refer to 'rules'".392 More recently, the panel in Brazil – Taxation confirmed that the term
"laws, regulations and requirements" "encompasses a variety of governmental measures, from
mandatory rules which apply across the board, to government action that merely creates incentives

387 There is no mention of this element of the legal standard in either of the two written submissions of
the United States or in its opening and closing statements at the first and second meetings of the Panel.
388 See paras. 7.52 and 7.76 above.
389 Subchapter III-A in Chapter 1 of Title 26 of the Delaware Code governing the renewable energy
portfolio Standards is known as the "Renewable Energy Portfolio Standards Act". See Delaware Code, Title 26,
Chapter 1, Subchapter III-A (Exhibit IND-54).
390 See e.g. Panel Report, Japan – Film, para. 10.376.
392 Panel Report, India – Solar Cells, paras. 7.307-7.308 (fns omitted). The panel in that case referred to
the Appellate Body statement in Mexico – Taxes on Soft Drinks that "the terms 'laws or regulations' refer to rules
that form part of the domestic legal system of a WTO Member". See Appellate Body Report, Mexico – Taxes on
Soft Drinks, para. 7.69.

or disincentives for otherwise voluntary action by private persons". 393 Notably, the term
"requirement" has repeatedly been found to cover not just "mandatory measures but also []
conditions that an enterprise accepts in order to receive an advantage".394
7.152. All the measures identified by India and enumerated in the above table are embodied, wholly
or at least partly, in formal legal instruments such as codes, rules, acts and statutes. These
instruments clearly qualify as "laws" or "regulations" resulting from "governmental action"395 and
setting out rules with which compliance is necessary to obtain an advantage from a government.
7.153. In respect of Measure 2, India has also identified handbooks that develop and clarify certain
rules and procedures set out in the related legislative instruments. 396 We consider that these
documents may come within the broad definition of "regulation", understood as "[a] rule or principle
governing behavior or practice; esp. such a directive established and maintained by an authority"397,
given that they essentially develop particular aspects of the California Manufacturer Adder as
established in legislative acts, codes or st atutes. In any case, we are of the view that these
instruments qualify at least as "requirements" within the meaning of Article III:4, because they set
out the conditions and procedures that need to be followed to benefit from the relevant advantages,
and they are issued by public authorities responsible for administering the se programs. In this
regard, we recall the guidance by the panel in India – Autos referenced by India 398 that
"GATT jurisprudence … suggests two distinct situations which would satisfy the term 'requirement'
in Article III:4: (i) obligations which an enterprise is 'legally bound to carry out'; [and] (ii) those
which an enterprise voluntarily accepts in order to obtain an advantage from the government".399
7.154. Thus, we find that each of the measures at issue falls within the scope of the phrase "laws,
regulations and requirements" as used in Article III:4 of the GATT 1994.
7.3.3.2 "Affecting the[] internal sale, offering for sale, purchase, transportation,
distribution or use" of relevant products
7.155. India submits that each of the measures at issue affects the sale, purchase, transportation,
distribution or use of the imported like products because they "adversely modify the conditions of
competition" between domestic and imported products by providing "incentives" or
"higher incentives" based on domestic input.400
7.156. The United States submits that India has not met its burden of proof to show that each of
the measures at issue "affect[s] the[] internal sal e, offering for sale, purchase, transportation,
distribution or use" of the relevant products. According to the United States, India, having alleged
that the measures have "incentivizing" effects, was required, but failed, to demonstrate that the
measures at issue incentivize the use of domestic over imported products.401
7.157. We recall the Appellate Body's statement that the word "affecting" has a broad scope of
application, "wider in scope than such terms as 'regulating' or 'governing'". 402 According to the

393 Panel Reports, Brazil – Taxation, para. 7.65 (referring to Panel Report, China – Publications and
Audiovisual Products, para. 7.1512).
394 Panel Report, Canada – Autos, para. 10.73. See also Panel Report, India – Autos, paras. 7.188-
7.193.
396 2016 SGIP Handbook (Exhibit IND-16) and 2017 SGIP Handbook (Exhibit IND-15) in the context of
Measure 2; and Connecticut Green Bank, Request for Qualification and Program Guidelines, Residential Solar
Investment Program (Exhibit IND-42) in respect of Measure 7.
397 Oxford English Dictionary, definition of "regulation"
http://www.oed.com/view/Entry/161427?redirectedFrom=regulation#eid (accessed 12 February 2019).
398 India's first written submission, paras. 45, 166, 361, 459, 558, 671, 771, 867, 1006 and 1114
(referring to Panel Report, India – Autos, para. 7.184).
399 Panel Report, India – Autos, para. 7.184. See also ibid., paras. 7.185-7.186.
400 India's first written submission, paras. 50, 171, 273, 365, 463, 562, 675, 777, 871, 1010 and 1118.
401 United States' first written submission, paras. 79 and 84.
402 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 209, quoting Appellate Body Report, EC –
Bananas III, para. 220. With respect to the broad scope of application of Article III:4, the Appellate Body has
recently clarified in a report issued on 13 December 2018 that "while Article III:8(a) precludes the application of
the national treatment obligation in Ar ticle III to government procurement activities falling within its scope,
Article III:8(b) provides a justification for measures that would otherwise be inconsistent with the national

Appellate Body, "[t]he ordinary meaning of the word 'affecting' implies a measure that has 'an effect
on', which indicates a broad scope of application". 403 Past panels have clarified that "the word
'affecting' in Article III:4 of the GATT … cover[s] not only laws and regulations which directly govern
the conditions of sale or purchase but also any laws or regulations which might adversely modify the
conditions of competition between domestic and imported products"404, as well as "measures which
create incentives or disincentives with respect to the sale, offering for sale, purchase, and use of an
imported product".405
7.158. In this connection, we recall that in Canada – Autos, the panel concluded that where a
challenged measure confers an advantage on the use of a domestic product but not on the use of a
like imported product, it can clearly be characterized as affecting the internal sale or use of those
products, because it necessarily has an impact on the conditions of competition:
[A] measure which provides that an advant age can be obtained by using domestic
products but not by using imported products has an impact on the conditions of
competition between domestic and imported products and thus affects the "internal
sale, … or use" of imported products.406
7.159. The same panel emphasized that a measure may affect the sale, purchase, transportation,
distribution or use of products independently of its impact "under current circumstances"407:
The idea that a measure which distinguishes between imported and domestic products
can be considered to affect the internal sale or use of imported products only if such a
measure is shown to have an impact under current circumstances on decisions of private
firms with respect to the sourcing of products is difficult to reconcile with the concept
of the "no less favourable treatment" obligation in Article III:4 as an obligation
addressed to governments to ensure effective equality of competitive opportunities
between domestic and imported products, and with the principle that a showing of trade
effects is not necessary to establish a violation of this obligation.408
7.160. The panel in Canada – Autos thus rejected the respondent's argument that the measure at
issue did not affect the sale, purchase, transportation, distribution or use of the relevant products
because the domestic content requirements it established were very "low".409 To the contrary,
the panel found it sufficient to observe that the measure had "an effect on the competi tive
relationship between imported and domestic products by conferring an advantage upon the use of
domestic products while denying that advantage if imported products are used". 410 On this basis,
the panel held that the case before it "clearly involve[d] formally different treatment of imported
and domestic products albeit that the actual trade effects of this different treatment may be minimal
under current circumstances"411, and concluded that there was no "need to examine how important
the [measure at issue was] under present circumstances as a factor influencing the decisions of"
motor vehicle manufacturers whether to use domestic or imported parts in order to conclude that
the measures affected the sale, purchase, transportation, distribution or use of the relevant
products.412
7.161. In light of the above, we consider that, in assessing whether a challenged measure affects
the sale, purchase, transportation, distribution or use of goods in a market, a panel should examine

treatment obligation in Article III". In the present dispute, the United States has not submitted arguments with
respect to Article III:8 of the GATT 1994 nor raised any defence under the general exceptions of Article XX of
the GATT 1994. See Appellate Body Reports, Brazil – Taxation, para. 5.84.
403 Appellate Body Report, EC – Bananas III, para. 220.
404 Panel Reports, Canada – Autos, para. 10.80 and China – Auto Parts, para. 7.251. This line of
reasoning dates back to the GATT era: see GATT Panel Report, Italy – Agricultural Machinery, para. 12.
405 Panel Report, China – Publications and Audiovisual Products, para. 7.1450 (referring to Panel
Reports, EC – Bananas III, para. 7.175; India – Autos, paras. 7.196-7.197; and Canada – Wheat Exports and
Grain Imports, para. 6.267).

whether such measure has an impact on the conditions of competition between domestic and
imported like products, but need not examine whether or the extent to which the measure has,
under current circumstances, influenced purchasing decisions on the market. Moreover, we consider
that positive evidence that a measure may have had only minimal impact on the purchasing decisions
of private firms will not be sufficient to rebut a prima facie showing that a measure affects the
competitive relationship between imported and domestic products because, for example, it confers
an advantage upon the use of domestic products while denying that advantage if imported products
are used.
7.162. Bearing these observations in mind, we now turn to examine whether each of the measures
at issue affects the sale, purchase, transportation, distribution or use of relevant products.
7.3.3.2.1 Measure 1: Washington State additional incentive
7.163. India argues that the Washington State additional incentive under the Washington
Renewable Energy Cost Recovery Incentive Payment Program (RECIP) "provide[s] higher incentives
(i.e. an advantage) based on domestically procured specified components". 413 On this basis, India
concludes that the measure at issue "adversely modif[ies] the conditions of competition between
domestic and imported 'like products' and therefore 'affect[s]'" those products.414
7.164. The United States responds that "India has provided no evidence that substantiates its
assertion that 'the measures at issue' create a demand for equipment [manufactured in Washington
State] and insulate them from c ompeting 'like products' outside of Washington". 415 In the
United States' view, India also has not demonstrated that the Washington State additional incentive
modifies the conditions of competition "in Washington's market for renewable energy products 'to
the determinant [sic] of imported products.'" 416 In particular, the United States argues that the
figures relied upon by India that show a growth in the number of solar photovoltaic (PV) systems
installed in Washington State between 2005 – when RECIP began – and 2015417 do not support its
assertion that the Washington State additional incentive has induced the wide -scale adoption of
Washington-made renewable energy products in Washington State. The United States argues that
the figure submitted by India does not indicate the percentage of installed systems – if any –
containing components manufacture d in Washington State.418 Absent this information, the
United States considers that India has failed to demonstrate that the Washington State additional
incentive "ha[s] incentivized or 'affected' the 'use' of Washington -made solar PV systems or
components in particular".419 The United States adds that, out of the approximately USD 17 million
in cost recovery incentive payments through 2015 funded by Washington State according to India,
nothing indicates the proportion thereof associated with the use of Washing ton-made renewable
energy equipment or components. 420 Finally, according to the United States, "[b]ecause
incentivization is the vector by which India claims"421 that the Washington State additional incentive
affects the use of products, India "has necessarily failed to establish that the measure[] 'affect'[s]
the 'use' of products with the meaning of" Article III:4.422
7.165. As explained above423, the Washington State additional incentive is provided for customer -
generated electricity produced using solar inverters, sol ar modules, stirling converters, or wind
blades manufactured in Washington State. The measure does not prohibit the use of non-local,
including imported solar inverters, solar modules, stirling converters, and wind blades. However, in
such cases, no additional incentives based on the highest economic development factors on top of
the base incentive rates are available.
7.166. In our view, India's demonstration that the Washington State additional incentive accords
an advantage on the use of local products (i.e. solar inverters, solar modules, stirling converters, or

413 India's first written submission, para. 50.
414 India's first written submission, para. 50.
415 United States' first written submission, para. 85 (emphasis original).
416 United States' first written submission, para. 85.
417 India's first written submission, para. 24, Figure 2.
418 United States' first written submission, para. 87.
419 United States' first written submission, para. 87.
420 United States' first written submission, para. 87.
421 United States' first written submission, para. 88 (emphasis original).
422 United States' first written submission, para. 88.
423 See para. 2.8 above.

wind blades manufactured in Washington State) that is not available for the use of relevant like non-
local products, including imported products, is sufficient to make a prima facie case that the
Washington State additional incentive affects the sale, purchase, transportation, distribution or use
of the relevant products.
7.167. With respect to the United States' argument that the figures provided by India do not support
its assertion, we agree with the United States that nothing in the relevant graph shows that the
exponential growth of solar PV systems in Washington State between 2005 and 2015 is due, or
somehow related, to the provision of the Washington State additional incentive. As pointed out by
the United States, the graph in question does not contain information on the percentage of systems
containing components manufactured in Washington State, or the type or percentage of components
made in Washington State.
7.168. Further, the fact that, as of 23 September 2015, USD 17,023,303 from the Washington State
budget had been spent on investment cost recovery incentive payments f or electricity generated
through certified renewable systems does not shed any light on the relationship, if any, between
this amount and the Washington State additional incentive. There is no information on the record
explaining what percentage of these i ncentive payments corresponds to customer -generated
electricity produced using solar inverters, solar modules, stirling converters, or wind blades
manufactured in of Washington State. Therefore, we are unpersuaded by India's assertions in this
respect.
7.169. Nevertheless, we do not consider that these factual arguments by the United States are
capable of rebutting India's prima facie showing that the measure affects the sale, purchase,
transportation, distribution or use of the relevant products. This is because, as explained above, the
relevant question at this point of our analysis is whether the measure has an impact on the conditions
of competition between domestic and imported like products, not whether or the extent to which it
has or is actually influencing the purchasing decisions of private firms "under current circumstances".
In our view, the Washington State additional incentive "involves formally different treatment of
imported and domestic products albeit that the actual trade effects of this different treatment may
be minimal under current circumstances". 424 Thus, in assessing whether the measure affects the
sale, purchase, transportation, distribution or use of the relevant products, the question whether
any person or enterprise has actually decided to take up that advantage is, in our view, beside the
point.
7.170. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the Washington State additional incentive "affect[s] the internal sale, offering for sale, purchase,
transportation, distribution or use" of products within the meaning of Article III:4 of the GATT 1994.
7.3.3.2.2 Measure 2: California Manufacturer Adder
7.171. India argues that the California Manufacturer Adder under the California Self-Generation
Incentive Program (SGIP) "provide[s] incentives (i.e., an advantage) based on whether the eligible
equipment satisfy the requirements of the [program] i.e. whether they are manufactured in
California or meet the in-state manufacturing level".425 On this basis, India concludes that Measure 2
"adversely modif[ies] the conditions of competition between the domestic and imported 'like
products' and therefore 'affect[s]'" those products.426
7.172. The United States responds that "India has provided no evidence that substantiates its
assertion that the SGIP Adder operates to 'induce[]' buyers to 'purchase specified products of
California-origin.'"427 Moreover, according to the United States, India has also failed to demonstrate
that the California Manufacturer Adder modifies the condition s of competition "in the market for
renewable energy equipment in California 'to the determinant [sic] of imported products' ."428
The United States points out that India has not indicated the number of individuals who have been

425 India's first written submission, para. 171.
426 India's first written submission, para. 171.
427 United States' first written submission, para. 90 (referring to India's first written submission,
para. 176) (emphasis original).
428 United States' first written submission, para. 90.

granted incentives under this program.429 In the United States' view, "[b]ecause incentivization is
the vector by which India claims" 430 that the California Manufacturer Adder affects the use of
products, India "has necessarily failed to establish that the SGIP Adder 'affect[s]' the 'use' of
products with the meaning of" Article III:4.431
7.173. As explained above 432, the California Manufacturer Adder consists of an additional 20%
incentive payment for the installation of eligible distributed generation resources "from a California
Supplier" (under the 2016 SGIP Handbook) or generation and energy storage equipment
"manufactured in California" (under the 2017 SGIP Handbook). We further noted that imported
products cannot receive this additional incentive because they are not sourced from a California
Supplier or manufactured in California. Although Measure 2 does not prohibit the installation of
imported eligible distributed generation resources, in such cases, the additional 20% incentive
payment provided under the California Manufacturer Adder is not available.
7.174. In our view, India's demonstration that the California Ma nufacturer Adder accords an
advantage on the use of local products (i.e. eligible distributed generation resources under the 2016
SGIP Handbook, and generation and energy storage equipment under the 2017 SGIP Handbook )
that is not available for the use of non-local products, including imported products is sufficient to
make a prima facie case that the California Manufacturer Adder affects the sale, purchase,
transportation, distribution or use of the relevant products.
7.175. We do not agree with the United States' argument that India should have demonstrated that
the California Manufacturer Adder has had the effect of "inducing" buyers to "purchase" the eligible
products of California-origin. As mentioned above433, we are of the view that India is not required to
show that the measure at issue in fact has or had an impact on the relevant buyers, as suggested
by the United States. Neither is India required under Article III:4 of the GATT 1994 to indicate the
number of those who have been granted incentives under this program. As explained above, the
relevant question at this point of our analysis is whether the measure has an impact on the conditions
of competition between domestic and imported like products, not whe ther or the extent to which it
has or is actually influencing the purchasing decisions of private firms "under current circumstances".
We consider that for India to make a prima facie case it suffices to show that the California
Manufacturer Adder confers an advantage on the use of local products that it does not confer on the
use of imported products.
7.176. For these reasons, we conclude that India has made a prima facie case, and the
United States has not rebutted, that the California Manufacturer Adder "affect [s] the internal sale,
offering for sale, purchase, transportation, distribution or use" of products within the meaning of
Article III:4 of the GATT 1994.
7.3.3.2.3 Measure 4: Montana tax incentive
7.177. According to India, the Montana tax incentive "provide[s] tax incentives (i.e. an advantage)
based on the in -state manufacture level of ethanol, i.e. the higher the content of Montana
agricultural products in the ethanol so produced, the higher is the tax incentive". 434 On this basis,
India concludes that the measure at iss ue "adversely modif[ies] the conditions of competition
between the domestic and imported 'like products' and therefore 'affect[s]'" those products.435
7.178. The United States responds that "Montana Department of Transportation records indicate
that no entity has availed [itself] of [the measure] since 1995". 436 According to the United States,
this "contradicts India's assertion that [the measure] ha[s] incentivized the use of products of
Montana-origin". Further, in the United States' view, because incentivization "is the vector by which

429 United States' first written submission, para. 90.
430 United States' first written submission, para. 92 (emphasis original).
431 United States' first written submission, para. 92.
432 See para. 2.14 above.
433 See para. 7.169 above.
434 India's first written submission, para. 365.
435 India's first written submission, para. 365.
436 United States' first written submission, paras. 15 and 99 (emphasis original).

India claims" that the measure at issue affects products, India has "necessarily failed to establish
that [the measure] has 'affect[ed]' the 'use' of products within the meaning of" Article III:4.437
7.179. As explained above438, the Montana tax incentive for ethanol production makes available tax
incentives for ethanol production from Montana-origin ingredients. Although Measure 4 does not
prohibit ethanol production from ingredients sourced outside Montana, such ethanol is not eligible
to receive the tax incentive.439
7.180. In our view, India's demonstration that the Montana tax incentive confers an advantage on
the use of domestic products (i.e. Montana -origin ingredients) that is not available for the use of
imported products, is suf ficient to make a prima facie case that the Montana tax incentive affects
the sale, purchase, transportation, distribution or use of the relevant products.
7.181. We are cognizant that ethanol made from non-Montana ingredients may be eligible to receive
the tax incentive if Montana ingredients are "not available". 440 We do not, however, consider that
this exception undermines or contradicts India's submission that, by conferring a benefit on the use
of local products – where such are available in the market – that is not available for the use of
imported products, the measure at issue has an impact on the conditions of competition and
therefore affects the sale, purchase, transportation, distribution or use of the products within the
meaning of Article III:4. We not e, moreover, that the United States has not suggested that this
exception would in itself have any bearing on the question whether the measure affects the sale,
purchase, transportation, distribution or use of the relevant products.
7.182. Turning to the United States' argument that Montana Department of Transportation records
show that no entity has claimed an incentive under the measure at issue since 1995, we note that
India has not contested this assertion. Moreover, the Montana Department of Transportation Records
file submitted by the United States in support of its position does appear to show payments only
between 1992 and 1995, although it is not entirely clear to us whether the information reflected in
this exhibit is comprehensive.441
7.183. However, even if the United States' argument were factually correct, we do not consider that
it would be capable of rebutting India's prima facie showing that the measure affects the sale,
purchase, transportation, distribution or use of the relevant products. This is because, as explained
above, the relevant question at this point of our analysis is whether the measure has an impact on
the conditions of competition between domestic and imported like products, not whether or the
extent to which it has or is actually influencing the purchasing decisions of private firms "under
current circumstances". In our view, the Montana tax incentive "involves formally different treatment
of imported and domestic products albeit that the actual trade effects of this different treatment
may be minimal under current circumstances". 442 Thus, in assessing whether the measure affects
the sale, purchase, transportation, distribution or use of the relevant products, the question whether
any person or enterprise has actually decided to take up that advantage is, in our view, beside the
point.
7.184. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the Montana tax incentive "affect[s] the internal sale, offering for sale, purchase, transportation,
distribution or use" of products'' within the meaning of Article III:4 of the GATT 1994.

