Invenergy Renewables LLC v. United States

• Citation: 450 F.Supp.3d 1347
• Decision Date: 27 May 2020
• Docket Number: Slip Op. 20-73,Court No. 19-00192
• Parties: INVENERGY RENEWABLES LLC, Plaintiff, and Solar Energy Industries Association, Clearway Energy Group LLC, EDF Renewables, Inc. and AES Distributed Energy, Inc., Plaintiff-Intervenors, v. UNITED STATES of America, Office of the United States Trade Representative, United States Trade Representative Robert E. Lighthizer, U.S. Customs and Border Protection, and Acting Commissioner of U.S. Customs and Border Protection Mark A. Morgan, Defendants, and Hanwha Q Cells USA, Inc. and Auxin Solar, Inc., Defendant-Intervenors.
• Court: U.S. Court of International Trade

450 F.Supp.3d 1347

INVENERGY RENEWABLES LLC, Plaintiff,andSolar Energy Industries Association, Clearway Energy Group LLC, EDF Renewables, Inc. and AES Distributed Energy, Inc., Plaintiff-Intervenors,

v. UNITED STATES of America, Office of the United States Trade Representative, United States Trade Representative Robert E. Lighthizer, U.S. Customs and Border Protection, and Acting Commissioner of U.S. Customs and Border Protection Mark A. Morgan, Defendants,andHanwha Q Cells USA, Inc. and Auxin Solar, Inc., Defendant-Intervenors.

Slip Op. 20-73

Court No. 19-00192

United States Court of International Trade.

May 27, 2020

Amanda Shafer Berman, John Brew, Kathryn L. Clune, Amanda Shafer Berman, and Larry Eisenstat, Crowell & Moring LLP, of Washington, DC and New York, NY, argued for plaintiff, Invenergy Renewables LLC and plaintiff-intervenors, Clearway Energy Group LLC and AES Distributed Energy, Inc. With them on the briefs was Frances Hadfield.

Matthew R. Nicely and Daniel M. Witkowski, Hughes Hubbard & Reed LLP, of Washington, DC, argued for plaintiff-intervenor, Solar Energy Industries Association. With them on the briefs were Dean A. Pinkert and Julia K. Eppard.

Kevin M. O'Brien and Christine M. Streatfeild, Baker & McKenzie LLP, of Washington, DC, argued for plaintiff-intervenor, EDF Renewables, Inc.

Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendants. With him on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Tara K. Hogan, Assistant Director.

John M. Gurley, Dianna Dimitriuc-Quaia, and Friederike S. Görgens, Arent Fox LLP, of Washington, DC, argued for defendant-intervenors, Hanwha Q CELLS USA, Inc. and Auxin Solar Inc.

OPINION

Katzmann, Judge:

In this hotly contested litigation arising from the solar industry, the court returns to its order preliminarily enjoining the United States and the Office of the United States Trade Representative ("USTR") from withdrawing its previously granted exclusion from safeguard duties on imported bifacial solar modules, duties which the President imposed by proclamation to protect domestic industry.¹ Prelim. Inj. Ord. and Op., Invenergy Renewables LLC v. United States, 43 CIT ––––, 422 F. Supp. 3d 1255 (2019), ECF No. 113 (" Invenergy I"); Ord. and Op. Denying Mot. to Show Cause, Invenergy Renewables LLC v. United States, 44 CIT ––––, 427 F. Supp. 3d 1402 (2020), ECF No. 149 (" Invenergy II" ). Plaintiff Invenergy Renewables LLC ("Invenergy"), a renewable energy company,² joined by Plaintiff-Intervenors Solar Energy Industries Association ("SEIA"), Clearway Energy Group LLP ("Clearway"), EDF Renewables, Inc. ("EDF-R"), and AES Distributed Energy, Inc. ("AES DE") (collectively, "Plaintiffs"), filed a motion for a preliminary injunction ("PI") to enjoin the United States, USTR, U.S. Trade Representative Robert E. Lighthizer, U.S. Customs and Border Protection ("CBP"), and CBP Acting Commissioner Mark A. Morgan (collectively, "the Government") from implementing the Withdrawal of Bifacial Solar Panels Exclusion to the Solar Products Safeguard Measure, 84 Fed. Reg. 54,244 –45 (USTR Oct. 9, 2019) ("October Withdrawal"). Invenergy's Mot. for Prelim. Inj., Nov. 1, 2019, ECF No. 49. Defendant-Intervenors Hanwha Q Cells USA, Inc. ("Hanwha Q Cells") and Auxin Solar Inc. ("Auxin Solar") (collectively, "Defendant-Intervenors") join the Government in this case. Hanwha Q Cells’ Mot. to Intervene as Def.-Inter., Nov. 4, 2019, ECF No. 50; Ord. Granting Mot., Nov. 4, 2019, ECF No. 54; Auxin Solar's Mot. to Intervene as Def.-Inter., Feb. 7, 2020, ECF No. 136; Ord. Granting Mot., Feb. 10, 2020, ECF No. 141. The court granted Plaintiffs’ motion for a PI on December 5, 2019, observing that "[t]he Government must follow its own laws and procedures when it acts." Invenergy I, 422 F. Supp. 3d at 1265.