437 United States' first written submission, para. 99.
438 See para. 2.20 above.
439 Montana Annotated Code, Section 15-70-522 (Exhibit IND-34).
440 Montana Annotated Code, Section 15-70-522 (Exhibit IND-34).
441 Montana Department of Transportation Records file (Exhibit US-10). Our uncertainty is caused by the
heading of the document, which refers to "Payments to Alcotech, Ringling, MT". It is not clear whether the
document relates only to these recipients, and if so whether there were or may be other recipients that
received payments after 1995.

7.3.3.2.4 Measure 5: Montana tax credit
7.185. India a rgues that the Montana tax credit for biodiesel blending storage provides an
advantage "based on the use of Montana -origin feedstock for manufacturing biodiesel". 443
More specifically, India submits that the Montana tax credit reduces the investment costs of eligible
taxpayers, and therefore "alters the conditions of competition in favour of Montana-origin feedstock
as well as biodiesel produced from Montana-origin feedstock".444 India concludes that the measure
therefore "adversely modif[ies] the condition[s] of competition between the domestic and imported
'like products' and therefore 'affect' the internal sale, offering for sale, purchase and/or use of the
imported 'like products'".445
7.186. The United States responds that "Montana Department of Transportation Recor ds indicate
that no taxpayer has sought to claim the Biodiesel Tax Credit since 2011". 446 According to the
United States, this "contradicts India's assertion that [the measure] ha[s] incentivized the use of
products of Montana-origin".447 Further, in the United States' view, because incentivization "is the
vector by which India claims" that the measure at issue affects products, India has "necessarily
failed to establish that [the measure] has 'affect[ed]' the 'use' of products within the meaning of"
Article III:4.448
7.187. As explained above449, the Montana tax credit makes available a "credit against [certain]
taxes … for the costs of investments in depreciable property used for storing or blending biodiesel
with petroleum diesel for sale". 450 Such credits are, however, only available if the investment in
respect of which the credit is claimed is "used primarily to blend petroleum diesel with biodiesel
made entirely from Montana-produced feedstocks".451 Tax-payers who blend petroleum diesel with
biodiesel made entirely from Montana-produced feedstocks are entitled to the credit, whereas tax -
payers who blend petroleum diesel with biodiesel made wholly or partly from feedstocks originating
outside Montana are not eligible.
7.188. In our view, India's demonstration that the Montana tax credit confers an advantage on the
sale, purchase, transportation, distribution or use of domestic products (i.e. Montana -origin
feedstock and biodiesel made therefrom) that is not available for use of imported products is
sufficient to make a prima facie case that the measure affects the sale, purchase, transportation,
distribution or use of the relevant products.
7.189. We note that India has not contested the United States' arguments that Montana
Department of Transportation Records indicate that no taxpayer has claimed the Montana tax credit
since 2011. Moreover, the memorandum from the Montana Department of Revenue dated 16 April
2018, which the United States submitted in support of its position, does appear to show that no
credits were paid between 2012 and 2016.452 No data has been provided for 2017 and 2018.
7.190. However, even if the United States' argument was correct, we do not consider that it would
be capable of rebutting India's prima facie showing that the measure affects the sale, purchase,
transportation, distribution or use of the relevant products. This is because, as explained above, the
relevant question at this point of our analysis is whether the measure has an impact on the conditions
of competition between domestic and imported like products, not whether or the extent to which it
has or is actually influencing the purchasing decisions of private firms "under current circumstances".
In our view, the Montana tax credit, "involves formally different treatment of imported and domestic
products albeit that the actual trade effects of this different treatment may be minimal under current
circumstances".453 Thus, in assessing whether the measure affects the sale, purchase,

443 India's first written submission, para. 463.
444 India's first written submission, para. 463.
445 India's first written submission, para. 463.
446 United States' first written submission, paras. 18 and 101 (emphasis original).
447 United States' first written submission, para. 101.
448 United States' first written submission, para. 101.
449 See para. 2.24 above.
450 Montana Annotated Code, Section 15-32-703(1) (Exhibit US-11).
451 Montana Annotated Code, Section 15-32-703(4)(a) (Exhibit US-11).
452 We note that the document does not provide data for 2017 and 2018, and thus we do not know
whether payments were made in those years.

transportation, distribution or use of the rele vant products, the question whether any person or
enterprise has actually decided to take up that advantage is, in our view, beside the point.
7.191. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the Montana tax credit "affect[s] the internal sale, offering for sale, purchase, transportation,
distribution or use" of products'' within the meaning of Article III:4 of the GATT 1994.
7.3.3.2.5 Measure 6: Montana tax refund
7.192. India submits that the Montana tax refund "provide[s] tax refund[] incentives (i.e. an
advantage) based on the condition that biodiesel must be produced from ingredients originating in
Montana". According to India, Measure 6 thus "adversely modif[ies] the conditions of competition
between the domestic and imported 'like products' and therefore 'affects' the internal sale, offering
for sale, purchase and/or use of the imported 'like products'".454
7.193. The United States responds that "Montana Department of Transportation records indicate
that no taxpayer has ever applied for (much less received) the Biodiesel Refund". 455 According to
the United States, this "rebuts India's assertion that that the Biodiesel Refund has created a
preference (i.e. 'incentivized') for biodiesel manufactured from Montana products". 456 In the
United States' view, because incentivization "is the vector by which India claims" that Measure 6
affects products, India has "necessarily failed to establish that [the measure] has 'affect[ed]' the
'use' of products within the meaning of" Article III:4.457
7.194. As explained above 458, the Montana tax refund provides that "licensed distributors" are
entitled to a refund of two cents per gallon on biodiesel "produced entirely from biodiesel ingredients
produced in Montana".459 Additionally, the Montana tax refund provides for owners and operators of
retail motor fuel outlets to receive a tax refund equal to one cent "on biodiesel on which the special
fuel tax has been paid and that is purchased from a licensed distributor if the biodiesel is produced
entirely from biodiesel ingredients produced in Montana".460
7.195. In our view, India's demonstration that the Montana tax refund makes an advantage
available for the use of local products (i.e. ingredients of biodiesel and biodiesel made with such
ingredients), whereas the same advantage is not available when imported or other non -local
products are used, is sufficient to make a prima facie case that the Montana tax refund affects the
sale, purchase, transportation, distribution or use of the relevant products.
7.196. We note that India has not contested the United States' argument that Montana Department
of Transportation Records indicate that no taxpayer has ever claim ed the tax refund for biodiesel.
Moreover, we note that the Montana Department of Transportat ion's Report on Dyed Fuel
Enforcement, dated 2016, which the United States submitted in support of its position, does indeed
state that "[t]he department has never had any person apply for" the tax refund for biodiesel. 461
This indicates that, at least until 2016 (the year in which the report was produced), no person had
taken advantage of the incentives made available by Measure 6.
7.197. Importantly, however, even if the United States' argument were factually correct, we do not
consider that it would be capable of rebutting India's prima facie case that the measure affects the
sale, purchase, transportation, distribution or use of the relevant products. This is because, as
explained above, the relevant question at this point of our analysis is whether the measure has an
impact on the conditions of competition between domestic and imported like products, not whether
or the extent to which it has or is actually influencing the purchasing decisions of private firms "under
current circumstances". In our view, the Montana tax refund "involves formally different treatment

454 India's first written submission, para. 562.
455 United States' first written submission, paras. 20 and 103 (emphasis original).
456 United States' first written submission, para. 103 (fn omitted).
457 United States' first written submission, para. 103.
458 See paras. 2.29 and 2.30 above.
459 Montana Annotated Code, Section 15-70-433(1) (Exhibit IND-37).
460 Montana Annotated Code, Section 15-70-433(2) (Exhibit IND-37).
461 Montana Department of Transportation, Report on Dyed Fuel Enforcement Submitted to the Revenue
and Transportation Interim Committee (2016), p. 4 (Exhibit US-13).

of imported and domestic products albeit that the actual trade effects of this different treatment
may be minimal under current circumstances". 462 Thus, in assessing whether the measure affects
the sale, purchase, transportation, distribution or use of the relevant products, the question whether
any person or enterprise has actually decided to take up that advantage is, in our view, beside the
point.
7.198. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the Montana tax refund "affect[s] the internal sale, offering for sale, purchase, transportation,
distribution or use" of products'' within the meaning of Article III:4 of the GATT 1994.
7.3.3.2.6 Measure 7: Connecticut additional incentive
7.199. India submits that Measure 7, which is part of the broader Connecticut Residential Solar
Investment Program (CRSIP), "provide[s] additional incentives (i.e. an advantage) if the major
system components of a solar photovoltaic (PV) system are manufactured or assembled in
[Connecticut]". According to India, it follo ws that Measure 7 "clearly adversely modif[ies] the
conditions of competition … between domestic and imported like products and therefore 'affect[s]'
the internal sale, offering for sale, purchase, and/or use of the imported like products".463
7.200. The United States responds that "India has provided no evidence to substantiate its
suggestion that the [measure at issue] has played a 'decisive' role in inducing consumers to
'purchase' or 'use' renewable energy components manufactured in Connecticut".464 According to the
United States, the evidence submitted by India to establish that payments have been made under
Measure 7 do "not support India's assertions"465 for two reasons.
7.201. First, according to the United States, the figures cited by India do not make clear what
proportion of the PV systems that received incentives were manufactured in or contained
components manufactured in Connecticut. 466 In this connection , the United States argues that
India's figures relate to funds disbursed by the Green Bank, whereas in fact "th e Green Bank does
not have legal authority to [grant the challenged additional incentives] under [the] applicable
Connecticut Statute".467 Thus, in the United States' view, none of the grants recorded in the evidence
submitted by India could have been "linke d to the purchase or use of Connecticut -manufactured
solar PV systems or components".468
7.202. Additionally, the United States argues that although Measure 7 gives the Connecticut Public
Utilities Regulatory Authority (PURA) the authority to grant an additional incentive of up to 5 % for
solar PV systems or components manufactured in Connecticut, it does not require PURA to do so.469
The United States notes that the relevant provision of the measure at issue states that PURA "shall
provide an additional incentive of up to five per cent of the then-applicable incentive"470, and submits
that the phrase "up to" indicates that PURA "has the discretion to grant zero additional incentive".471
In the United States' view, "if a challenged measure provides discretion to administering authorities
to act in a WTO-consistent manner, then the legislation cannot, 'as such', violate the Member's WTO
obligations".472 According to the United States, however, India has not shown that the measure
mandates the disbursement of additional incentives.473 In particular, the United States submits that
India has not adduced any evidence demonstrating that "PURA has issued rules, regulations, or
guidelines … much less ever made the incentive available to Connecticut homeowners pursuant to
its discretionary authority". 474 Accordingly, in the United States' view, "India has failed to

463 India's first written submission, para. 675.
464 United States' first written submission, para. 105.
465 United States' first written submission, para. 105.
466 United States' first written submission, para. 106.
467 United States' first written submission, para. 107.
468 United States' first written submission, para. 108.
469 United States' first written submission, para. 110.
470 United States' first written submission, para. 110 (emphasis original).
471 United States' first written submission, para. 110.
472 United States' response to Panel question No. 112, para. 3.
473 United States' response to Panel question No. 112, para. 3.
474 United States' first written submission, para. 111 (emphasis original).

demonstrate that the [measure at issue] is (or has ever been) legally capable of 'affecting' the
'purchase' or 'use' of products within the meaning of Article III:4" of the GATT 1994.475
7.203. As explained above 476, the CRSIP makes available two kinds of financial incentive s:
performance-based incentives (PBI), which are available to homeowners who acquire a solar PV
system under a third -party financing structure (i.e. by way o f a lease or a power purchase
agreement), and expected performance -based buydowns (EPBB), which are available to
homeowners who purchase a solar PV system from an Eligible Contractor.477 As a general matter,
these incentives are paid at rates determined and published by the Connecticut Green Bank.478 Under
the CRSIP, PURA may make available additional incentives of up to 5% of the ordinarily available
incentive479 for the use of "major system components manufactured or assembled in Connecticut",
and another additional incentive of up to 5% of the ordinarily available incentive may be made
available "for the use of major system components manufactured or assembled i n a distressed
municipality … or a targeted investment community". 480 Thus, Measure 7 provides additional
incentives where PV systems contain "major system components" manufactured or assembled
locally.
7.204. In our view, India's demonstration that the Connecticut additional incentive provides an
advantage for the use of local products but not for the use of imported or other non -local products
is sufficient to make a prima facie case that the measure affects the sale, purchase, transportation,
distribution or use of the relevant products.
7.205. As noted, the United States has attempted to rebut India's case with two arguments. First,
the United States argues that the measure allows but does not mandate the provision of any
additional incentives. This is so because, accor ding to the United States, the relevant provision of
the CRSIP provides that PURA shall provide additional incentives of "up to" 5%, and the use of the
term "up to" implies that PURA may decide to pay an additional incentive of 0%. Second, the
United States argues that the data submitted by India does not show that any additional incentive
payments have in fact been made.
7.206. We agree with the United States that, if the measure at issue simply granted PURA
discretionary authority to make additional incentives available for the use of local content, this may
raise a question about whether the text of the measure would, without more, be sufficient to
establish that the measure affects the sale, purchase, transportation, distribution or use of products
within the meaning of Article III:4. In our view, however, we are not confronted with such a situation
in the present case.
7.207. To recall, Section 16-245ff(i) of the General Statutes of Connecticut provides that PURA
"shall provide an additional incentive of up to five per cent of the then-applicable incentive …".481 As
noted, the United States submits that the use of the phrase "up to" indicates that PURA could set
the additional incentive rate at 0%. We find this argument difficult to accept. The term "up to" means
"as high or as far as".482 It does not relate to the base or starting point from which a thing (such as
the rate of a payment) begins to ascend "up to" a certain higher point. Thus, as we understand it,
the use of the term "up to" in Section 16-245ff(i) simply mea ns that PURA may set additional
incentives as high as 5%, but no higher. It does not shed light on whether PURA could set the
incentive rate at 0%, or whether PURA is required or only permitted to disburse the additional
incentive.
7.208. Moreover, we find the United States' position difficult to reconcile with the statute's use of
the term "shall". As past panels have noted, the term "shall" "denotes a requirement that is

475 United States' first written submission, para. 111 (emphasis original).
476 See paras. 2.32 - 2.35 above.
477 General Statutes of Connecticut, Section 16-245ff(c) (Exhibit IND-124).
478 General Statutes of Connecticut, Section 16-245ff(f) (Exhibit IND-124).
479 General Statutes of Connecticut, Section 16-245ff(i) (Exhibit IND-124).
480 General Statutes of Connecticut, Section 16-245ff(i) (Exhibit IND-124).
481 General Statutes of Connecticut, Section 16-245ff(i) (Exhibit IND-124) (emphasis added).
482 Oxford Dictionaries Online, definition of "up to"
http://www.oed.com/view/Entry/219798?rskey=volPsV&result=1&isAdvanced=false#eid16164799 (accessed
10 April 2019).

obligatory in nature and that goes beyond mere encouragement". 483 This is consistent with the
ordinary meaning of the term as reflected in the Oxford English Dictionary, which defines the word
"shall" as relating, inter alia, to a "command".484 We consider that Section 16-245ff(i) commands,
requires, or obligates PURA to make additional incentives available. In this sense, it does not simply
allow or enable PURA to disburse additional incentives, but requires it to make such additional
incentives available. Moreover, in our view, such a command would not be fulfilled if PURA we re to
set the additional incentive at 0%. To set the rate at 0% would, in effect, be not to grant an additional
incentive at all, and thus not to conform to the obligation imposed by the plain language of
Section 16-245ff(i).
7.209. Accordingly, we do not consid er that the ordinary meaning of the text supports the
United States' view that, under the CRSIP, PURA may set an additional incentive of 0%, and that
India has therefore failed to establish that the measure is legally capable of affecting the purchase
or use of products within the meaning of Article III:4. To the contrary, as we read it, the text of
Section 16-245ff(i) requires PURA to set a level of additional incentives no higher than 5% of the
applicable base rate, but more than 0%. This is so because a rate of 0% would mean that, in effect,
no incentive is made available. Setting a rate of 0% would therefore be contrary to the plain words
of the relevant provision. Because the provision requires a level of additional incentives to be set,
we do not consi der that the so -called mandatory/discretionary principle raised by the
United States485 is implicated in our analysis of Measure 7.
7.210. This brings us to the United States' second argument, namely, that the data submitted by
India does not show that additional incentive payments have been made. We note, however, that
India did not adduce these data in the specific context of its claim that Measure 7 affects the sale,
purchase, transportation, distribution or use of the relevant products within the meaning of
Article III:4, but rather in its more general description of this measure. Accordingly, we do not
consider that India intended to rely on this evidence as an essential e lement of its argument that
Measure 7 affects the sale, purchase, transportation, distribution or use of the relevant products .
Nor do we think that India needed to do so. As we have explained, the relevant question at this
point of our analysis is whether the measure has an impact on the conditions of competition, not
whether or the extent to which it has or is actually influencing the purchasing decisions of private
firms "under current circumstances".
7.211. Accordingly, even if the United States' argument were correct and it were accepted that the
evidence submitted by India does not show that additional incentives have been paid, this would, in
our view, be insufficient to rebut India's prima facie case based on the text of Measure 7. This is
because, as explained above, the relevant question at this point of our analysis is whether the
measure has an impact on the conditions of competition between domestic and imported like
products, not whether or the extent to which it has or is actually influencing the purchasing decisions
of private firms "under current circumstances". In our view, the Connecticut additional incentive
"involves formally different treatment of imported and domestic products albeit that the actual trade
effects of t his different treatment may be minimal under current circumstances". 486 Thus, in
assessing whether Measure 7 affects the sale, purchase, transportation, distribution or use of the
relevant products, the question whether any person or enterprise has actually decided to take up
that advantage is, in our view, beside the point.
7.212. This logic also leads us to conclude that we need not determine, for the purposes of resolving
this claim, whether the Green Bank is authorized to make additional incentive payments, as I ndia
argues. What matters for the purposes of the present claim is the existence of a measure that
accords, on its face, formally different treatment to imported and domestic products 487, and thus
impacts the conditions of competition, and not whether that m easure has or is actually having
market effects, including by influencing the purchasing decisions of private firms. In our view,
therefore, d etails concerning the internal administration of the additional incentive, such as the

484 Oxford Dictionaries Online, definition of "shall"
http://www.oed.com/view/Entry/177349?rskey=khh0Pw&result=1&isAdvanced=false#eid (accessed
10 April 2019).
485 United States' response to Panel question No. 112, para. 3.

precise identity of the ent ity authorized to pay it, are not determinative of whether the measure
affects the sale, purchase, transportation, distribution or use of the relevant products.
7.213. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the Connecticut additional incentive "affect[s] the internal sale, offering for sale, purchase,
transportation, distribution or use" of products within the meaning of Article III:4 of the GATT 1994.
7.3.3.2.7 Measure 8: Michigan Equipment Multiplier / Michigan Labour Multiplier
7.214. India submits that the Renewable Energy Standards Program in the State of Michigan
(RESPM) "provide[s] higher incentives (i.e. an advantage) based on the in -state manufacture level
of the renewable energy system". According to In dia, this necessarily means that Measure 8
"adversely modif[ies] the conditions of competition between domestic and imported 'like products'
and therefore 'affect[s]' the internal sale, offering for sale, purchase[,] and/or use of the imported
'like products'".488
7.215. The United States submits that the evidence submitted by India shows that renewable
energy credits (RECs) issued pursuant to the Michigan Equipment Multiplier "have accounted for only
0.0000878% of all RECs generated since" the RESPM entered into force in 2009. According to the
United States489, this "rebuts any suggestion that [the] Michigan Equipment Multiplier has 'induced'
(i.e. incentivized) buyers to 'purchase' or 'use' renewable energy systems made in Michigan as
opposed to imported like products".490 The United States argues that because incentivization "is the
vector by which India claims" that the measure at issue affects products, India has "necessarily
failed to establish that [the measure] has 'affect[ed]' the 'use' of products within the mea ning of"
Article III:4.491
7.216. As explained above492, the RESPM requires electric providers to maintain renewable energy
credit portfolios. Electric providers obtain RECs by generating or purchasing renewable energy, at a
rate of one credit per megawatt hour of e lectricity generated from each of their renewable energy
systems.493 However, additional RECs are available per megawatt hour produced from renewable
energy systems constructed using ( i) equipment made in Michigan (Michigan Equipment
Multiplier)494; or (ii) a workforce composed of residents of Michigan (Michigan Labour Multiplier).495
Such additional RECs are not available for energy produced using a renewable energy system made
wholly or partly from equipment manufactured outside of Michigan, or constructed by non-Michigan
workforce.
7.217. In our view, India's demonstration that the Michigan Equipment and Labour Multipliers make
an advantage available for the use of local products (i.e. renewable energy systems manufactured
using Michigan-origin components or by a wor kforce made up of Michigan residents), whereas the
same advantage is not available when imported or other non -local products are used, is sufficient
to make a prima facie case that the Michigan Equipment and Labour Multipliers affect the sale,
purchase, transportation, distribution or use of the relevant products.
7.218. India has not contested the United States' assertion that the evidence on the record shows
that only a miniscule number of RECs generated under the RESPM (some 0.0000878%) have been
issued pursuant to the Michigan Equipment Multiplier. In our view, the evidence relied upon by both
parties, the Michigan Public Service Commission's Annual Report of Implementation of PA 295
Renewable Energy Standard and the Cost-Effectiveness of Energy Standards, is somewhat unclear,
because although it contains the graphs relied upon by the United States in support of its position,
it also contains a series of pie charts that appear to show that between 2009 and 2015 an average
of 10% of annual RECs were generated as "incentive" RECs.496 Moreover, the aforementioned Annual

488 India's first written submission, para. 777.
489 United States' first written submission, para. 117.
490 United States' first written submission, para. 118.
491 United States' first written submission, para. 118.
492 See para. 2.40 above.
493 Michigan Public Act No. 342, Section 39(1) (Exhibit IND-44).
494 Michigan Public Act No. 342, Section 39(2)(d) (Exhibit IND-44).
495 Michigan Public Act No. 342, Section 39(2)(e) (Exhibit IND-44).
496 Michigan Public Service Commission, Annual Report of Implementation of PA 295 Renewable Energy
Standard and the Cost-Effectiveness of Energy Standards (15 February 2017), Appendix D (Exhibit US-20).

Report states that "[i]t appears that Michigan's incentive REC provision is meeting its intended
purpose to encourage developers to maximize utilization of Michigan equipment and labour".497 We
are not entirely clear how to reconcile these pie charts and this statement with the United States'
argument that the report indicates that only a tiny fraction of a per cent of all RECs have been
generated pursuant to the challenged incentives.
7.219. However, even if the United States' argument were correct, we do not consider that it would
be capable of rebutting India's prima facie showing that the Multipliers affect the sale, purchase,
transportation, distribution or use of the relevant products. This is because, as explained above, the
relevant question at this point of our analysis is whether the measure has an impact on the conditions
of competition between domestic and imported like products, not whether or the extent to which it
has or is actually influencing the purchasing decisions of private firms "under current circumstances".
In our view, the Michigan Equipment an d Labour Multipliers "clearly involve[] formally different
treatment of imported and domestic products albeit that the actual trade effects of this different
treatment may be minimal under current circumstances". 498 Thus, in assessing whether the
Multipliers affect the sale, purchase, transportation, distribution or use of the relevant products, the
question whether any person or enterprise has actually decided to take up that advantage is, in our
view, beside the point.
7.220. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the Michigan Equipment Multiplier and the Michigan Labour Multiplier "affect the internal sale,
offering for sale, purchase, transportation, distribution or use" of products within the meaning of
Article III:4 of the GATT 1994.
7.3.3.2.8 Measure 9: Delaware Equipment Bonus / Delaware Workforce Bonus
7.221. India submits that both the Delaware Equipment and Workforce Bonuses "provide higher
incentives (i.e. an advantage) based on the in -state manufacture level of th e specified renewable
energy equipment". 499 India contends that, as a result, the conditions of competition between
domestic and imported like products are modified to the detriment of the latter, and therefore both
the Delaware Equipment and Workforce Bonus es affect the sale, purchase , transportation,
distribution or use of the relevant products.500
7.222. The United States responds that "India has failed to demonstrate that the Delaware
Equipment Bonus incentivizes the 'purchase' of renewable energy products manufac tured in
Delaware."501 According to the United States, "India has failed to demonstrate that RECs [renewable
energy credits] associated with the 'Delaware Equipment Bonus' (i.e., 'Bonus RECs') in particular
are tradable instruments or have independent monetary value." 502 The United States supports its
view with reference to the language of the provision setting forth the Delaware Equipment Bonus503,
which establishes that retail electricity suppliers shall recei ve an additional 10% credit " toward
meeting the renewable energy portfolio standards…".504 For the United States, this shows that "retail
electricity suppliers cannot trade Bonus RECs for monetary value, but use them only for purposes of
satisfying their obligations under Delaware's [renewable energy portfolio standards]".505
7.223. Furthermore, the United States submits that India has failed to demonstrate that "the
prospect of receiving Bonus RECs incentivizes retail electricity suppliers to purchase renewable
energy generation equipment made in Delaware."506 In that respect, the United States is of the view
that the Delaware Equipment Bonus cannot incentivize the purchase or use of equipment
manufactured in Delaware because it is granted to retail electricity suppliers that do not generate
power but only distribute it. The United States indicates that the Delaware Equipment Bonus is not

497 Michigan Public Service Commission, Annual Report of Implementation of PA 295 Renewable Energy
Standard and the Cost-Effectiveness of Energy Standards (15 February 2017), pp. 22-23 (Exhibit US-20).
499 India's first written submission, para. 871.
500 India's first written submission, para. 871.
501 United States' first written submission, para. 119.
502 United States' first written submission, para. 120 (emphasis original).
503 Delaware Code, Title 26, Chapter 1, Subchapter III-A, Section 351(d) (Exhibit IND-54).
504 United States' first written submission, para. 120 (emphasis original).
505 United States' first written submission, para. 120.
506 United States' first written submission, para. 121.

addressed to "generation units", which are the ones generating power and making purchasing
decisions as to renewable energy generation equipment.507
7.224. Finally, the United States notes that "'[s]olar panels are no longer manufactured in Delaware'
and have not been produced in Delaware since 2013".508 As argued with respect to other measures
at issue, the United States considers that "[b]ecause incentivization is the vector by which India
claims that Delaware Equipment Bonus 'affects' the ' purchase' or 'use' of products within the
meaning of Article III:4, India has necessarily failed to establish that the Bonus 'affects' the 'use' of
products".509
7.225. As explained above 510, the Delaware Renewable Energy Portfolio Standards Act ( REPSA)
provides retail electricity suppliers with an additional 10% credit toward meeting the renewable
energy portfolio standards for solar or wind energy installations, provided that a minimum of 50%
of the cost of renewable energy equipment, inclusive of mounting components, are manufactured in
Delaware (the Delaware Equipment Bonus), or that the facility is constructed or installed with a
minimum of 75% in-state workforce (the Delaware Workforce Bonus). These bonuses can be applied
cumulatively. The measure does not require the use of renewable energy equipment at least partially
(50%) manufactured in Delaware or facilities constructed by a Delaware-based workforce, but in the
absence of such equipment or facilities, no additional credits will be generated.
7.226. In our view, In dia's demonstration that the Delaware Equipment and Workforce Bonuses
make an advantage available for the use of local products (i.e. renewable energy equipment
manufactured using Delaware -origin inputs or by a workforce made up of Delaware residents),
whereas the same advantage is not available when imported products are used, is sufficient to make
a prima facie case that the measure affects the sale, purchase, transportation, distribution or use of
the relevant products.
7.227. Turning to the United States' argument that India has failed to demonstrate that the RECs
are tradable instruments or have independent monetary value, we start by noting that, as indicated
by the United States, retail electricity suppliers may use RECs and solar renewable energy credits
(SRECs) to secure compliance with the renewable energy portfolio standards established pursuant
to the relevant subchapter of the Delaware Code. 511 The Delaware Code also provides in its
Section 360(a) for the possibility for retail electricity suppliers to " sell or transfer any [REC] or
[SREC] not needed to meet said standards". 512 Therefore, we do not agree with the United States'
argument that retail electricity suppliers can use their RECs or SRECs "only for purposes of satisfying
their obligations under Delaware's [renewable energy portfolio standards]".513 In light of the text of
Section 360(a) of the Delaware Code, it is clear to us that retail electricity suppliers are allowed to
sell or transfer any RECs or SRECs they may not need to achieve their renewable energy portfolio
standards. The reference in Sections 356(d) and (e) of the Delaware Code to "additional 10% credit
toward meeting the renewable energy portfolio standards " does not preclude the possibility, in our
view, of retail electricity suppliers s elling or transferring the RECs or SRECs not needed in order to
meet the standard. We consider that any potential derogation of such possibility would have been
explicitly provided by the legislator.
7.228. Moreover, there is considerable evidence on the record that supports our view that RECs
and SRECs are tradable instruments with monetary value. First, the Delaware Code defines both
RECs and SRECs as "tradable instrument[s]". 514 Second, India has provided a number of exhibits
referring to the establishment of a market to trade such instruments, as well as detailed regulations
governing the procurement process. By way of example, we find numerous references in the

507 United States' first written submission, paras. 122-123.
508 United States' first written submission, para. 124.
509 United States' first written submission, para. 125.
510 See para. 2.52 above.
511 Delaware Code, Title 26, Chapter 1, Subchapter III-A, Section 360(a) (Exhibit IND-54).
512 Delaware Code, Title 26, Chapter 1, Subchapter III-A, Section 360(a) (Exhibit IND-54).
513 United States' first written submission, para. 120.
514 Delaware Code, Title 26, Chapter 1, Subchapter III-A, Sections 352(18) and 352(25) (Exhibit
IND-54).

REPSA515 to the existence of a market where RECs can be transferred or sold among retail electricity
suppliers.516 We further find on the record exhibits explaining how to sell RECs 517, as well as
recommendations of the renewable energy taskforce on the State of Delaware Pilot Program for the
Procurement of SRECs where prices per SREC are listed. 518 In light of the evidence provided, we
conclude that RECs and SRECs have monetary value and can be traded.
7.229. We now move on to the United States' argument that India has failed to prove that the
Delaware Bonuses incentivize the purchase of renewable energy generation equipment of Delaware
origin because they are addressed to entities (i.e. retail electricity suppliers) that do not generate
electricity but only distribute it. We first note that, as the United States argues, retail electricity
suppliers do not generate electricity. The Delaware Code defines "retail electricity supplier" as "a
person or entity that sells electrical energy to end -use customers in Delaware, including but not
limited to non-regulated power producers, electric utility distribution companies supplying standard
offer, default servi ce, or any successor service to end -use customers."519 We further note that,
despite the fact that generation units can be entitled to RECs and SRECs under certain
circumstances520, the text of the Delaware Bonuses explicitly identifies retail electricity suppliers as
the only potential recipients of the 10% additional credits.521
7.230. Nevertheless, we note that Measure 9 makes additional credits available to electricity
distributors who distribute electricity generated using local equipment. In other words, electricity
distributors receive extra credits when they distribute such energy, but do not receive these credits
if and when they distribute energy generated using non-local, including imported equipment. In our
view, the measure thus formally treats local and imported equipment differently, and therefore has
an impact on the conditions of competition in the market for the equipment itself. The fact that the
electricity distributors who are entitled to receive the benefit are not themse lves generating
electricity is beside the point.
7.231. Finally, we are of the view that the United States' argument with respect to the absence of
solar panel manufacturing activity in Delaware since 2013 cannot rebut India's prima facie case that
the Delaware B onuses affect the purchase and use of the relevant products. First, the Delaware
Equipment Bonus and the Delaware Workforce Bonus encompass both solar and wind energy
installations.522 Thus, these additional credits do not just relate to "solar panels" , but also to wind
energy installations as well as solar energy installations other than "solar panels". Additionally, we
recall that the relevant question at this point of our analysis is whether the measure has an impact
on the conditions of competition between domestic and imported like products, not whether or the
extent to which it has or is actually influencing the purchasing decisions of private firms "under
current circumstances". In our view, the Delaware Equipment and Workforce Bonuses "clearly
involve[] formally different treatment of imported and domestic products albeit that the actual trade
effects of this different treatment may be minimal under current circumstances". 523 Therefore, in
assessing whether the Delaware Equipment Bonus and the Delaware Wo rkforce Bonus affect the
internal sale, offering for sale, purchase, transportation, distribution or use" of the relevant
equipment in the Delaware market, the fact that solar panels have not been produced in Delaware
since 2013 is beside the point.

515 Subchapter III-A in Chapter 1 of Title 26 of the Delaware Code governing the renewable energy
portfolio Standards is known as the "Renewable Energy Portfolio Standards Act". See Delaware Code, Title 26,
Chapter 1, Subchapter III-A, Section 351(a) (Exhibit IND-54).
516 Delaware Code, Title 26, Chapter 1, Subchapter III-A, Section 359(a) (Exhibit IND-54). See also
Delaware Code, Title 26, Chapter 1, Subchapter III-A, Sections 359(c)(2)(b) and 359(d)(Exhibit IND-54).
517 PJM GATS, How Do I Sell RECs? (Exhibit IND-95).
518 Recommendations of the Renewable Energy Taskforce (Exhibit IND-58).
519 Delaware Code, Title 26, Chapter 1, Subchapter III-A, Section 352(22) (Exhibit IND-54). This
Section further clarifies that "[a] retail electricity supplier does not include a municipal electric company".
520 RESPA Rule 3.1.8 provides that "[u]pon designation as an Eligible Energy Resource, the Generation
Unit's owner shall be entitled to one (1) REC for each mega-watt hour of energy derived from Eligible Energy
Resources other than Solar Photovoltaic Energy Resources. Upon designation as an Eligible Energy Resource,
the owner of a Generation Unit employing Solar Photovoltaic Energy Resources shall be entitled to one (1)
SREC for each mega-watt hour of energy derived from Solar Photovoltaic Energy Resource". See Rules and
Procedures to Implement the Renewable Energy Portfolio Standard (Exhibit IND-55).
521 Delaware Code, Title 26, Chapter 1, Subchapter III-A, Section 356(d) and (e) (Exhibit IND-54).
522 Delaware Code, Title 26, Chapter 1, Subchapter III-A, Section 356(d) and (e) (Exhibit IND-54).

7.232. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the Delaware Equipment Bonus and the Delaware Workforce Bonus "affect[] the internal sale,
offering for sale, purchase, transportation, distribution or use" of produ cts'' within the meaning of
Article III:4 of the GATT 1994.
7.3.3.2.9 Measure 10: Minnesota production incentives and rebates
7.233. India argues that the Minnesota solar energy incentive program (SEPI) and the Minnesota
solar photovoltaic (PV) rebate are granted "if the specified products (i.e. solar PV modules …) are
manufactured in Minnesota".524 India considers that these advantages "clearly adversely modify the
conditions of competition between domestic and imported like products and therefore 'affect' the
internal sale, offering for sale, purchase and/ or use of the imported like products".525
7.234. The United States responds that India has failed to demonstrate that these programs under
Measure 10 incentivize the use or purchase of solar products of Minnesota origin. 526 In particular,
the United States refers to a graph from a 2016 Minnesota Department of Revenue (DOR) press
release in which the figures show that "solar installations that received incentives under the Solar
PV Incentive program accounted for less than three per cent of all solar installations in Minnesota
during 2016". 527 As for the Minnesota solar PV rebate , the United States argues that, " [s]ince
incentivization is the vector by which India claims that this measure 'affects' the 'purchase' or 'use'
of products… India has necessarily failed to establish that [ it] 'affects' the 'use' of products" within
the meaning of Article III:4.528
7.235. As explained above 529, the SEPI and the Minnesota solar PV rebate grant incentives and
rebates for the use of solar PV module s made in Minnesota. Although use of non-local, including
imported, solar PV modules is not prohibited or otherwise limited, we note that, where such modules
are used, the financial incentives and rebates set forth in Sections 216C.411 - 415 and 116C.7791
of the 2016 Minnesota Statutes are not provided , given that such modules do not fulfil the
requirement of having been manufactured in Minnesota.
7.236. In our view, India's demonstration that these two programs under Measure 10 confer an
advantage on the use of relevant domestic products (i.e. solar PV modules) that is not available for
the use of the relevant like imported products is sufficient to make a prima facie case that the
measure affects the sale, purchase, transportation, distribution or use of the relevant products.
7.237. We now turn to the United States' argument relating to the "negligible amount" of solar
installations that received incentives under the SEPI during 2016. 530 As noted above, the
United States submits that less than 3% of all solar installations in Minnesota during 2016 received
incentives under the SEPI. We note that India has not contested this argument, and indeed the chart
in the DOR press release indicates the number of applicants and projects funded for each investor-
owned electric utilities (Xcel Energy, Minnesota Power, and Otter Tail Power) under the SEPI.531
7.238. We do not consider that this argument by the United States is capable of rebutting India's
prima facie showing that the measure affects the relevant products. This is because, as explained
above, the relevant question at this point of our analysis is whether the measure has an impact on
the conditions of competition between domestic and imported like products, not whether or the
extent to which it has or is actually influencing the purchasing decisions of private firms "under
current circumstances". In our view, the SEPI and the Minnesota solar PV rebate "involve[] formally
different treatment of imported and domestic products albeit that the actual trade effects of this
different treatment may be minimal under current circumstances". 532 Thus, in assessing whether
these two programs affect t he sale, purchase, transportation, distribution or use of the relevant

524 India's first written submission, para. 1010.
525 India's first written submission, para. 1010.
526 United States' first written submission, para. 127.
527 United States' first written submission, para. 128 (referring to India's first written submission,
para. 983).
528 United States' first written submission, para. 129.
529 See paras. 2.57 and 2.65 above.
530 United States' first written submission, para. 129.
531 United States' first written submission, para. 128 (referring to India's first written submission,
para. 983).