Before the court now are four motions, two of which were filed in response to USTR's issuance of a new April 2020 determination to withdraw an exclusion for bifacial solar modules from safeguard duties. Determination on the Exclusion of Bifacial Solar Panels from the Safeguard Measure on Solar Products, 85 Fed. Reg. 21,497 –99 (USTR Apr. 17, 2020) ("April Withdrawal"). First, the Government moved for the court to dismiss the case on the grounds that Plaintiffs lacked standing and failed to join an indispensable party. Def.’s Mot. to Dismiss and Resp. to Invenergy's Mot. for a Prelim. Inj., Nov. 8, 2019, ECF No. 74 ("Def.’s Mot. to Dismiss"). The Government later moved for the court to vacate the October Withdrawal and dismiss the case as moot. Def.’s Resp. to Pls.’ Mot. to Show Cause and Def.’s Mot. to Vacate Withdrawal and Dismiss Case as Moot, Feb. 7, 2020, ECF No. 139 ("Def.’s Resp. to Pls.’ Mot. to Show Cause and Mot. to Vacate and Dismiss"). Next, the Government moved for the court to dissolve the PI because USTR "cured the sole reason for which the injunctive relief was granted." Def.’s Mot. to Dissolve Prelim. Inj. at 1, Apr. 16, 2020, ECF No. 156 ("Def.’s Mot. to Dissolve"). Shortly thereafter, Plaintiffs moved to supplement their complaints to include USTR's new decision, the April Withdrawal. Pls.’ Mots. for Leave to File Suppl. Compls., May 4, 2020, ECF Nos. 160–162 ("Pls.’ Mots. to Suppl."). The court now (1) denies the Government's Motion to Dismiss; (2) grants Plaintiffs’ Motions to Supplement; (3) denies the Government's Motion to Vacate and Dismiss; and (4) denies the Motion to Dissolve the PI. The court denies the Government's motions without prejudice.

BACKGROUND

The court presumes familiarity with its previous opinions -- (1) Invenergy I, supra, and (2) Invenergy II, supra, -- both of which provide additional information on the factual and legal background of this case. Information pertinent to this decision follows.

As the court has noted:

This case emerges from a debate within the American solar industry between entities that rely on the importation of bifacial solar panels and entities that produce predominately monofacial solar panels in the United States. Plaintiffs here, who include consumers, purchasers, and importers of utility-grade bifacial solar panels, argue that the importation of bifacial solar panels does not harm domestic producers because domestic producers do not produce utility-scale bifacial solar panels; they thus oppose safeguard duties that they contend increase the cost of these bifacial solar panels. Domestic producers, however, contend that solar project developers can use either monofacial or bifacial solar panels, and thus safeguard duties are necessary to protect domestic production of solar panels. Both sides contend that their position better supports expanding solar as a source of renewable energy in the United States.

Invenergy I, 422 F. Supp. 3d at 1264.

The statutory scheme for imposition of safeguard duties has been summarized by the court as follows:

Through Section 201, Congress provided a process by which the executive branch could implement temporary safeguard measures to protect a domestic industry from the harm associated with an increase in imports from foreign competitors. Trade Act of 1974 §§ 201–04, 19 U.S.C. §§ 2251 – 54 (2012). Section 201 dictates that, upon petitions from domestic entities or industries, the International Trade Commission ("ITC") may make an affirmative determination that serious injury or a threat of serious injury to that industry exists. 19 U.S.C. § 2252. The President may then authorize discretionary measures, known as "safeguards," to provide a domestic industry temporary relief from serious injury. 19 U.S.C. § 2253. The statute vests the President with decision making authority based on consideration of ten factors. 19 U.S.C. § 2253(a)(2). Safeguard measures have a maximum duration of four years, unless extended for another maximum of four years based upon a new determination by the ITC. 19 U.S.C. § 2253(e)(1). The statute also outlines certain limits on the President's ability to act under this statute, including to limit new actions after the termination of safeguard measures regarding certain articles. See 19 U.S.C. § 2253(e). Further, the safeguard statute mandates that the President "shall by regulation provide for the efficient and fair administration of all actions taken for the purpose of providing import relief." 19 U.S.C. § 2253(g)(1).

Invenergy I, 422 F. Supp. 3d at 1265–66 (footnote omitted).

Through Presidential Proclamation 9693 issued on January 23, 2018, the President imposed safeguard duties, designed to protect the domestic industry, on imported monofacial and bifacial solar panels, but delegated authority to USTR to exclude products from the duties. 83 Fed. Reg. 3,541 –51 ("Presidential Proclamation"). After a sixteen-month notice-and-comment process through which USTR considered requests for exclusions, USTR decided to exclude bifacial solar panels from safeguard duties. Exclusion of Particular Products From the Solar Products Safeguard Measure, 84 Fed. Reg. 27,684 –85 (USTR June 13, 2019) ("Exclusion"). Four months later, however, USTR published the October Withdrawal. The October Withdrawal explained that, "[s]ince publication of [the Exclusion ] notice, the U.S. Trade Representative has evaluated this exclusion further and, after consultation with the Secretaries of Commerce and Energy, determined it will undermine the objectives of the safeguard measure." October Withdrawal at 54,244. Absent court action, therefore, the October Withdrawal would have reinstituted safeguard duties on certain bifacial solar panels.

Plaintiff Invenergy initiated this case in response to the October Withdrawal. Summons, Oct. 21, 2019, ECF No. 1; Invenergy's Compl., Oct. 21, 2019, ECF No. 13. The Government subsequently moved for, and the court allowed, USTR to delay the effective date of the October Withdrawal to November 8, 2019. Def.’s Mot. to Stay Effective Date of...