products, the question whether many or few projects have benefitted from the advantage, or the
extent to which they have done so is, in our view, beside the point.
7.239. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the SEPI and the Minnesota solar PV rebate under Measure 10 "affect[] the internal sale, offering
for sale, purchase, transportation, distribution or use" of products within the meaning of Article III:4
of the GATT 1994.
7.3.3.3 Conclusion on "laws, regulations, and requirements affecting the[] internal sale,
offering for sale, purchase, transportation, distribution or use" of relevant products
7.240. In conclusion, we find that India has shown prima facie, and the United States has not
rebutted, that each of the measures at issue is a "law", "regulation" or "requirement" "affecting the[]
internal sale, offering for sale, purchase, transportation, distribution or use" of the relevant products
within the meaning of Article III:4 of the GATT 1994.
7.3.4 Less favourable treatment
7.241. India argues that the measures at issue accord treatment less favourable to imported
products than to like domestic products by incentivizing the use of domestic inputs and thereby
denying effective equality of opportunity to the imported products to compete in the domestic
market.533 India further argues that the measures at issue do not provide equality of opportunity to
the imported products to compete in the domestic market, and that they also modify the conditions
of competition in the relevant domestic market to the detriment of imported products.534
7.242. The United States argues that "if a measure does not 'affect' the use … of a product, it is
difficult to see how the measure coul d 'modify the conditions of competition' with respect to that
product on the market" in such a way as to give rise to less favo urable treatment.535 According to
the United States, since in this case India has failed to show that any of the measures affect th e
sale, purchase, transportation, distribution or use of a product, it has necessarily failed to show that
they modify the conditions of competition.536
7.243. According to the Appellate Body, the term "treatment no less favourable" "requires effective
equality of opportunities for imported products to compete with like domestic products". 537 Thus,
the question "[w]hether or not imported products are treated 'less favourably' than like domestic
products should be assessed … by examining whether a measure modifies the conditions of
competition in the relevant market to the detriment of imported products" 538 or, in other words,
whether any "regulatory differences distort the conditions of competition to the detriment of
imported products".539
7.244. We agree with the United States that, in principle, it is difficult to see how a measure could
accord less favourable treatment to imported than to domestic products without it affecting the sale,
purchase, transport, distribution or use of such products. We recall, however, that less favourable
treatment and the affecting standard are two distinct elements of the legal test under Article III:4
of the GATT 1994, and raise related but different considerations. The question whether a measure
affects the sale, purchase, transportation, distribution or use of products concerns whether the
challenged measure impacts the conditions of competition 540, whereas l ess favourable treatment

533 India's first written submission, paras. 51, 172, 274, 366, 464, 563, 676, 778, 873, 1011 and 1119.
534 India's first written submission, paras. 54, 175, 277, 369, 467, 566, 679, 781, 876, 1014 and 1122.
535 United States' first written submission, para. 80.
536 United States' first written submission, para. 84.
537 Appellate Body Reports, EC – Seal Products, para. 5.101 (fns omitted).
538 Appellate Body Report, Korea – Various Measures on Beef , para. 137 (emphasis original). See also
Appellate Body Reports, EC – Seal Products, para. 5.101.
539 Appellate Body Report, Thailand – Cigarettes (Philippines), para. 128.
540 See para. 7.161 above.

focuses on whether the challenged measure modifies the conditions of competition to the detriment
of imported products.541
7.245. Importantly, in the context of less favourable treatment, the Appellate Body has repeatedly
emphasized that an assessment under Article III:4 of the GATT 1994 "may well involve – but does
not require – an assessment of the contested measure in the light of evidence regarding the actual
effects of that measure in the market".542 A finding of less favourable treatment therefore "need not
be based on the actual effects of the contested measure in the marketplace".543 Moreover, "it does
not require demonstration of trade effects, nor proof that the sourcing decisions of private firms
have actually been impacted by" the measure at issue. 544 Indeed, the Appellate Body has
underscored that "it is irrelevant that the trade effects of [a challenged measure], as reflected in the
volumes of imports, are insignificant or even non-existent".545 This is so because "Article III protects
expectations not of any particular trade volume but rather of the equal competitive relationship
between imported and domestic products."546
7.246. Thus, a panel should attempt to discern "[t]he implications of the contested measure for the
equality of competitive conditions … first and foremost "547 by engaging in "careful scrutiny of the
measure, including consideration of the design, structure, and ex pected operation of the measure
at issue".548 This "careful examination" must be "grounded in close scrutiny of the fundamental
thrust and effect of the measure itself".549 To succeed, a claim of less favourable treatment "cannot
rest on simple assertion", but "will normally require further identification or elaboration of [the
challenged measure's] implications for the conditions of competition".550
7.247. We note that, throughout these proceedings, the United States has argued that, although
India is not required "to proffer empirical evidence that the measures at issue have incentivized the
purchase or use domestic products", it does "bear the burden of demonstrating that the challenged
measures are bound or likely to have such incentivizing effects". 551 In our view, however, a
complainant need not show that a challenged measure is "bound or likely" to modify the conditions
of competition to the detriment of imported products in order to establish the existence of less
favourable treatment. To the contrar y, the Appellate Body has held that "an analysis of less
favourable treatment should not be anchored in an assessment of the degree of likelihood that an
adverse impact on competitive conditions will materialize" 552, and both GATT 553 and WTO panels
have explained that "a measure can be found to be inconsistent with Article III:4 because of its
potential discriminatory impact on imported products". 554 As we understand it, therefore, a

541 Appellate Body Report, Thailand – Cigarettes (Philippines), para. 128 (referring to Appellate Body
Report, Korea – Various Measures on Beef, para. 137).
542 Appellate Body Report, Thailand – Cigarettes (Philippines), para. 134. In the same vein,
the Appellate Body explained that "[t]he analysis of whether imported products are accorded less favourable
treatment … need not be based on empirical evidence as to the actual effects of the measure at issue in the
internal market of the Member concerned", although "[o]f course, nothing precludes a panel from taking such
evidence of actual effects into account." Ibid., para. 129.
543 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215 (emphasis original, fn omitted,
referring to Appellate Body Report, Japan – Alcoholic Beverages II, DSR 1996:I, 97, at 110).
544 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159 (fn omitted, referring to Panel Report,
Canada-Autos, supra, paras. 10.84 and 10.78; and Appellate Body Report, Japan – Alcoholic Beverages II,
pp. 16-17).
545 Appellate Body Report, Japan – Alcoholic Beverages II, p. 16. See also Appellate Body Report, Korea
– Alcoholic Beverages, para. 119.
546 Appellate Body Report, Japan – Alcoholic Beverages II, p. 16.
547 Appellate Body Report, Thailand – Cigarettes (Philippines), para. 130 (emphasis added).
548 Appellate Body Report, Thailand – Cigarettes (Philippines), para. 134. See also ibid., para. 130.
549 Appellate Body Report, Thailand – Cigarettes (Philippines), para. 129 (referring to Appellate Body
Reports, US – FSC (Article 21.5 – EC), para. 215; and Korea – Various Measures on Beef, footnote 44 to para.
142).
550 Appellate Body Report, Thailand – Cigarettes (Philippines), para. 130.
551 United States' second written submission, para. 13 (emphasis original).
552 Appellate Body Report, Thailand – Cigarettes (Philippines), para. 134.
553 GATT Panel Report, US – Section 337, para. 5.13 (observing that numerous GATT panels made
findings under Article III:4 of the GATT 1947 "base[d] … on the distinctions made by the laws, regulations or
requirements themselves and on their potential impact, rather than on the actual consequences for specific
imported products").
554 Panel Report, Canada – Autos, para. 10.78 (emphasis added, fn omitted, referring to Panel Report on
US – Section 337, paras. 5.11 and 5.13).

complainant is not required to quantify the likelihood that a challenged measure will in fact have a
detrimental impact on imported products in order to make a prima facie case of less favourable
treatment. Rather, the focus of the analysis is on the implications of the measure for the market, as
they are discernible from the "design, structure, and expected operation of the measure".555
7.248. With these considerations in mind, we turn to examine each of the challenged measures to
determine whether they accord to imported products treatment less favourable than that accorded
to like products of national origin.
7.3.4.1 Measure 1: Washington State additional incentive
7.249. India submits that the Washington State additional incentive accords less favourable
treatment to imported products vis-à-vis domestic like products "by incentivizing the use of the
specified components manufactured in Washington and thereby denying the effective equality of
opportunity to the imported products to compete in the domestic market of Washington" .556
India argues that the economic development factor applied on the incentive base rate to calculate
the incentive payment is higher "when compared to same components manufactured outside
Washington", thereby resulting in a higher incentive payment.557 According to India, Measure 1 will
lead buyers to prefer specified products manufactured in Washington over like imported products.558
7.250. The United States responds that "India [has not] provided evidence that demonstrates that
the measure at issue has modified the 'conditions of competition' in Washington's market for
renewable energy products 'to the determinant [sic] of imported products'".559 In the United States'
view, since India has failed to establish that the measures affect the sale, purchase, transportation,
distribution or use of the relevant products, it has "failed to demonstrate that the measures at issue
'modify the conditions of competition' between imported and domestic products in Washington."560
7.251. As noted above 561, the Washington State additional incentive is provided for customer -
generated electricity produced using solar inverters, solar modules, stirling converters, or wind
blades manufactured in Washington State.
7.252. As India argues, and as we have found, Measure 1 provides for an additional incentive by
applying a higher economic development factor on the incentive base rate when, and to the extent
that, eligible equipment includes solar inverters, solar modules, stirling converters, and wind blades
manufactured in Washington State.562 Looking at the text, design, and structure of the measure, we
note that the economic development factors for equipment manufactured in Washington State range
from 2.4 to 1, whereas the factor for any equipment used to produce energy by wind, regardless of
its origin, is 0.8, and no factor is applied on the incentive base rate in case of non -local (including
imported) solar modules or stirling converters. 563 The "fundame ntal thrust and effect" 564 of the
challenged measure is thus to tie the amount of the final incentive payment to the use of certain
Washington State -origin equipment. The higher the level of local content used, the higher the
incentive provided.
7.253. On this basi s, we consider that India has shown prima facie that the Washington State
additional incentive modifies the conditions of competition in favour of Washington -made solar
inverters, solar modules, stirling converters, and wind blades by creating a financial incentive
favouring made-in-Washington-State like products.565 We recall in this connection that past cases

555 Appellate Body Report, Thailand – Cigarettes (Philippines), paras. 130 and 134.
556 India's first written submission, para. 51. See also India's first written submission, para. 57.
557 India's first written submission, para. 55.
558 India's first written submission, para. 57.
559 United States' first written submission, para. 85.
560 United States' first written submission, para. 88.
561 See para. 2.8 above.
562 See para. 2.8 above.
563 See para. 2.11 above. Further, we recall that economic development factors can be applied
cumulatively under certain circumstances. See para. 2.12 above.
564 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215.
565 The fact that domestic but non-local like products (i.e. like products from areas of the United States
other than Washington) are accorded the same treatment as imported products under the measure at issue
does not affect this conclusion. As the panel in Canada – Wheat Exports and Grain Imports stated, "where an

have consistently held that the provision of incentives or advantages for the use of domestic over
imported products accords less favourable treatment to such imported products.566
7.254. As noted, the United States' primary response to India's claim is that, because India has
failed to show that Measure 1 affects the sale, purchase, transportation or use of the relevant
products, it follows that it has also failed to show that the measure accords treatment less favourable
to imported than to domestic products.567
7.255. We have already found that, because it provides an advantage for the use of domestic
products but not for the use of imported products, and thus impacts the conditions of competition
between imported and domestic products, Measure 1 does affect the sale, purchase, transportation,
distribution or use of the relevant products. 568 Moreover, as explained above, in our view the
question whether a measure accords treatment less favourable to imported products is distinct from
the question whether it affects the sale, purchase, transport, distribution or use of such products. It
follows that the United States' argument in this regard is not capable of rebutting India's prima facie
case that Measure 1 accords less favourable treatment to imported than to domestic products.
7.256. We recall the United States' argument, in the context of whether the measure affects the
sale, purchase, transportation, distribution or use of products, that the figures provided by India do
not support its assertion that the exponential growth of solar PV systems in Washington State
between 2005 and 2015 is due, or somehow related, to the provision of the W ashington State
additional incentive. We have discussed this evidence above. 569 In the context of the claim before
us, and insofar as th is argument might be relied upon to argue that the measure does not accord
less favourable treatment , it suffices to recal l that past cases have consistently held that neither
evidence of actual market effects nor proof that "the sourcing decisions of private firms have actually
been impacted by" the measure at issue is necessary to make out a case of less favourable
treatment.570 In the present dispute , the implications of Washington State additional incentive for
competitive conditions are explicit from the text, design, and structure of the relevant provisions.
To use the words of the panel in US – FSC (Article 21.5 – EC), "[t]he less favourable treatment we
have found arises by necessary implication from the words actually used in the text" of the measure
at issue.571 Accordingly, we do not consider that evidence showing that the measure may have had
minimal or no market effects in recent years, even if accepted, would be sufficient to rebut India's
prima facie case that the Washington State additional incentive treats non-local products, including
imported products, less favourably than like local products.
7.257. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the Washington State additional incentive modifies the conditions of competition to the
detriment of imported solar inverters, solar modules, stirling converters, and wind blades , and
therefore accords less favourable treatment to such products within the meaning of Article III:4 of
the GATT 1994.
7.3.4.2 Measure 2: California Manufacturer Adder
7.258. India submits that the California Manufacturer Adder accords less favourable treatment to
imported products than to like domestic products. According to India, by "incentivizing th e use of
the eligible equipment that meet the in -state manufacturing level" required, the measure at issue
"den[ies] the effective equality of opportunity to the imported products to compete in the domestic

origin-based difference in regulatory treatment is made between products originating in one area, region or
administrative unit of a country and all other like products – that is, like products originating in other areas of
the same country or originating in foreign countries – Article III:4 requires that the foreign product be granted
treatment no less favourable than that accorded to the most-favoured domestic product". Panel Report,
Canada – Wheat Exports and Grain Imports, para. 6.294 (fn omitted, referring to Panel Report, US – Malt
Beverages, paras. 5.17 and 5.33).
566 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 220; Panel Reports, India – Solar Cells,
EC), para. 8.156.
567 United States' first written submission, para. 88.
568 See para. 7.170 above.
569 See paras. 7.167 - 7.168 above.
570 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
571 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.

market of California".572 India argues that the additional incentive for the use of eligible equipment
manufactured in California, provided that either the California Supplier requirement (under the 2016
California Self -Generation Incentive Program ( SGIP) Handbook) or the California Manufacturer
requirement (under the 2017 SGIP Handbook) are met, modifies the conditions of competition to
the detriment of the imported 'like products' because "a potential buyer will prefer to purchase the
'eligible equipment' satisfying the California Manufacturer or California Supplier criteria … over those
which are imported."573
7.259. The United States responds that, insofar as India has failed to show that the measure at
issue affects the sale, purchase, transportation, distribution or use of the relevant products , India
has "consequently" failed to show that the measure modifies the conditions of competition to the
detriment of imported products and thus accords less favourable treatment to such products.574 The
United States adds that India has not provided "evidence demonstrating that the availability of the
SGIP Adder otherwise operates to modify the 'conditions of competition' in the market for renewable
energy equipment in California 'to the determinant [sic] of imported products.'"575
7.260. As explained above 576, the California Manufacturer Adder consists of an additional 20%
incentive payment for the installation of eligible distributed generation or Advanced Energy Storage
(AES) technologies "from a California Supplier " (under the 2016 SGIP Handbook) or certain
generation and energy storage equipment "manufactured in California" (under the 2017 SGIP
Handbook).
7.261. As India argues, and as we have found, the measure at issue provides for an additional
incentive for the installation of certain equipment to the extent that t his equipment is "from a
California Supplier" or "manufactured in California".577 Looking at the text, design, and structure of
the California Manufacturer Adder, we note that the definitions of both "California Supplier" under
the 2016 SGIP Handbook and "Ca lifornia Manufacturer" under the 2017 SGIP Handbook leave no
doubt that non-local products, including imported products, will under no circumstances qualify for
the California Manufacturer Adder , since these definitions contain requirements regard ing the
location of the manufacturing facility and the residence of its workers, among others.578 In fact, the
2017 SGIP Handbook explicitly requires that "at least 50% of the capital equipment value of the
eligible distributed generation resources must be manufactur ed by an approved 'California
Manufacturer'".579 Thus, the "fundamental thrust and effect" 580 of the challenged measure is to tie
the granting of the additional incentive to the use of equipment manufactured in California.
7.262. On this basis, we consider that India has shown prima facie that the California Manufacturer
Adder modifies the conditions of competition in favour of California -origin581 eligible equipment582
by creating a financial incentive favo uring products of California origin .583 In this connection, we
recall that past cases have consistently held that the provision of incentives or advantages for the

572 India's first written submission, para. 172.
573 India's first written submission, para. 176.
574 United States' first written submission, para. 92.
575 United States' first written submission, para. 90.
576 See para. 2.14 above.
577 See paras. 7.101 - 7.102 above.
578 See paras. 2.16 - 2.17 above.
579 2017 SGIP Handbook, p. 25 (Exhibit IND-15).
580 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215.
581 The fact that domestic but non-local like products (i.e. like products from areas of the United States
other than California) are accorded the same treatment as imported products under the measure at issue does
not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports, para. 6.294
(fn omitted, referring to Panel Report, US – Malt Beverages, paras. 5.17 and 5.33).
582 Distributed generation or AES technologies from a California Supplier (under the 2016 SGIP
Handbook (Exhibit IND-16)) or certain generation and energy storage equipment (under the 2017 SGIP
Handbook (Exhibit IND-15)).
583 Distributed generation or AES technologies from a California Supplier (under the 2016 SGIP
Handbook (Exhibit IND-16)) or certain generation and energy storage equipment (under the 2017 SGIP
Handbook (Exhibit IND-15)). See para. 2.18 above.

use of domestic over imported products accords less favourable treatment to such imported
products.584
7.263. As noted, the United States' p rimary response to India's claim is that, because India has
failed to show that Measure 2 affects the sale, purchase, transportation or use of the relevant
products, it follows that it has also failed to show that the measure accords treatment less favourable
to imported than to domestic products.585
7.264. We have already found that, because it provides an advantage for the use of domestic
products but not for the use of imported products, and thus impacts the conditions of competition
between imported and domestic products, Measure 2 does affect the sale, purchase, transportation,
distribution or use of the relevant products. 586 Moreover, as explained above, in our view the
question whether a measure accords treatment less favourable to imported products is related to,
but distinct from, the question whether it affects the sale, purchase, transport, distribution or use of
products. It follows that the United States' argument in this regard is not capable of rebutting India's
prima facie case that Measure 2 accords less favourable treatment to imported than to domestic
products.
7.265. We also recall that, as discussed above, we do not agree with the United States' argument,
made in the context of the affecting standard, that India should have demonstrated that th e
California Manufacturer Adder has actually had the effect of "inducing" buyers to "purchase" the
relevant products of California -origin. In the context of the claim before us, and insofar as this
argument might be relied upon to argue that the measure does not accord less favourable treatment,
it suffices to note that p ast cases have consistently held that neither evidence of actual market
effects nor proof that "the sourcing decisions of private firms have actually been impacted by" the
measure at issue is necessary to make out a case of less favourable treatment. 587 In our view, the
implications of Measure 2 for competitive conditions are explicit from the text, design, and structure
of the relevant provisions. In this respect, we recall the words of the panel in US – FSC (Article 21.5 –
EC), "[t]he less favourable treatment we have found arises by necessary implication from the words
actually used in the text" of the measure at issue.588 Accordingly, we do not consider that evidence
showing that the measure may have had minimal or no market effects in recent years , even if
accepted, would be sufficient to rebut India's prima facie case that the California Manufacturer Adder
treats non-local products, including imported products, less favourably than like local products.
7.266. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the California Manufacturer Adder modifies the conditions of competition to the detriment of
imported distributed generation or AES technologies (under the 2016 SGIP Handbook) and certain
generation and energy storage equipment (under the 2017 SGIP Handbook), and therefore accords
less favourable treatment to such products within the meaning of Article III:4 of the GATT 1994.
7.3.4.3 Measure 4: Montana tax incentive
7.267. India submits that the Montana tax incentive accords less favourable treatment to imported
products than to like domestic products "b y offering the tax incentives based on the in -state
manufacture level of ethanol and, thereby, den[ies] the effective equality of opportunity to the
imported products to compete in the domestic market of Montana".589 According to India, by giving
ethanol distributors a "direct financial advantage in [the] form of the tax incentive for using the
domestic product", Measure 4 "alter[s] the conditions of competition in the market in favour of the
domestic products and final product derived from such use of domestic products".590

584 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 220; Panel Reports, India – Solar Cells,
EC), para. 8.156.
585 United States' first written submission, para. 92.
586 See para. 7.176 above.
587 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
588 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
589 India's first written submission, para. 366.
590 India's first written submission, para. 369.

7.268. The United States responds that, insofar as India has failed to show that Measure 4 affects
the sale, purchase, transportation, distribution or use of the relevant products, it has "consequently"
failed to show that this measure modifies the conditions of competition to the detriment of imported
products and thus accords less favourable treatment to such products.591
7.269. As explained above592, under Measure 4, a tax incentive is payable to ethanol distributors
on "ethanol … produced in Montana from Montana agricultural products, including Montana wood or
wood products".593 The Montana tax incentive does not make provision for a tax incentive on ethanol
produced outside of Montana.
7.270. As India argues, and as we have found, Measure 4 offers a financial incentive to ethanol
distributors when, and to the extent that, they distil ethanol from Montana-origin ingredients.594
Looking at the text, design, and structure of the Montana tax incentive, we observe that, ethanol
distributors are entitled to 20 cents per gallon of ethanol 100 % produced from Montana -origin
ingredients, "with the amount of the tax incentive for each gallon reduced proportionately, based on
the amount of agricultural or wood products not produced in Montana that is used in the production
of the ethanol". 595 Thus, the amount of the financial incentive is inextricably tied to the u se of
Montana-origin ingredients. The "fundamental thrust and effect" 596 of Measure 4 is that higher
incentives are provided the more local ingredients are used; conversely, the more non -local
ingredients used by an ethanol distributor, the lower the financial incentive to which the distributor
is entitled.
7.271. We do not, however, consider that India has shown that the Montana tax incentive also
modifies the conditions of competition in favour of domestic ethanol, i.e. the "final product". We do
not discount the possibility that an incentive on ingredients may flow through to the final product(s)
in which such ingredients are used, particularly where such ingredients are required to be used in
the production of a particular final product in order to benefit from the incentive. Such flow-through
must, however, at least be argued by the complaining party as part of its burden to adduce
arguments and to substantiate its assertions. 597 India has not done so in the present case; rather,
it has simply asserted598 that because the measure at issue provides a tax -incentive for the use of
domestic ingredients, both the ingredients and the final product are placed in a better competitive
position.599 In our view, such an assertion, without more detailed explanation of how the Montana
tax incentive modifies the conditions of competition with respect to the final product, is not sufficient
to establish the existence of less favourable treatment in regard to the final product.
7.272. On this basis, we consider that India has made a prima facie case that the Montana tax
incentive modifies the conditions of competition in favour of Montana-origin ingredients by creating
a financial incentive favo uring their usage. 600 We recall in this connection that past cases have
consistently found that the pr ovision of incentives or advantages for the use of domestic over
imported products accord less favourable treatment to such imported products. 601 We do not,

591 United States' first written submission, para. 99.
592 See para. 2.20 above.
593 Montana Annotated Code, Section 15-70-522 (Exhibit IND-34).
594 Montana Annotated Code, Section 15-70-522 (Exhibit IND-34).
595 Montana Annotated Code, Section 15-70-522 (Exhibit IND-34).
596 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215.
597 See Appellate Body Reports, Thailand – Cigarettes (Philippines), fn 253 and EC – Tariff Preferences,
para. 105. We also recall the Appellate Body's statement in US – Wool Shirts and Blouses that it would be
"difficult, indeed, to see how any system of judicial settlement could work if it incorporated the proposition that
the mere assertion of a claim might amount to proof." Appellate Body Report, US – Wool Shirts and Blouses,
p. 14.
598 Appellate Body Report, Thailand – Cigarettes (Philippines), para. 130.
599 India's first written submission, para. 369.
600 The fact that domestic but non-local like products (i.e. like products from areas of the United States
other than Montana) are accorded the same treatment as imported products under the measure at issue does
not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports, para. 6.294
(fn omitted, referring to Panel Report, US – Malt Beverages, paras. 5.17 and 5.33).
601 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 220; Panel Reports, India – Solar Cells,
EC), para. 8.156.

however, find that India has made a prima facie case that the measure also modifies the conditions
of competition in favour of ethanol (i.e. the final product) made from such local ingredients.
7.273. As noted, the United States' primary response to India's claim is that, because India has
failed to show that Measure 4 affects the sale, purchase, transportation or use of the relevant
products, it follows that it has also failed to show that the measure accords treatment less favourable
to imported than to domestic products.602
7.274. We have already found that, becaus e it provides an advantage for the use of domestic
products but not for the use of imported products, and thus impacts the conditions of competition
between imported and domestic products, Measure 4 does affect the sale, purchase, transportation,
distribution or use of the relevant products. 603 Moreover, as explained above, in our view the
question whether a measure accords treatment less favourable to imported products is related to ,
but distinct from, the question whether it affects the sale, purchase, transport, distribution or use of
products. It follows that the United States' argument in this regard is not capable of rebutting India's
prima facie case that Measure 4 accords less favourable treatment to imported than to domestic
products.
7.275. Finally, we recall the United States' argument, in the context of whether Measure 4 affects
the sale, purchase, transportation, distribution or use of products, that the evidence on the record
shows that no incentive has been paid under the measure since 1995. 604 We have d iscussed this
evidence above. In the context of the claim before us, and insofar as this argument might be relied
upon to argue that the measure does not accord less favourable treatment, it suffices to recall that
past cases have consistently held that neither evidence of actual market effects nor proof that "the
sourcing decisions of private firms have actually been impacted by" the measure at issue is necessary
to make out a case of less favourable treatment.605 Here, the measure's implications for competitive
conditions are explicit from the text, design, and structure of the relevant provisions. To use the
words of the panel in US – FSC (Article 21.5 – EC), "[t]he less favourable treatment we have found
arises by necessary implication from the words actually used in the text" of the measure at issue.606
Accordingly, we do not consider that evidence showing that Measure 4 may have had minimal or no
market effects in recent years, even if accepted, would be sufficient to rebut India's prima facie case
that the Montana tax incentive treats non -local products, including imported products, less
favourably than like local products.
7.276. For the foregoing reasons, we find that India has shown prima facie, and the United States
has not rebutted, that the Montana ta x incentive modifies the conditions of competition to the
detriment of imported ethanol ingredients. However, we do not consider that India has shown prima
facie that the Montana tax incentive modifies the conditions of competition to the detriment of
ethanol made from imported ingredients. Ultimately, though, having found that India has shown
prima facie that the Montana tax incentive modifies the conditions of competition to the detriment
of one of the two like imported products identified by India, we conclude that India has shown, and
the United States has not rebutted, that the Montana tax incentive accords less favourable treatment
to imported products, within the meaning of Article III:4 of the GATT 1994.
7.3.4.4 Measure 5: Montana tax credit
7.277. India submits that, under the Montana tax credit, "the tax credit is available only where …
biodiesel has been manufactured from Montana produced feedstock".607 According to India, this "tax
credit would play a decisive role in the choice that the consumer makes b etween domestic and
imported products".608 In India's view, "insofar as the tax credit is contingent on the use of Montana
produced feedstock it alters the conditions of competition of such feedstock". 609 Specifically, India
submits that "[t]he provision of th e incentive would necessarily alter the competitive environment

602 United States' first written submission, para. 99.
603 See para. 7.184 above.
604 United States' first written submission, para. 16.
605 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
606 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
607 India's first written submission, para. 468.
608 India's first written submission, para. 468.
609 India's first written submission, para. 469.

as any biodiesel producer would, in order to get the benefit of the refund, use feedstock produced
in Montana to produce biodiesel".610 Moreover, according to India, "[e]ven if the biodiesel producer
is not eligible for such incentive, on account of the tax credit, any person who is eligible for the tax
credit would prefer to buy biodiesel produced entirely from Montana produced feedstock". 611 India
concludes that "[t]his impl[es] that a greater de mand is created, by way of the incentive offered,
for both (a) Montana produced feedstock and (b) biodiesel produced from Montana produced
feedstock".612
7.278. The United States responds that, insofar as India has failed to show that Measure 5 affects
the sale, purchase, transportation, distribution or use of products, it follows "by the same token"
India has also failed to show that the measure modifies the conditions of competition to the detriment
of imported products and thus accords less favourable treatment to such products.613
7.279. As explained above614, the Montana tax credit for biodiesel blending and storage provides
for "special fuel distributors" and "owners or operators of a motor fuel outlet" to receive a "credit
against [certain] taxes … for the costs of inves tments in depreciable property used for storing or
blending biodiesel with petroleum diesel for sale".615 This incentive is only available if the investment
for which the credit is claimed is "used primarily to blend petroleum diesel with biodiesel made
entirely from Montana-produced feedstocks".616
7.280. As India has argued, and as we have found, the Montana tax credit for biodiesel blending
and storage conditions the availability of a tax incentive on the use of local products. Looking at the
text, design, and structure of the Montana tax credit, we note that tax-payers who blend petroleum
diesel with biodiesel made entirely from Montana -produced feedstocks are entitled to the credit,
whereas tax-payers who blend petroleum diesel with biodiesel made wholly or partly from feedstocks
originating outside Montana are not so eligible. We agree with India that by offering a financial
benefit for the use of local feedstock, the "fundamental thrust and effect"617 of Measure 5 is to induce
or incentivize blenders to use Montan a-origin feedstock rather than feedstock from outside of
Montana, including from other Members.
7.281. We also agree with India that Measure 5 modifies the conditions of competition in respect of
biodiesel blended from Montana -origin feedstock. Looking again at t he text, design, and structure
of the measure, we note that it offers a tax incentive on property used not only to blend biodiesel,
but also to store biodiesel blended from Montana -origin feedstock. This means that persons or
enterprises who store biodiese l produced from Montana -origin feedstock receive the incentive,
whereas those who store biodiesel made from feedstock produced outside Montana do not. In our
view, this suggests that the "fundamental thrust and effect"618 of Measure 5 is to create a commercial
incentive to purchase and store biodiesel made from Montana-origin ingredients.
7.282. On this basis, we consider that India has shown prima facie that the Montana tax credit
modifies the conditions of competition in favour of Montana-origin ingredients and biodiesel blended
therefrom by creating a financial incentive favouring their usage.619 We note in this connection that
past cases have consistently found that the provision of incentives or advantages for the use of
domestic over imported products accord less favourable treatment to such imported products.620

610 India's first written submission, para. 469.
611 India's first written submission, para. 469.
612 India's first written submission, para. 469.
613 United States' first written submission, para. 101.
614 See para. 2.24 above.
615 Montana Annotated Code, Section 15-32-703(1) (Exhibit US-11).
616 Montana Annotated Code, Section 15-32-703(4)(a) (Exhibit US-11).
617 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215.
618 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215.
619 The fact that domestic but non-local like products (i.e. like products from areas of the United States
other than Montana) are accorded the same treatment as imported products under the measure at issue does
not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports, para. 6.294
(fn omitted, referring to Panel Report, US – Malt Beverages, paras. 5.17 and 5.33).
620 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 220; Panel Reports, India – Solar Cells,
EC), para. 8.156.

7.283. As noted, the United States' primary response to India's claim is that, because India has
failed to show that Measure 5 affects the sale, purchase, transportation or use of the relevant
products, it follows that it has also failed to show that the measure accords treatment less favourable
to imported than to domestic products.621
7.284. We have already found that, because it provides an advantage for the use of domestic
products but not for the use of imported products, and thus impacts the conditions of competition
between imported and domestic products, Measure 5 does affect the sale, purchase, transportation,
distribution or use of the relevant products. 622 Moreover, as explained above, in our view the
question whether a measure accords treatment less favourable to imported products is related to ,
but distinct from, the question whether it affects the sale, purchase, transport, distribution or use of
products. It follows that the United States' argument in this regard is not capable of rebutting India's
prima facie case that Measure 5 accords less favourable treatment to imported than to domestic
products.
7.285. Finally, we recall the United States' argument, in the context of whether Measure 5 affects
the sale, purchase, transportation, distribution or use of products, that the evidence on the record
shows that no incentive has been paid under Measure 5 since 1995. 623 We have discussed this
evidence above. In the context of the claim before us, and insofar as this argument might be relied
upon to argue that the measure does not accord less favourable treatment, it suffices to recall that
past cases have consistently held that neither evidence of actual market effects nor proof that "the
sourcing decisions of private firms have actually been impacted by" the measure at issue is necessary
to make out a case of less favourable treatment.624 Here, the measure's implications for competitive
conditions are explicit from text, design, and structure of the relevant legislation. To use the words
of the panel in US – FSC (Article 21.5 – EC), "[t]he less favourable treatment we have found arises
by necessary implication from the words actually used in the text" of the measure at issue. 625
Accordingly, we do not consider that evidence showing that Measure 5 has may have had minimal
or no market effects in recent years , even if accepted, would be sufficient to rebut India's prima
facie case that the Montana tax credit treats non -local products, including imported p roducts, less
favourably than like local products.
7.286. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the Montana tax credit modifies the conditions of competition to the detriment of imported
feedstock and bio diesel produced therefrom, and therefore accords less favourable treatment to
such products within the meaning of Article III:4 of the GATT 1994.
7.3.4.5 Measure 6: Montana tax refund
7.287. India argues that because the Montana tax refund "is contingent upon the use of Montana
produced ingredients it alters the conditions of competition for the said ingredients".626 According to
India, "[t]he provision of the incentive would necessarily alter the conditions of competition
environment as any biodiesel producer would, in order to get [the] benefit of the refund, use
ingredients produced in Montana to produce biodiesel". India argues that this creates "a greater
demand … by way of the incentive offered in the upstream market, for Montana produced
ingredients".627 India further submits that Measure 6 "also alters the conditions of competition in the
market in favour of biodiesel produced from ingredients produced in Montana domestic product
[sic]". This is so, in India's view, because "[t]he availability of a tax refund for biodiesel manufactured
from Montana products would imply that distributors/importers/retailers would prefer to use
biodiesel produced using Montana produced ingredients". India concludes that Measure 6 therefore
accords less favourable treatment to imported t han to domestic products within the meaning of
Article III:4 of the GATT 1994.628

621 United States' first written submission, para. 101.
622 See para. 7.191 above.
623 United States' first written submission, para. 16.
624 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
625 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
626 India's first written submission, para. 568.
627 India's first written submission, para. 568.
628 India's first written submission, para. 569.

7.288. The United States responds that, insofar as India has failed to show that Measure 6 affects
the sale, purchase, transportation, distribution or use of the relevant products, it has "consequently"
failed to show that Measure 6 modifies the conditions of competition to the detriment of imported
products and thus accords less favourable treatment to such products.629
7.289. As explained above630, under the Montana tax refund, licensed distributors receive a refund
equal to two cents per gallon on the sale of biodiesel produced entirely from biodiesel ingredients
produced in Montana. Measure 6 also provides for owners and operators of retail motor fuel outlets
to receive a tax refund equal to one cent per gallon on biodiesel purchased from a licensed distributor
if the biodiesel is produced entirely from biodiesel ingredients produced in Montana.
7.290. We find convincing India's submission that the Montana tax refund accords less favourable
treatment to non-local, including imported, products. Looking at the text, design, and structure of
Measure 6, we note that it ties the provision of a tax refund to the use of local products. The refund
is payable only for transactions involving the sale or purchase of biodiesel produced entirely from
Montana-origin ingredients. By offering a financial benefit to licensed distributors who sell biodiesel
made entirely from Montana-origin ingredients, the "fundamental thrust and effect"631 of Measure 6
is to stimulate increased demand for the Montana -origin ingredients that must be used for the
biodiesel to be eligible for the refund. Conversely, Measure 6 reduces demand for non -Montana-
origin ingredients, use of which renders biodiesel ineligible for the tax refund.
7.291. Additionally, the Montana tax refund incentivizes motor fuel retailers to purchase biodiesel
made from local ingredients by offering them a refund of one cent per gallon on biodiesel made from
Montana-origin ingredients, which refund is not available on purchases of biodiesel made wholly or
partly from non -Montana-origin ingredients. The Montana tax refund thereby strengthens the
competitive position of such biodiesel over other biodiesels made wholly or partly from non-Montana-
origin ingredients.
7.292. We therefore consider that India has made a prima facie case that the Montana tax refund
accords treatment less favourable to imported products than to local products.632 We note that this
finding is consistent with the numerous past cases that hav e found that the provision of incentives
or advantages for the use of domestic over imported products accord less favourable treatment to
such imported products.633
7.293. As noted, the United States' primary response to India's claim is that, because India has
failed to show that Measure 6 affects the sale, purchase, transportation or use of the relevant
products, it follows that it has also failed to show that the measure accords treatment less favourable
to imported than to domestic products.634
7.294. We have already found that, because it provides an advantage for the use of domestic
products but not for the use of imported products, and thus impacts the conditions of competition
between imported and domestic products, Measure 6 does affect the sale, purchase, transportation,
distribution or use of the relevant products. 635 Moreover, as explained above, in our view the
question whether a measure accords treatment less favourable to imported products is related to ,
but distinct from, the question whether it affects the sale, purchase, transport, distribution or use of
products. It follows that the United States' argument in this regard is not capable of rebutting India's
prima facie case that Measure 6 accords less favourable treatment to imported than to do mestic
products.

629 United States' first written submission, para. 103.
630 See paras. 2.28 - 2.30 above.
631 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215.
632 The fact that domestic but non-local like products (i.e. like products from areas of the United States
other than Montana) are accorded the same treatment as imported products under the measure at issue does
not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports, para. 6.294
(fn omitted, referring to Panel Report, US – Malt Beverages, paras. 5.17 and 5.33).
633 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 220; Panel Reports, India – Solar Cells,
EC), para. 8.156.
634 United States' first written submission, para. 103.
635 See para. 7.198 above.

7.295. Finally, we recall the United States' argument, in the context of whether Measure 6 affects
the sale, purchase, transportation, distribution or use of products, that the evidence on the record
shows that no incentive has been paid under the measure at issue since 2011.636 We have discussed
this evidence above. In the context of the claim before us, and insofar as th is argument might be
relied upon to argue that the measure does not accord less favourable treatment, it suffices to recall
that past cases have consistently held that neither evidence of actual market effects nor proof that
"the sourcing decisions of private firms have actually been impacted by" the measure at issue is
necessary to make out a case of less favourable treatment.637 Here, the measure's implications for
competitive conditions are explicit from the text, design, and structure of the relevant legislation.
To use the words of the panel in US – FSC (Article 21.5 – EC), "[t]he less favourable treatment we
have found arises by necessary implication from the words actually used in the text" of the measure
at issue.638 Accordingly, we do not consider that evidence showing that Measure 6 may have had
minimal or no market effects in recent years , even if accepted, would be sufficient to rebut India's
prima facie case that the Montana tax refund treats non-local products, including imported products,
less favourably than like local products.
7.296. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the Montana tax refund modifies the conditions of competition to the detriment of imported
ingredients and biodiesel produced therefrom, and therefore accords less favourable treatment to
such products within the meaning of Article III:4 of the GATT 1994.
7.3.4.6 Measure 7: Connecticut additional incentive
7.297. Regarding the Connecticut additional incentive, India submits that, because of the high costs
associated with the installation of solar photovoltaic (PV) modules and solar thermal systems, "any
form of incentive would play a decisive role in the choice that the consumer makes between domestic
and import ed products". Thus, according to India, "[t]he provision of additional incentives
necessarily alters the competitive environment as any consumer would want to reduce its costs by
installing the products that are eligible for the additional incentives".639 India concludes that because
Measure 7 "provid[es] additional incentives for the use of Connecticut-origin product[s], it alters the
conditions of competition in the market in favour of the domestic product", and "[t]his alteration …
is to the detriment of … imported 'like products'".640
7.298. The United States responds that, insofar as India has failed to show that Measure 7 affects
the sale, purchase, transportation, distribution or us e of the relevant products , it follows "by
definition" that it has also failed to show that Measure 7 modifies the conditions of competition to
the detriment of imported products and thus accords less favourable treatment to such products.641
The United States adds that India, in the context of the alleged additional incentive, has argued that
"any incentive would play a decisive role in" consumer choice, whereas what India needed to show
was that the "particular CRSIP [Connecticut Residential Solar Investment Program] measures" have
done so. According to the United States, India's failure to refer to the specific challenged measure
in its arguments means that India has not provided "a particularized analysis of [ Measure 7's]
expected operation before summarily inferring that [it] play[s] a decisive role in incentivizing
purchase or use of products made in the state of Connecticut".642
7.299. In response to the United States' argument concerning India's reference to "any incentive",
India, in response to a question from the Panel, submitted that:
The reference to the phrase "any form of incentive" needs to be read in the context
which has it has been used. The context, of course, is the additional incentives offered
under the challenged measures. In fact, in the very next sentence, India refers to the

636 United States' first written submission, para. 16.
637 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
638 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
639 India's first written submission, para. 679.
640 India's first written submission, para. 680.
641 United States' first written submission, para. 112.
642 United States' second written submission, para. 9 (emphasis original, fns omitted).

additional incentives under the challenged measures at issue. The claim that India has
not offered particularised analysis of the CRSIP measures, therefore, is baseless.643
7.300. As explained above 644, the Connecticut additional incentive is a p art of the CRSIP, which
provides financial incentives to homeowners who install solar PV or solar thermal systems on their
properties.645 Specifically, the Connecticut additional incentive provides that an additional incentive
of up to 5% of the ordinarily available incentive may be made available for the use of "major system
components manufactured or assembled in Connecticut" 646, and another additional incentive of up
to 5% of the ordinarily available incentive may be made available "for the use of major syst em
components manufactured or assembled in a distressed municipality … or a targeted investment
community".647 Nothing in the relevant legislation either requires the installation of systems whose
"major system components" are locally manufactured or prevents the installation of systems whose
"major system components" are not locally manufactured. Homeowners who install such systems
are eligible to receive the base incentives provided for in the CRSIP. However, such homeowners
are not eligible to receive the additional incentive, which may be up to 5% of the CRSIP base
incentive payable to all homeowners who install solar PV or solar thermal systems.648
7.301. We are convinced by India's submission that the Connecticut additional incentive accords
less favourable trea tment to non -local products, including imported products. Looking at its text,
design, and structure, we observe that Measure 7 establishes a system under which homeowners
who choose to install solar PV or solar thermal systems made from locally produced components
receive a larger refund than those who decide to install systems made from non-local major system
components. We agree with India that, by providing a larger refund for the installation of systems
made with locally produced components, the "fundamental thrust and effect"649 of Measure 7 is to
stimulate demand for systems made from locally produced components, as opposed to systems
made with components produced elsewhere. This in turn strengthens the competitive position of
such components over components produced outside of Connecticut.
7.302. In our view, therefore, India has established prima facie that the Connecticut additional
incentive modifies the conditions of competition to the detriment of such imported components.650
We note in this connection that this finding is consistent with the many past cases that have held
that the provision of incentives or advantages for the use of domestic over imported products accord
less favourable treatment to such imported products.651
7.303. We do not agree with the United States' argument that India has failed to provide a
sufficiently particularized analysis of Measure 7. Contrary to the United States' suggestion, India's
first written submission is not concerned with incentives in the abstract. Rather, paragraphs 679 and
680 of India's first written submission clearly explain why, in India's view, the Connecticut additional
incentive modifies the conditions of competition to the detriment of non-local products, including
imported products. Paragraph 679 begins by noting the high cost of installing solar PV and solar
thermal systems. It then states that, in light o f such costs, any incentive that lowered such cost
would play a key role in a consumer's decision whether and which system to install. Finally, it focuses
on Measure 7, arguing that, because the provision of a financial incentive that lowers the costs of
certain solar PV or solar thermal systems would create an incentive in favour of those systems, it
follows that the Connecticut additional incentive, which provides a bigger refund to homeowners
who install systems made from local components than to those w ho install systems made from

643 India's response to Panel question No. 118, para. 42.
644 See para. 2.32 - 2.35 above.
645 General Statutes of Connecticut, Section 16-245ff(c) (Exhibit IND-124).
646 As noted, the term "major system components" is not defined in the relevant legal instruments.
647 Connecticut General Statutes, Section 16-245ff(i) (Exhibit IND-124).
648 We recall that we have found that the Connecticut additional incentive is mandatory, in the sense
that the Connecticut Public Utilities Regulatory Authority (PURA) is required to set an additional incentive of
more than 0% and no higher than 5% if certain requirements are met. See para. 7.209 above.
649 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215.
650 The fact that domestic but non-local like products (i.e. like products from areas of the United States
other than Connecticut) are accorded the same treatment as imported products under the measure at issue
does not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports, para. 6.294
(fn omitted, referring to Panel Report, US – Malt Beverages, paras. 5.17 and 5.33).
651 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 220; Panel Reports, India – Solar Cells,
EC), para. 8.156.

non-local components, creates a greater incentive in favour of such systems, thereby modifying the
conditions of competition in their favour.652 In other words, India explains that, in the costly field of
solar PV and solar therm al systems, cheaper systems will be more competitive; by providing
additional refunds for the purchase of systems made with local components, the Connecticut
additional incentive modifies the conditions of competition in favour of such systems.
7.304. In our view , the case as set out by India in paragraphs 679 and 680 of its first written
submission is therefore sufficiently detailed and particularized to raise a prima facie case that the
Connecticut additional incentive accords less favourable treatment to imported products.
7.305. This brings us to the United States' other argument, which is that, because India has not
shown that the measure affects the sale, purchase, transporta tion, distribution or use of products,
it consequentially cannot accord products less favourable treatment.
7.306. We have already found that, because it provides an advantage for the use of domestic
products but not for the use of imported products, and thus im pacts the conditions of competition
between imported and domestic products, Measure 7 does affect the sale, purchase, transportation,
distribution or use of the relevant products. 653 Moreover, as explained above, in our view the
question whether a measure ac cords treatment less favourable to imported products is related to ,
but distinct from, the question whether it affects the sale, purchase, transport, distribution or use of
products. It follows that the United States' argument in this regard is not capable of rebutting India's
prima facie case that Measure 7 accords less favourable treatment to imported than to domestic
products.
7.307. Finally, we recall the United States' argument , in the context of whether Measure 7 affects
the sale, purchase, transportation, distribution or use of products, that data submitted by India do
not establish that any additional incentive payments have been made. Insofar as this argument
might be relied upon to argue that the measure does not accord less favourable treatment, we note
that past cases have consistently held that neither evidence of actual market effects nor proof that
"the sourcing decisions of private firms have actually been impacted by" the measure at issue is
necessary to make out a case of less favo urable treatment.654 Here, the implications of Measure 7
for competitive conditions are explicit from the text, design, and structure of the relevant legislation.
To use the words of the panel in US – FSC (Article 21.5 – EC), "[t]he less favourable treatment we
have found arises by necessary implication from the words actually used in the text" of Measure 7.655
Accordingly, we do not consider that evidence showing that Measure 7 may have had minimal or no
market effects in recent years, even if accepted, would be sufficient to rebut India's prima facie case
that the Connecticut additional incentive treats non-local products, including imported products, less
favourably than like local products.
7.308. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the Connecticut additional incentive modifies the conditions of competition to the detriment of
imported major system components of solar PV and solar thermal systems, and the systems made
with such components, and therefore accords less favourable treatment to such products within the
meaning of Article III:4 of the GATT 1994.
7.3.4.7 Measure 8: Michigan Equipment Multiplier / Michigan Labour Multiplier
7.309. India submits that, under the Michigan Equipment and Michigan Labour Multipliers, "only
those renewable energy systems that meet the statutorily prescribed level of in-state manufacturing
are eligible for the additional incentives".656 In India's view, this means that "the relevant imported
products do not get the equality of opportunity to compete on the domestic market of Michigan".657
According to India, "[s]ince [] the buyers are induced to purchase renewable energy s ystem[s] of
Michigan origin, the 'like' imported products, which are negated the equality of competition, become

652 India's first written submission, paras. 679 and 680.
653 See para. 7.198 above.
654 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
655 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
656 India's first written submission, para. 782.
657 India's first written submission, para. 782 (emphasis original).

undesirable in the eyes of a potential buyer". 658 India concludes that such imported products are
therefore accorded less favourable treatment.
7.310. The United States responds that, insofar as India has failed to show that Measure 8 affects
the sale, purchase, transportation, distribution or use of the relevant products, it has "consequently"
also failed to show that the measure modifies the conditions of competition to the detriment of
imported products and thus accords less favourable treatment to such products. 659 Moreover, the
United States submits that India has failed to "provide any analysis as to why [ Measure 8] would
result in buyers being 'induced to purchase' equipment made in Michigan or cause imported products
to become 'undesirable'". In the United States' view, "India simply assumes in passing … that
[Measure 8] will incentivize the purchase of locally ma nufactured equipment on the Michigan
market".660
7.311. In response to the United States' argument that it has failed to explain how Measure 8 would
modify the conditions of competition to the detriment of imported products, India submitted that, in
its first written submission, it "explained the discriminatory element of the challenged measure[,]
i.e. incentives that are offered once the in -state level of manufacturing criterion is met". In India's
view, "[t]his … denies the equality of opportunity to the like imported products and that is sufficient
for proving less favourable treatment".661
7.312. As explained above662, the Michigan Equipment and Michigan Labour Multipliers are part of
a broader set of rules and regulations called "Renewable Energy Standards Program in the State of
Michigan" (RESPM). Inter alia, the RESPM requires electricity providers to maintain a portfolio of
renewable energy credits (RECs) that can be collected either by generating or purchasing renewable
energy.663 The Multipliers at issue provide that ele ctricity providers are eligible to receive an extra
1/10 REC (over and above the RECs ordinarily allotted for generation or purchase of renewable
electricity) for every megawatt hour of electricity generated ( i) from a renewable energy system
constructed u sing equipment made in Michigan 664, or ( ii) from a renewable energy system
constructed using a workforce composed of residents of Michigan.665
7.313. In our view, India has convincingly shown that both the Michigan Equipment and Michigan
Labour Multipliers accord le ss favourable treatment to imported products. Looking at the text,
design, and structure of the Multipliers, we note that both programs give electricity providers who
generate electricity using systems made from local equipment or by local workforce, or who purchase
electricity so generated, an extra 1/10 REC per kilowatt hour of electricity. This means that providers
who generate or purc hase such electricity will more easily be able to satisfy the regulatory
requirements concerning the collection of RECs. In the context of a regulatory system requir ing
electricity providers to obtain a certain number of credits per year, the possibility of obtaining extra
credits without having to produce or purchase additional energy is a clear incentive favouring the
use of renewable energy systems containing local inputs or constructed using local workforce.
Accordingly, the "fundamental thrust and effect"666 of the Multipliers is to promote the purchase of
renewable energy systems made with local components or constructed using local labour.
7.314. We thus consider that India has shown prima facie that the Multipliers under Measure 8
incentivize the purchase of renewable energy systems made with local components or constructed

658 India's first written submission, para. 782.
659 United States' first written submission, para. 118.
660 United States' second written submission, para. 10.
661 India's response to Panel question No. 118, para. 42.
662 See para. 2.40 above.
663 Michigan Public Act No. 295, Section 39(1) (Exhibit IND-43).
664 Michigan Public Act No. 295, Section 39(2)(d) (Exhibit IND-43). This additional credit is only
available for the first three years after the renewable energy system first produces electricity on a commercial
basis.
665 Michigan Public Act No. 295, Section 39(2)(e) (Exhibit IND-43). This additional credit is only
available for the first three years after the renewable energy system first produces electricity on a commercial
basis.
666 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215.

using local labour, and therefore modify the conditions of competition in their favour, and to the
detriment of like imported products.667
7.315. In this connection, we do not agree with the United States that India's arguments concerning
the Michigan Equipment and Michigan Labour Multipliers lack analysis or are based on presumptions.
Paragraphs 735 -749 of India's first written submission contain a detailed explanation of the
Multipliers, explaining both their regulatory context and expected and historical operation.
India supports its description of the Multipliers by explaining how they have influenced the sourcing
decisions of one particular Michigan electricity provider.668 India then proceeds to elaborate its legal
arguments, including those cited earlier in this section. 669 Those legal arguments draw on, and are
supported by , the factual argumentation contained in paragraphs 735-749. Reading these two
sections of India's submission together , we consider that India has sufficiently explained both the
factual and legal bases of its claim against these Multipliers. Specifically, we consider that India has
explained why the Multipliers "would result in purchasers being 'induced to purchase' renewable
energy systems containing local components or constructed using local workforce" 670 – as noted in
the previous paragraph, this is because the availability of extra RECs is a clear incentive in the
context of a regulatory system requiring that elect ricity providers obtain a certain number of RECs
per year. In our view, this analysis emerges clearly from India's submission when all the relevant
parts of that document are read as a whole, and not in an unduly isolated or fragmented manner,
as, for example, by reading one subsection without reference to other related subsections.
7.316. We now turn to the United States' other argument, namely that, because India has not
shown that Measure 8 affects the sale, purchase, transportation, distribution or use of the relevant
products, it consequentially cannot accord imported products less favourable treatment.671
7.317. We have already found that, because it provides an advantage for the use of domestic
products but not for the use of imported products, and thus impacts the conditions of competition
between imported and domestic products, Measure 8 does affect the sale, purchase, transportation,
distribution or use of the relevant products. 672 Moreover, as explained above, in our view the
question whether a measure accords treatment less favourable to imported products is related to ,
but distinct from, the question whether it affects the sale, purchase, transport, distribution or use of
products. It follows that the United States' argument in this regard is not capable of rebutting India's
prima facie case that Measure 8 accords less favourable treatment to imported than to d omestic
products.
7.318. Finally, we recall the United States' argument , in the context of whether Measure 8 affects
the sale, purchase, transportation, distribution or use of products, that evidence on the record shows
that only a miniscule number of credits generated under the RESPM have been issued pursuant to
the Michigan Equipment Multiplier. We discussed the evidence above.673 In the context of the claim
before us, and insofar as this argument might be relied upon to argue that the measure does not
accord less favourable treatment , it suffices to recall that past cases have consistently held that
neither evidence of actual market effects nor proof that "the sourcing decisions of private firms have
actually been impacted by" the measure at issue is necessary to make out a case of less favourable
treatment.674 Here, the implications of Measure 8 for competitive conditions are explicit from the
text, design, and structure of the relevant legislation. To use the words of the panel in US – FSC
(Article 21.5 – EC), "[t]he less favourable treatment we have found arises by necessary implication
from the words actually used in the text" of the measure at issue.675 Accordingly, we do not consider
that evidence showing that Measure 8 may have had minimal or no market effects in recent years
is sufficient to rebut India's prima facie case that Michigan Equipment and the Michigan Labour

667 The fact that domestic but non-local like products (i.e. like products from areas of the United States
other than Michigan) are accorded the same treatment as imported products under the measure at issue does
not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports, para. 6.294
(fn omitted, referring to Panel Report, US – Malt Beverages, paras. 5.17 and 5.33).
668 India's first written submission, paras. 745-746.
669 See para. 7.309 above.
670 United States' second written submission, para. 10.
671 India's first written submission, para. 118.
672 See para. 7.220 above.
673 See para. 7.218 above.
674 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
675 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.

Multipliers treat non -local products, including imported products, less favourably than like local
products.
7.319. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the Michigan Equipment and Michigan Labour Multipliers modify the conditions of competition
to the detriment of renewable energy systems made from imported components, or constructed
using non-local labour. These Multipliers therefore accord less favourable treatment to such products
within the meaning of Article III:4 of the GATT 1994.
7.3.4.8 Measure 9: Delaware Equipment Bonus / Delaware Workforce Bonus
7.320. India submits that the Delaware Equipment Bonus and the Delaware Workforce Bonus accord
less favourable treatment to imported products than to like domestic products "by offering the
additional incentives based on the in -state manufacture level of the specified renewable energy
equipment".676 According to India, this "den[ies] the effective equality of opportunity to the imported
products to compete in the domestic market of Delaware". 677 India argues that "a potential buyer
will prefer to purchase the specified products satisfying th e in-state manufacture level than those
which are imported" because of the additional incentive, thereby modifying "the conditions of
competition to the detriment of the imported products and in favour of the 'like products' of
Delaware-origin".678
7.321. The United States responds that, insofar as India has failed to show that Measure 9 affects
the sale, purchase, transportation, distribution or use of the relevant products, it follows that India
has "likewise" failed to show that Measure 9 modifies the conditions of competition to the detriment
of imported products and thus accords less favourable treatment to such products.679
7.322. As explained above680, the Delaware Equipment Bonus and the Delaware Workforce Bonus
consist of an additional 10% credit towards meeting the r enewable energy portfolio standards for
solar or wind energy installations, provided that a minimum of 50% of the cost of renewable energy
equipment, inclusive of mounting components, are manufactured in Delaware, or that the facility is
constructed or installed with a minimum of 75% in-state workforce.
7.323. We find compelling India's argument that the Delaware Equipment and Workforce Bonuses
accord less favourable treatment to non-local products, including imported products. Looking at the
text, design, and structure of the Equipment and Workforce Bonuses, we note that both programs
give retail electricity suppliers an additional 10% credit towards meeting the renewable energy
portfolio standards for solar or wind energy installations sited in Delaware provided that
(i) a minimum of 50% of the cost of renewable energy equipment, incl usive of mounting
components, are manufactured in Delaware, or (ii) the facility is constructed or installed with a
minimum of 75% of instate workforce. This means that retail electricity suppliers that sell such
electricity will more easily meet the renew able energy portfolio standards. In the context of a
regulatory system requiring retail electricity suppliers to obtain a certain number of credits per year,
the possibility of obtaining extra credits without having to sell additional energy is a clear incentive
favouring the use of renewable energy equipment, including mounting components, containing local
inputs and facilities constructed using local workforce. We therefore agree with India that the
"fundamental thrust and effect"681 of the Bonuses is to in centivize the purchase of such renewable
energy equipment, mounting components, and facilities.
7.324. In our view, therefore, India has made a prima facie case that the Delaware Equipment
Bonus and the Delaware Workforce Bonus modify the conditions of competitio n in favour of
renewable energy equipment, inclusive of mounting components, manufactured in Delaware (at
least 50% of its cost) and facilities constructed or installed with a minimum of 75% in -state

676 India's first written submission, para. 873.
677 India's first written submission, para. 873. See also India's first written submission, para. 878.
678 India's first written submission, para. 878.
679 United States' first written submission, para. 125.
680 See para. 2.52 above.
681 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215.

workforce by creating a financial incentive favouring their usage.682 We recall in this connection that
past cases have consistently found that the provision of incentives or advantages for the use of
domestic over imported products accord less favourable treatment to such imported products.683
7.325. As noted, the Unite d States' primary response to India's claim is that, because India has
failed to show that Measure 9 affects the sale, purchase, transportation or use of the relevant
products, it follows that it has also failed to show that the measure accords treatment less favourable
to imported than to domestic products.684
7.326. We have already found that, because it provides an advantage for the use of domestic
products but not for the use of imported products, and thus impacts the conditions of competition
between imported and domestic products, Measure 9 does affect the sale, purchase, transportation,
distribution or use of the relevant products. 685 Moreover, as explained above, in our view the
question whether a measure accords treatment less favourable to imported products is related to ,
but distinct from, the question whether it affects the sale, purchase, transport, distribution or use of
products. It follows that the United States' argument in this regard is not capable of rebutting India's
prima facie case that Measure 9 accords less favourable treatment to imported than to d omestic
products.
7.327. Finally, we recall the United States' arguments, in the context of whether Measure 9 affects
the sale, purchase, transportation, distribution or use of products, concerning the tradability and
monetary value of renewable energy credits and solar renewable energy credits, the absence of solar
panel manufacturing activities in Delaware, and the fact that the measure is addressed to entities
that distribute electricity and do not generate it. We have discussed this evidence above. 686 For
present purposes, and insofar as this argument might be relied on to argue that the measure does
not accord less favourable treatment, it suffices to recall that past cases have consistently held that
neither evidence of actual market effects nor proof that "the sourcing decisions of private firms have
actually been impacted by" the measure at issue is necessary to make out a case of less favourable
treatment.687 The implications for competitive conditions of the Delaware Bonuses challenged by
India are explicit from the text, design, and structure of the relevant provisions. To use the words
of the panel in US – FSC (Article 21.5 – EC), "[t]he less favourable treatment we have found arises
by necessary implication from the words actually used in the text" of Measure 9.688 Accordingly, we
do not consider that the United States has rebutted India's prima facie case that the Delaware
Equipment Bonus and the Delaware Workforce Bonus treat non-local products, including imported
products, less favourably than like local products.
7.328. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the Delaware Equipment Bonus and the Delaware Workforce Bonus modify the conditions of
competition to the detriment of imported renewable energy equipment, mounting components, and
facilities, and therefore accords less favourable treatment to such products within the meaning of
Article III:4 of the GATT 1994.
7.3.4.9 Measure 10: Minnesota production incentives and rebates
7.329. India submits that the Minnesota solar energy production incentive (SEPI) and the Minnesota
solar photovoltaic ( PV) rebate under Measure 10 accord less favourable treatment to imported
products than to like domestic products "by incentivizing and, thereby, deny[ing] the effective
equality of opportunity to the imported products to compete in the domestic market of Minnesota".689

682 The fact that domestic but non-local like products (i.e. like products from areas of the United States
other than Delaware) are accorded the same treatment as imported products under the measure at issue does
not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports, para. 6.294
(fn omitted, referring to Panel Report, US – Malt Beverages, paras. 5.17 and 5.33).
683 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 220; Panel Reports, India – Solar Cells,
EC), para. 8.156.
684 United States' first written submission, para. 125.
685 See para. 7.198 above.
686 See paras. 7.222 - 7.224 above.
687 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
688 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
689 India's first written submission, para. 1011.

According to India, by "creating a distinction between the domestic and imported pr oducts on the
basis of origin and by giving the end consumers a direct financial advantage in terms of incentives
or rebates for using the domestic products", the SEPI and the Minnesota solar PV rebate "alter the
conditions of competition in the market in favour of the domestic products and to the obvious
detriment of the imported products".690
7.330. The United States responds that insofar as India has failed to show that the two programs
affect the sale, purchase, transportation, distribution or us e of the relevan t products, India has
necessarily failed to show that they accord less favourable treatment to imported products.691
7.331. As explained above692, the SEPI and the Minnesota solar PV rebate provide incentives and
rebates for the use of solar PV modules made in Minnesota.
7.332. We find convincing India's submission that the SEPI and the Minnesota solar PV rebate
accord less favourable treatment to relevant non-local products, including imported products.
Looking at the text, design, and structure of the two programs, we note that both offer an advantage
to owners of grid -connected solar PV modules (SEPI), and owners of qualified properties (for the
solar PV rebate) provided that they install solar PV modules made in Minnesota. The definitions of
"made in Minnesota (for SEPI)693 and "manufactured in Minnesota" (for the Minnesota solar PV
rebate)694 leave no doubt that imported solar PV modules cannot qualify for the incentives and
rebates at issue. Thus, we consider that the "fundamental thrust and effect"695 of the two programs
at issue is to promote the use of solar PV modules made in Minnesota.
7.333. In our view, therefore, India has made a prima facie case that the SEPI and the Minnesota
solar PV rebate modify the conditions of competition by creating a financial incentive favo uring
solar PV modules made in Minnesota.696 We note in this connection that past cases have consistently
found that the provision of incentives or advantages for the use of domestic over imported products
accord less favourable treatment to such imported products.697
7.334. As noted, the United States' pri mary response to India's claim is that, because India has
failed to show that Measure 10 affects the sale, purchase, transportation or use of the relevant
products, it follows that it has also failed to show that the measure accords treatment less favourable
to imported than to domestic products.698
7.335. We have already found that, because it provides an advantage for the use of domestic
products but not for the use of imported products, and thus impacts the conditions of competition
between imported and domestic products, Measure 10 does affect the sale, purchase, transportation,
distribution or use of the relevant products. 699 Moreover, as explained above, in our view the
question whether a measure accords treatment less favourable to imported products is related to,
but distinct from, the question whether it affects the sale, purchase, transport, distribution or use of
products. It follows that the United States' argument in this regard is not capable of rebutting India's
prima facie case that Measure 10 accords less favourable treatment to imported than to domestic
products.
7.336. Finally, we recall the United States' argument, in the context of whether the SEPI affects the
sale, purchase, transportation, distribution or use of products, that evidence on the record show s

690 India's first written submission, para. 1013.
691 United States' first written submission, para. 129.
692 See para. 2.55 above.
693 See para. 2.58 above.
694 See para. 2.67 above.
695 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 215.
696 The fact that domestic but non-local like products (i.e. like products from areas of the United States
other than Minnesota) are accorded the same treatment as imported products under the measure at issue does
not affect this conclusion. See Panel Report, Canada – Wheat Exports and Grain Imports, para. 6.294
(fn omitted, referring to Panel Report, US – Malt Beverages, paras. 5.17 and 5.33).
697 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 220; Panel Reports, India – Solar Cells,
EC), para. 8.156.
698 United States' first written submission, para. 129.
699 See para. 7.239 above.

that only a "negligible amount" of solar installations have received incentives under the SEPI during
2016.700 We discussed this evidence above.701 In the present context, and insofar as this argument
might be relied upon to argue that the measure does not accord less favourable treatment, it suffices
to recall that past cases have consistently held that neither evidence of actual market effects nor
proof that "the sourcing decisions of private firms have actually been impacted by" the measure at
issue is necessary to make out a case of less favourable treatment. 702 The implications for
competitive conditions of the SEPI are explicit from the text, design, and structure of the relevant
provisions. To use the words of the panel in US – FSC (Article 21.5 – EC), "[t]he less favourable
treatment we have found arises by necessary implication from the words actually used in the text"
of the two programs at issue.703 Accordingly, we do not consider that evidence showing that the
SEPI granted incentives to a "negligible amount" of solar installations during 2016 is sufficient to
rebut India's prima facie case that the SEPI treats non-local products, including imported products,
less favourably than like local products.
7.337. We therefore find that India has shown prima facie, and the United States has not rebutted,
that the SEPI and the Minnesota solar PV rebate modify the conditions of competition to the
detriment of imported solar PV modules, and therefore accords less favourable treatment to such
products within the meaning of Article III:4 of the GATT 1994.
7.3.4.10 Conclusion on less favourable treatment
7.338. In conclusion, we find that India has shown prima facie , and the United States has not
rebutted, that each of the measures at issue accords to imported products treatment less favourable
than that accorded to like domestic products within the meaning of Article III:4 of the GATT 1994.
7.3.5 Conclusion on India's claims under Article III:4 of the GATT 1994
7.339. We have found that the relevant domestic and imported products under each measure at
issue are like products within the meaning of Article III:4 of the GATT 1994. We have also found
that each measure at issue is a "law", "regulation" or "requirement" "affecting the[] internal sale,
offering for sale, purchase, transportation, distribution or use" of the relevant products within the
meaning of Article III:4 of the GATT 1994. Finally, we have concluded that each measure at issue
accords to relevant imported products 704 treatment less favourable than that accorded to like
domestic products within the meaning of Article III:4 of the GATT 1994.
7.340. We therefore conclude that India has established, and the United States has not rebutted,
that each measure at issue fulfils all t hree elements of the legal test under Article III:4 of the
GATT 1994 and is therefore inconsistent with Article III:4 of the GATT 1994.
7.341. Having found that the measures at issue are inconsistent with Article III:4 of the GATT 1994,
we turn to India's other claims in this dispute. As noted, India challenges the measures at issue
under Articles 2.1 and 2.2 of the TRIM s Agreement, Articles 3.1(b), 3.2 and 25 of the
SCM Agreement, and Article XXIII:1(a) of the GATT 1994, and we address these claims in this order.
7.4 India's claims under the TRIMs and SCM Agreements
7.342. We recall that, for India, "[its] claims under the TRIMs Agreement and the SCM Agreement
clearly emanate from the violation of Article III:4 of the GATT 1994"705, as "the core of [its] claims
lie in the discriminatory treatment between the imported products and 'like' products of domestic
origin".706 We also recall that, according to the Appellate Body, some of the key provisions invoked

700 United States' first written submission, para. 129.
701 See paras. 7.237 - 7.238 above.
702 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
703 Panel Report, US – FSC (Article 21.5 – EC), para. 8.159.
704 Although we have found that India has not made a prima facie case that the Montana tax incentive
accords less favourable treatment to imported ethanol (i.e. the final product), this does not affect our overall
conclusion that, because Measure 4 accords less favourable treatment to imported ethanol ingredients, it is
inconsistent with Article III:4 of the GATT 1994.
705 India's opening statement at the first meeting of the Panel, para. 11.
706 India's opening statement at the first meeting of the Panel, para. 11 (emphasis original).

by India in the present dispute overlap as regards discriminatory cond uct involving local content
requirements:707
Both the national treatment obligations in Article III:4 of the GATT 1994 and the
TRIMs Agreement, and the disciplines in Article 3.1(b) of the SCM Agreement,
are cumulative obligations. Article III:4 of the GATT 1994 and the TRIMs Agreement,
as well as Article 3.1(b) of the SCM Agreement, prohibit the use of local content
requirements in certain circumstances. These provisions address discriminatory conduct
…708
7.343. This raises the question whether a positive resolution of this dispute requires us to assess
India's additional claims under the TRIMs Agreement and the SCM Agreement, or whether – in light
of our findings under Article III:4 of the GATT 1994 – we should exercise judicial economy on India's
claims under the TRIMs and SCM Agreements.
7.344. India has requested us to address each of its claims under the GATT 1994,
the TRIMs Agreement and the SCM Agreement.709 The United States, on the contrary, has argued
that "the Panel may consider the reasons behind this case in decid ing on the extent to which the
Panel exercises its discretion to use judicial economy." 710 Recalling that rulings made by the DSB
"shall be aimed at achieving a satisfactory settlement of the matter"711, the United States adds that
"the Panel should consider the extent to which it needs to reach India's claims that raise the same
basic issues under three different WTO agreements".712
7.345. According to the Appellate Body, "[j]udicial economy refers to the discretion of a panel to
address only those claims that must be addressed 'in order to resolve the matter in issue in the
dispute'", and "th[is] discretion of a panel … is consistent with the aim of the WTO dispute settlement
mechanism, as articulated in Article 3.7 of the DSU, to 'secure a positive solution to a dispute'".713
7.346. Bearing these considerations in mind, we turn to examine the appropriateness of exercising
judicial economy in respect of India's claims under the TRIMs and the SCM Agreements, respectively.

707 The United States does not contest this, whereas India explicitly argues that the core of its claims lies
in the "discriminatory treatment" between the products imported to the US and those like products of domestic
origin and explains that all its claims emanate from the violation of Article III:4 of the GATT 1994. India' response
to Panel question No. 54.
708 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program, para. 5.5.
See also Panel Reports, Brazil – Taxation, para. 7.48.
709 India's first written submission, paras. 1175-1178. See also India's remarks at the first meeting of the
Panel, part of the official record (minute 15:19 of the meeting on 10 October 2018), and second written
submission, para. 99 and fn 76.
710 United States' opening statement at the second meeting of the Panel, para. 5.
711 United States' opening statement at the second meeting of the Panel, para. 8, quoting Article 3.4 of
the DSU.
712 United States' opening statement at the second meeting of the Panel, para. 8. In particular, the
United States has suggested that "if the Panel finds that India has established that a measure is inconsistent
with Article III:4 of the GATT 1994, the Panel could decline to make a separate finding under the TRIMs
Agreement". See United States' response to Panel question No. 53.
713 Appellate Body Report, EU – PET (Pakistan), para. 5.20 (fns omitted, referring to Appellate Body
Reports, US – Wool Shirts and Blouses, p. 19; India – Patents (US), para. 87; Brazil – Retreaded Tyres,
para. 257; Canada – Wheat Exports and Grain Imports, para. 133; US - Lead and Bismuth II, paras. 71 and
73; Argentina – Footwear (EC), para. 145; Australia – Salmon, para. 223; and Japan – Agricultural Products II,
para. 111).

7.4.1 India's claims under the TRIMs Agreement
7.347. India's claims under the TRIM s Agreement relate to Articles 2.1714 and 2.2 715 of
that Agreement, and paragraph 1(a) of the Illustrative List 716 contained in the Agreement's Annex
and referenced in its Article 2.2.
7.348. We begin by observing that, according to the recent pan el reports in Brazil – Taxation,
"[a]lthough there is some overlap between these … provisions, … there are also differences in their
respective scope of application" 717: "[i]n particular, the scope of Article III:4 of the GATT 1994 is
broader than that of Article 2.1 of the TRIM s Agreement …, since it refers generally to 'laws,
regulations and requirements'", whereas "[a] measure is only covered by Article 2.1 of the
TRIMs Agreement if it is a TRIM within the meaning of that agreement".718 This suggests to us that,
in principle, compliance with a finding of inconsistency with Article III:4 of the GATT 1994 would
bring about compliance with the narrower obligations of the TRIMs Agreement, and therefore where
a panel has already found a violation of Article III:4 of the GATT 1994 it may not be necessary to
make additional findings on the same measure(s) under the TRIMs Agreement.
7.349. Indeed, in several past cases, panels have decided to exercise judicial economy on claims
under the TRIM s Agreement after having found vi olations under the GATT 1994, in particular its
Article III:4. Thus, in Turkey – Rice, the panel recognized that there is a close link between Article 2
of the TRIMs Agreement and Article III:4 of the GATT 1994. It explained that "[b]oth provisions of
the TRIM s Agreement, Article 2.1 and paragraph 1(a) of the Annex, refer to the obligation of
Members not to apply trade -related investment measures in a manner that is inconsistent with
specific rules contained in the GATT 1994, notably in Article III and in Article XI."719 The panel
concluded that "if [it] found that the domestic purchase requirement is inconsistent with Article III:4
of the GATT 1994, [it] need not make a finding under the TRIMs Agreement".720
7.350. The panel in India – Autos followed a similar approach. It stated that, having found that the
measures at issue were inconsistent with Article III:4 of the GATT 1994, "it [wa]s not necessary to
consider separately whether they are also inconsistent with the provisions of the
TRIMs Agreement".721 The panel added that:
It seems that an examination of the GATT provisions in this case would be likely to
make it unnecessary to address the TRIM s claims, but not vice-versa. If a violation of
the GATT claims was found, it would be justifiable to refrain from examining the TRIMs
claims under the principle of judicial economy.722

714 According to Article 2.1 of the TRIMs Agreement, "[w]ithout prejudice to other rights and obligations
under GATT 1994, no Member shall apply any TRIM that is inconsistent with the provisions of Article III or
Article XI of GATT 1994."
715 According to Article 2.2 of the TRIMs Agreement, "[a]n illustrative list of TRIMs that are inconsistent
with the obligation of national treatment provided for in paragraph 4 of Article III of GATT 1994 and the
obligation of general elimination of quantitative restrictions provided for in paragraph 1 of Article XI of
GATT 1994 is contained in the Annex to this Agreement".
716 According to paragraph 1(a) of the Illustrative List contained in the Annex to the TRIMs Agreement
and referenced in its Article 2.2:

"1. TRIMs that are inconsistent with the obligation of national treatment provided for in paragraph 4 of
Article III of GATT 1994 include those which are mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is necessary to obtain an advantage, and which require:
(a) the purchase or use by an enterprise of products of domestic origin or from any domestic
source, whether specified in terms of particular products, in terms of volume or value of products,
or in terms of a proportion of volume or value of its local production …".
718 Panel Reports, Brazil – Taxation, para. 7.47 (fn omitted, referring to Panel Report, Indonesia –
Autos, para. 14.82).

7.351. Likewise, the panel in China – Auto Parts decided to exercise judicial economy with respect
to claims made under the TRIM s Agreement after having found a violation of Article III:4 of the
GATT 1994. The panel explained that its findings under the GATT 1994 were "sufficient for the
resolution of the dispute" because "bringing the measures into conformity with China's obligations
pursuant to [its] findings under Article III:4 of the GATT 1994 would also remove any inconsistency
of these measures with the TRIMs Agreement".723
7.352. The panel in EC – Bananas III decided to exercise judicial economy for similar reasons, by
holding that it did not:
[C]onsider it necessary to make a specific ruling under the TRIM s Agreement with
respect to the [measures at issue]. On the one hand, a finding that the measure in
question would not be considered a trade-related investment measure for the purposes
of the TRIMs Agreement would not affect o ur findings in respect of Article III:4 since
the scope of that provision is not limited to TRIMs and, on the other hand, steps taken
to bring [the measures at issue] into conformity with Article III:4 would also eliminate
the alleged non-conformity with obligations under the TRIMs Agreement.724
7.353. Like the above panels, we do not find it necessary to address India's claims under the
TRIMs Agreement in order to provide a positive solution to this dispute. Bearing in mind that Article 2
of the TRIM s Agreement is only concerned with TRIMs that are inconsistent with Article III
(or Article XI) of the GATT 1994725, and also in light of the relatively consistent practice of past
panels when faced with claims under Article III:4 of the GATT 1994 and Article 2 of the
TRIMs Agreement, we consider that steps taken by the United States to bring the measures at issue
into compliance with Article III:4 of the GATT 1994 will also eliminate the alleged non-conformity of
the same measures with obligations under the TRIMs Agreement.
7.354. We therefore exercise judicial economy with regard to India's claims under Articles 2.1 and
2.2 of the TRIMs Agreement.
7.4.2 India's claims under the SCM Agreement
7.355. As noted, India requests that the Panel find that all of the measures at issue are inconsistent
with Articles 3.1(b), 3.2, and 25 of the SCM Agreement.726
7.4.2.1 Articles 3.1(b) and 3.2 of the SCM Agreement
7.356. In the above -mentioned Brazil – Taxation dispute, the pane l explained that the scope of
Article 3.1(b) of the SCM Agreement is also narrower than the scope of Article III:4 of the
GATT 1994. In particular, "[a]lthough there is some overlap between these … provisions, … there
are also differences in their respecti ve scope of application"727 insofar as "the scope of Article III:4
of the GATT 1994 is broader than that of … Article 3.1(b) of the SCM Agreement, since [Article III:4
of the GATT 1994] refers generally to 'laws, regulations and requirements'", whereas "a measure is
only covered by Article 3.1(b) of the SCM Agreement if it is a subsidy within the meaning of that
agreement".728 On appeal, the Appellate Body confirmed that establishing the existence of a

723 Panel Reports, China – Auto Parts, para. 7.368.
724 Panel Reports, EC – Bananas III, para. 7.186.
725 Article 2.1 of the TRIMs Agreement.
726 India's first written submission, paras. 1175-1176.
728 Panel Reports, Brazil – Taxation, para. 7.47 (fn omitted). Likewise, the panel in Canada – Autos
"recognize[d] that Article 3.1(b) in some sense has its roots in Article III:4 of GATT and in certain
interpretations of that provision, which relates to non-discrimination. We do not consider however that
Article 3.1(b) ipso facto has the same scope as Article III:4. To the contrary, while Article III:4 of GATT speaks
of 'treatment no less favourable' and of requirements 'affecting' internal sale, Article 3.1(b) speaks of subsidies
'contingent upon the use of domestic over imported goods'." Panel Report, Canada – Autos, para. 10.215.

prohibited subsidy under Articles 3.1(b)729 and 3.2730 of the SCM Agreement requires meeting a
"more demanding standard than demonstrating that an incentive to use domestic goods exists under
Article III:4 of the GATT 1994".731
7.357. In the context of the dispute before us, this suggests that, by bringing the challenged
measures into conformity with Article III:4 of the GATT 1994, the United States would also eliminate
the alleged non-conformity of the same measures with the narrower obligations of Article 3 of the
SCM Agreement, and therefore where a panel has already found a violation of Article III:4 of the
GATT 1994 it may not be necessary to make additional findings on the same measure(s) under
Article 3 of the SCM Agreement.
7.358. We also recall that in China – Auto Parts, after having found a violation under Article III of
the GATT 1994, the panel exercised judicial economy on claims under both the TRIM s Agreement
and the SCM Agreement. The panel held that, regarding the local content requirements challe nged
in that dispute, addressing the complainant's SCM claims would not be necessary to secure a positive
solution of the dispute, because "bringing the measures into conformity with China's obligations
pursuant to [the] findings under Articles III:2 and III:4 of the GATT 1994 also would remove any
inconsistency of those measures with Articles 3.1(b) and 3.2 of the SCM Agreement".732 On appeal,
the Appellate Body noted – without criticism – that "[t]he [p]anel exercised judicial economy with
respect to the cl aims under the TRIM s Agreement … and Articles 3.1(b) and 3.2 of the
SCM Agreement".733
7.359. Likewise, in Canada – Autos the Appellate Body validated the panel's exercise of judicial
economy on claims under Article 3 of the SCM Agreement following findings of violation under
Article III:4 of the GATT 1994. On appeal, the European Communities argued that the panel in that
dispute had committed legal error by failing to address its claim under Article 3.1(a) of the
SCM Agreement.734 The Appellate Body disagreed. Although it criticised the panel for failing to make
explicit its decision to exercise judicial economy 735, the Appellate Body held that th e panel was
entitled not to address the claim under Article 3.1(a) because, having already found that the aspects
of the measure in question were inconsistent with Article III:4 of the GATT 1994 (and Article XVII
of the GATS), findings under Article 3.1(a) of the SCM Agreement were not necessary to secure a
positive solution to the dispute.736
7.360. We are cognizant that, in EC – Export Subsidies on Sugar , the Appellate Body reversed a
panel's decision to exercise judicial economy on claims under Article 3 of the SCM Agreement. In that
case, the Appellate Body concluded that the panel's exercise of judicial economy in regard to the
complainants' claims under Article 3 of the SCM Agreement following findings of violation under
Articles 9 and 10 of the Agreement on Ag riculture constituted legal error. 737 The Appellate Body
noted738 that the SCM Agreement contains "special rules and additional procedures on dispute
settlement" in respect of subsidies prohibited under Article 3, in particular, Article 4.7 of the

729 According to Article 3.1(b) of the SCM Agreement:

"1. Except as provided in the Agreement on Agriculture, the following subsidies, within the meaning
of Article 1, shall be prohibited:
…
(b) subsidies contingent, whether solely or as one of several other conditions, upon the use
of domestic over imported goods."
730 According to Article 3.2 of the SCM Agreement, "[a] Member shall neither grant nor maintain
subsidies referred to in paragraph 1".
731 Appellate Body Reports, Brazil – Taxation, para. 5.254.
732 Panel Reports, China – Auto Parts, para. 7.635.
733 Appellate Body Reports, China – Auto Parts, para. 7.
734 Appellate Body Report, Canada – Autos, para. 110.
735 Appellate Body Report, Canada – Autos, para. 117.
736 Appellate Body Report, Canada – Autos, para. 116.
737 Appellate Body Report, EC – Export Subsidies on Sugar, para. 335.
738 Appellate Body Report, EC – Export Subsidies on Sugar, para. 335.

SCM Agreement.739 According to the Appellate Body, by declining to rule on the claim under Article 3
of the SCM Agreement, the panel "precluded the possibility of a remedy being made available to the
Complaining Parties, pursuant to Article 4.7 of the SCM Agreement, in the event of the [p]anel
finding in favour of the Complaining Parties with respect to their claims under Article 3".740 In the
Appellate Body's view, by precluding itself from making a recommendation under Article 4.7 of the
SCM Agreement, the panel had failed to make "such … findings as [would] assist the DSB in making
the recommendations … provided for in the c overed agreements", as required by Article 11 of the
DSU.741
7.361. We are mindful of our obligation to make an objective assessment of the matter before us,
in line with Article 11 of the DSU, including an assessment of the appropriateness of exercising
judicial economy on India's claims under Article 3 of the SCM Agreement. That said, in our view, the
Appellate Body's analysis in EC – Export Subsidies on Sugar is not directly applicable to the dispute
before us.
7.362. In EC – Export Subsidies on Sugar, the Appellate Body addressed the relationship between
agreements and provisions that are different in important respects from those invoked by India in
the present dispute. The provisions at issue in EC – Export Subsidies on Sugar , Articles 3.3 and 8
(through Articles 9.1(a) and 9.1(c)) of the Agreement on Agriculture and Article 3 of the
SCM Agreement, all address subsidies. The existence of a specific relationship of these provisions is
recognized in Article 3 of the SCM Agreement, which explicitly refers to the Agreement on
Agriculture.742
7.363. Moreover, the panel 's decision in EC – Export Subsidies on Sugar to exercise judicial
economy with regard to the complainants' claim under Article 3 of the SCM Agreement was
introduced by reference to its earlier finding that "the EC su gar regime [was] inconsistent with the
European Community's export subsidy obligations under Articles 3.3 and 8 (through Article 9.1(a)
and 9.1(c)) of the Agreement on Agriculture".743 We also recall that in EC – Export Subsidies on
Sugar, before exercising judicial economy, the panel had already found that the measures at issue
were subsidies subject to prohibition under Article 8 of the Agreement on Agriculture, but had then
declined to make findings under the S CM Agreement, or explore the possible applicability of
Article 4.7 thereof, which provides for panels to make a special recommendation where they have
found a challenged measure to be prohibited subsidy.744
7.364. In light of this, we do not read the Appellate Body's report in EC – Export Subsidies on Sugar
as articulating a general principle that a panel may never exercise judicial economy on claims under
the SCM Agreement. Rather, as we understand it, where a measure is found to be a subsidy
prohibited under the Agreement on Agriculture745, a panel should consider the implications of its
subsidy-related findings under the Agreement on Agriculture for the consistency of those measures
with the provisions of the SCM Agreement dealing with prohibited subsidies.

739 According to Article 4.7 of the SCM Agreement, "[i]f the measure in question is found to be a
prohibited subsidy, the panel shall recommend that the subsidizing Member withdraw the subsidy without
delay. In this regard, the panel shall specify in its recommendation the time-period within which the measure
must be withdrawn".
740 Appellate Body Report, EC – Export Subsidies on Sugar, para. 335.
741 Appellate Body Report, EC – Export Subsidies on Sugar, para. 335.
742 The chapeau of Article 3 of the SCM Agreement is introduced with the phrase "Except as provided in
the Agreement on Agriculture …". See also Article 13(c)(ii) of the Agreement on Agriculture and Appellate Body
Report, Canada – Dairy (Article 21.5 – New Zealand and US), paras. 123-124.
743 Panel Report, EC – Export Subsidies on Sugar, para. 7.381.
744 All three complainants in that dispute (i.e. Australia, Brazil, and Thailand) explicitly requested that
the Panel recommend to the DSB that the European Communities bring its measures at issue into conformity
with its WTO obligations in accordance with both Article 19.1 of the DSU and Article 4.7 of the SCM Agreement.
See Panel Report, EC – Export Subsidies on Sugar, paras. 4.3, 4.5, and 4.8.
745 According to the Appellate Body, "[i]t is clear from the plain wording of Article 8 [of the Agreement
on Agriculture] that Members are prohibited from providing export subsidies otherwise than in conformity with
the Agreement on Agriculture and the commitments specified in their Schedules". Appellate Body Report,
EC – Export Subsidies on Sugar, para. 216 (emphasis added).

7.365. The pr esent dispute is , however, different from EC – Export Subsidies on Sugar in key
respects. As noted, EC – Export Subsidies on Sugar addressed the issue of judicial economy in regard
to provisions different from the ones invoked by India before us. Important ly, Article III:4 of the
GATT 1994 and Articles 2.1 and 2.2 of the TRIMs Agreement do not relate to subsidies. Our finding
that the measures at issue violate Article III:4 of the GATT 1994 neither entails nor implies that the
measures at issue are or are not subsidies.746
7.366. Instead of EC – Export Subsidies on Sugar , we find the more recent China – Auto Parts
dispute to provide more relevant and compelling guidance on the issue of judicial economy before
us. That case dealt with precisely the same main provisions as the ones invoked by India before us.
The circumstances of China – Auto Parts were also closer to the present dispute, in that the panel
in that case decided to exercise judicial economy in respect of local content requirements that it had
already found to be inconsistent with Article III of the GATT 1994. It was in the specific context of
those local content requirements and legal provisions invoked that the panel in China – Auto Parts
concluded that addressing the United States' SCM claims would not be necessary to secure a positive
resolution of the dispute as "bringing the measures into conformity with China's obligations pursuant
to [the] findings under Articles III:2 and III:4 of the GATT 1994 also would remove any inconsistency
of those measures with Articles 3.1(b) and 3.2 of the SCM Agreement."747 As summarized above,
on appeal the Appellate Body explicitly noted that "[t]he [p]anel exercised judicial economy with
respect to the claims under the TRIM s Agreement … and Articles 3.1(b) and 3.2 of the
SCM Agreement".748 In doing so, the Appellate Body did not make any reference to Article 4.7 of the
SCM Agreement or its earlier report in EC – Export Subsidies on Sugar, let alone criticise the panel
for having exercised judicial economy with regard to Article 3 of SCM Agreement following a finding
of violation under Article III:4 of the GATT 1994.
7.367. Given the similarity of the matter in China – Auto Parts, i.e. local content requirements
challenged under the non-discrimination provisions of Article III of the GATT, the TRIMs Agreement,
and Articles 3.1(b) and 3.2 of the SCM Agreement, and the matter before us in this dispute,
we consider that the United States bringing its measures at issue into conformity with its obligations
pursuant to Article III:4 of the GATT 1994 would "remove any inconsistency of those measures with
Articles 3.1(b) and 3.2 of the SCM Agreement".749 As discussed above, India has argued, and we
have found, that the measures at issue violate Article III:4 of the GATT 1994 because they condition
an advantage on the use of domestic over imported products. It seems to us that, if the United States
removed such conditionality in order to bring itself into compliance with Article III:4 of the
GATT 1994, it would also eliminate the alleged non -conformity of the same conditionality with its
obligations under Article 3 of the SCM Agreement, thus removing the basis or need for any finding
that the measures are prohibited subsidies within the meaning of Article 3 of the SCM Agreement.
7.368. For these reasons, we exercise judicial economy on, and refrain from addressing, India's
claims under Articles 3.1(b) and 3.2 of the SCM Agreement.
7.4.2.2 Article 25 of the SCM Agreement
7.369. India also challenges the measures at issue under Article 25 of the SCM Agreement.
In particular, according to India, the United States has acted in consistently with Article 25 of the
SCM Agreement, specifically paragraphs 2 and 3750, by failing to notify the measures at issue to the
SCM Committee.751
7.370. The notification obligation under Article 25.2 of the SCM Agreement covers "any subsidy as
defined in paragraph 1 of Article 1, which is specific within the meaning of Article 2, granted or

746 As the panel in Canada – Autos stated, "while Article III:4 of [the] GATT [1994] speaks of 'treatment
no less favourable' and of requirements 'affecting' internal sale, Article 3.1(b) [of the SCM Agreement] speaks
of subsidies 'contingent upon the use of domestic over imported goods'". Panel Report, Canada – Autos,
para. 10.215.
747 Panel Reports, China – Auto Parts, para. 7.635.
748 Appellate Body Reports, China – Auto Parts, para. 7.
749 Panel Reports, China – Auto Parts, para. 7.635.
750 Article 25.2 of the SCM Agreement provides that "Members shall notify any subsidy as defined in
paragraph 1 of Article 1, which is specific within the meaning of Article 2, granted or maintained within their
territories", whereas Article 25.3 prescribes the content of such notifications.
751 India's first written submission, para. 30.

maintained within their territories". An examination of a claim under Article 25.2 of the
SCM Agreement thus presupposes a finding, inter alia, that the measure at issue is a subsidy as
defined in Article 1.1, and is specific within the meaning of Article 2 of the SCM Agreement. India has
not made any independent arguments regarding specificity; India merely argues that, pursuant to
Article 2.3 SCM Agreement752, the measures at issue are specific subsidies as a result of bein g
prohibited under Article 3.1 of the SCM Agreement.753
7.371. Thus, India's claim under Article 25 of the SCM Agreement is directly linked to, and depends
on, the outcome of its claims under Article 3.1(b) of the SCM Agreement. As we have chosen to
exercise judicial economy on India's claims under Article 3.1(b) of the SCM Agreement, there is no
basis for us to rule on India's claim under Article 25 of the SCM Agreement. Having decided that it
is not necessary for us to determine whether the measures at issue are subsidies within the meaning
of the SCM Agreement, in particular Article 3.1(b), it follows a fortiori that it is not necessary for us
to assess whether the measures should have been notified as subsidies under Article 25 of the
SCM Agreement in order to secure a positive resolution of this dispute.
7.372. Accordingly, we also exercise judicial economy on India's claims under Article 25 of the
SCM Agreement.
7.5 India's claim under Article XXIII:1(a) of the GATT 1994
7.373. India has requested us to find that "the measures at issue, individually and/or collectively,
have nullified and/or impaired the benefits accruing to India under Article XXIII:1(a) of the
GATT [1994]".754
7.374. We recall that, pursuant to Article 3.8 of the DSU, in cases where there is an infringement
of the obligations assumed under a covered agreement, the action is considered prima facie to
constitute a case of nullification or impairment. We therefore conclude that, to the extent that the
measures at issue are inconsistent w ith Article III:4 of the GATT 1994, they have nullified or
impaired benefits accruing to India under that agreement.
8 CONCLUSIONS AND RECOMMENDATIONS
8.1. As regards our terms of reference, we have found that:
a) for the reasons set forth in our preliminary ruling755, the Los Angeles Manufacturing Credit
(LAMC) Adder (Measure 3), and the Massachusetts Manufacturer Adder (Measure 11) fall
outside o ur terms of reference, whereas the Minnesota solar thermal rebate and the
Minnesota solar photovoltaic rebate under Measure 10 fall within our terms of reference;
and
b) for the reasons set forth in section 7.1.1.2 of this Report, the "made in Washington" bonus
in Section 82.16.165 of the Revised Code of Washington under Measure 1 does not fall
within our terms of reference
8.2. In light of their amendment following the establishment of the Panel, for the reasons set forth
in section 7.1.1 of this Report:
a) we have decided to make findings, and, if necessary, recommendations on Measures 1
and 8 as amended; and
b) we have decided to make findings, and, i f necessary, recommendations on Measure 2 as
implemented through both the 2016 and 2017 California Self -Generation Incentive
Program (SGIP) Handbooks.

752 According to Article 2.3 of the SCM Agreement, "[a]ny subsidy falling under the provisions of
Article 3 shall be deemed to be specific".
753 India's first written submission, paras. 118, 233, 321, 424, 523, 623, 730, 831, 934, 1037, 1075,
and 1167.
754 India's first written submission, para. 1177.
755 See Annex D-1 containing the preliminary ruling of the Panel.

8.3. In light of their repeal following the establishment of the Panel, for the reasons set forth in
section 7.1.2 of this Report, we have decided:
a) to make findings, and, if necessary, recommendations on the Minnesota s olar energy
production incentive (SEPI) program under Measure 10; and
b) not to make findings and recommendations on the Minnesota solar thermal rebate under
Measure 10.
8.4. For the reasons set forth in this Report, we conclude that the following measures are
inconsistent with the United States' obligations under Article III:4 of the GATT 1994:
a) the Washington State additional incentive ( Measure 1), as contained in
Sections 82.16.110 to 82.16.130 of the Revised Code of Washington, and Section 458-
20-273 of the Washington Administrative Code;
b) the California Manufacturer Adder ( Measure 2), as embodied in Section 379.6 of the
California Public Utilities Code, and implemented through the 2016 and 2017 SGIP
Handbooks;
c) the Montana tax incentive ( Measure 4), as embodied in Sections 15 -70-502, 15-70-503,
and 15-70-522 of the Montana Annotated Code , and Admini strative Rules of Montana,
Sections 18.15.701 – 18.15.703 and 18.15.710 – 18.15-712;
d) the Montana tax credit ( Measure 5), as embodied in Section 15-32-703 of the Montana
Annotated Code;
e) the Montana tax refund ( Measure 6), as embodied in Section 15-70-433 of the Montana
Annotated Code;
f) the Connecticut additional incentive (Measure 7), as embodied in Section 16-245ff of the
General Statutes of Connecticut, and Request for Qualification for Eligible Contractors and
Third Party PV System Owners;
g) the Michigan Equipment and Labour Multipliers ( Measure 8), as embodied in Public Act
No. 342;
h) the Delaware Equipment and Workforce Bonuses ( Measure 9), as embodied in
Sections 356(d) and (e) of the Renewable Energy Portfolio Standards Act , and Rules and
Procedures to Implement the Renewable Energy Portfolio Standard;
i) the Minnesota solar photovoltaic rebate under Measure 10, as embodied in
Section 116C.7791 of the 2016 Minnesota Statutes; and
j) the Minnesota solar energy production incentive (SEPI) under Measure 10, as embodied
in Sections 216C.411 – 216C.415 of the 2016 Minnesota Statutes.
8.5. For the reasons set forth in this Report, we conclude as follows:
a) With respect to India's claims under Articles 2.1 and 2.2 of the TRIM s Agreement, the
Panel exercises judicial economy for the reasons set forth in section 7.4.1 of this Report.
b) With respect to India's claims under Articles 3.1(b), 3.2, and 25 of the SCM Agreement,
the Panel exercises judicial economy for the reasons set forth in section 7.4.2 of this
Report.
8.6. In light of Article 3.8 of the DSU, the Panel concludes that, to the extent that the measures at
issue are inconsistent with Article III:4 of the GATT 1994, they have nullified or impaired benefits
accruing to India under that agreement within the meaning of Article XXIII:1(a) of the GATT 1994.

8.7. Pursuant to Article 19.1 of the DSU, we recommend that the DSB request the United States to
bring the following measures into conformity with its obligations under Article III:4 of the
GATT 1994:
a) the Washington State additional incentive ( Measure 1), as embodied in
Sections 82.16.110 to 82.16.130 of the Revised Code of Washington, and Section 458-
20-273 of the Washington Administrative Code;
b) the California Manufacturer Adder ( Measure 2), as embodied in Section 379.6 of the
California Public Utilities Code, and implemented through the 2017 SGIP Handbook; and
additionally, as implemented through the 2016 SGIP Handbook to the extent that the latter
continues to govern certain aspects of the California Manufacturer Adder for past
applicants;
c) the Montana tax incentive (Measure 4), as embodied in Sections 15 -70-502, 15-70-503,
and 15-70-522 of the Montana Annotated Code , and Administrative Rules of Montana,
Sections 18.15.701 – 18.15.703 and 18.15.710 – 18.15-712;
d) the Montana tax credit ( Measure 5), as embodied in Section 15-32-703 of the Montana
Annotated Code;
e) the Montana tax refund ( Measure 6), as embodied in Section 15-70-433 of the Montana
Annotated Code;
f) the Connecticut additional incentive (Measure 7), as embodied in Section 16-245ff of the
General Statutes of Connecticut, and Request for Qualification for Eligible Contractors and
Third Party PV System Owners;
g) the Michigan Equipment and Labour Multipliers ( Measure 8), as embodied in Public Act
No. 342;
h) the Delaware Equipment and Workforce Bonu ses ( Measure 9), as embodied in
Sections 356(d) and (e) of the Renewable Energy Portfolio Standards Act , and Rules and
Procedures to Implement the Renewable Energy Portfolio Standard;
i) the Minnesota solar photovoltaic rebate under Measure 10, as embodied i n
Section 116C.7791 of the 2016 Minnesota Statutes; and
j) the Minnesota solar energy production incentive (SEPI) program under Measure 10, as
embodied in Sections 216C.411 – 216C.415 of the 2016 Minnesota Statutes, to the extent
that incentive payments under this program continue following its repeal.