Invenergy Renewables LLC v. United States

• Decision Date: 14 February 2020
• Docket Number: Court No. 19-00192,Slip Op. 20-19
• Citation: 427 F.Supp.3d 1402
• 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, Defendant-Intervenors.
• Court: U.S. Court of International Trade

427 F.Supp.3d 1402

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, Defendant-Intervenors.

Slip Op. 20-19

Court No. 19-00192

United States Court of International Trade.

Dated: February 14, 2020

John Brew and Larry Eisenstat, Crowell & Moring LLP, of Washington, DC, argued for plaintiff, Invenergy Renewables LLC and plaintiff-intervenors, Clearway Energy Group LLC and AES Distributed Energy, Inc. With them on the brief were Kathryn L. Clune, Robert LaFrankie, and Amanda Shafer Berman.

Matthew R. Nicely, Hughes Hubbard & Reed LLP, of Washington, DC, argued for plaintiff-intervenor, Solar Energy Industries Association.

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, and Friederike S. Görgens, Arent Fox LLP, of Washington, DC, argued for defendant-intervenors. With them on the brief was Diana Dimitriuc Quaia.

OPINION

Katzmann, Judge

In this sequel to its prior order and accompanying opinion, Prelim. Inj. Order and Op., Invenergy Renewables LLC v. United States, 43 CIT ––––, ––––, Slip Op. No. 19-00153, 422 F.Supp.3d 1255, ––––, 2019 WL 6681877 (Dec. 5, 2019), ECF No. 113 (" PI"), the court now returns to a challenge to an agency action taken by the Office of the United States Trade Representative ("USTR") regarding the exclusion of safeguard duties on bifacial solar panels. Plaintiff Invenergy Renewables LLC ("Invenergy"), 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 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) available at https://www.federalregister.gov/documents/2019/10/09/2019-22074/withdrawal-of-bifacial-solar-panels-exclusion-to-the-solar-products-safeguard-measure ("Withdrawal"). Invenergy's Mot. for Prelim. Inj., Nov. 1, 2019, ECF No. 49. The court granted the motion on December 5, 2019, observing in its prior opinion that "[t]he Government must follow its own laws and procedures when it acts." PI at 4, ––––. Before the court now is Plaintiffs Invenergy, Clearway, and AES DE's Motion to Show Cause as to Why the Court Should Not Enforce the Preliminary Injunction, Jan. 30, 2020, ECF No. 132 ("Motion"), alleging that the Government's publication of Procedures to Consider Retention or Withdrawal of the Exclusion of Bifacial Solar Panels From the Safeguard Measure on Solar Products, 85 Fed. Reg. 4,756 –58 (USTR Jan. 27, 2020) available at https://www.federalregister.gov/documents/2020/01/27/2020-01260/procedures-to-consider-retention-or-withdrawal-of-the-exclusion-of-bifacial-solar-panels-from-the ("Notice"), violates the court's PI. For the reasons discussed below, the court denies Plaintiffs' Motion.

BACKGROUND

The court presumes familiarity with its opinion accompanying the preliminary injunction order,¹ and now only briefly addresses the relevant legal and procedural background. See PI.

Through Presidential Proclamation 9693 issued on January 23, 2018, the President imposed safeguard duties, designed to protect 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 –50 available at https://www.federalregister.gov/documents/2018/01/25/2018-01592/to-facilitate-positive-adjustment-to-competition-from-imports-of-certain-crystalline-silicon ("Presidential Proclamation"). After a lengthy 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 (June 13, 2019) available at https://www.federalregister.gov/documents/2019/06/13/2019-12476/exclusion-of-particular-products-from-the-solar-products-safeguard-measure ("Exclusion"). Four months later, however, USTR published the Withdrawal of Bifacial Solar Panels Exclusion to the Solar Products Safeguard Measure, 84 Fed. Reg. 54,244 –45 (USTR Oct. 9, 2019) ("Withdrawal"). Absent the PI, the Withdrawal would have reinstituted safeguard duties on certain bifacial solar panels, with only nineteen days' notice to the public, without an opportunity for affected or interested parties to comment, and without a developed public record on which to base its decision. Id. The 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." Id. at 54,244.

Plaintiff Invenergy initiated this case in response to the Withdrawal. Summons, Oct. 21, 2019, ECF No. 1; Invenergy's Compl., Oct. 21, 2019, ECF No. 13.² The Government subsequently moved for, and the court allowed, USTR to delay the effective date of the Withdrawal to November 8, 2019. Oct. 25, 2019, ECF Nos. 23, 29. The court then issued a TRO, Nov. 7, 2019, ECF No. 68, and later a PI enjoining the Government from implementing or enforcing the Withdrawal, including by amending the Harmonized Tariff Schedule of the United States ("HTSUS"), "until entry of final judgment as to Plaintiffs' claims against Defendants in this case," PI at 57, ––––. In so ruling, the court held that the Withdrawal of the Exclusion by the Government, without appropriate notice and comment, likely violated the Administrative Procedure Act, id. at 42, ––––, and likely was arbitrary and capricious, id. at 44, ––––. The court ordered that the parties confer and submit a proposed briefing schedule. Id. at 58, ––––.

On December 19, 2019, Plaintiffs filed the first of four motions for an extension of time to file the proposed briefing scheduling. Pls.' Mot. for an Ext. of Time, ECF No. 118. The motion stated that the parties believed they had reached an agreement in principle which would resolve the case and asked for additional time to finalize their agreement. Id. at 1–2. The court granted this motion on December 20, 2019. ECF No. 119. The Plaintiffs filed, and the court granted, three additional extensions of time based on the same attempt by parties to resolve this case. Pls.' Mot. for Ext. of Time, Dec. 27, 2019, ECF No. 121; Order Granting Mot., Dec. 27, 2019, ECF No. 122; Pls.' Mot. for Ext. of Time, Jan. 3, 2020, ECF No. 123; Order Granting Mot., Jan. 3, 2020, ECF No. 124; Pls.' Mot for Ext. of Time, Jan. 17, 2020, ECF No. 125; Order Granting Mot., Jan. 17, 2020, ECF No. 126.

On January 21, 2020, the Government filed a Motion for Leave to File a Status Report and Status Report notifying the court and the other parties in the present case of its publication of "a notice in the Federal Register, requesting interested party comment regarding whether to withdraw the exclusion from the safeguard measure pursuant to section 201 of the Trade Act of 1974, 19 U.S.C. § 2251, et seq., for bifacial solar panels contained in Exclusion." ECF No. 129. The court granted the Government's motion on January 24, 2020. ECF No. 130. The Notice was published three days later, thus initiating the comment period. The Notice acknowledged the court's PI "enjoining the U.S. Trade Representative from withdrawing the exclusion on bifacial solar panels from the safeguard measure. If the U.S. Trade Representative determines after receipt of comments pursuant to this notice that it would be appropriate to withdraw the bifacial exclusion or take some other action with respect to the exclusion, the U.S. Trade Representative will request that the Court lift the injunction." Notice at 4,756. The Notice provided a deadline for comments of February 17, 2020 and for responses to those comments of February 27, 2020. Id. at 4,757.

In response, Plaintiffs filed the present Motion on January 30, 2020. Plaintiffs asked the court to "order Defendants to show cause as to why it should not enforce the PI by ordering USTR to cease proceedings under the Notice, and instead proceed to briefing on Plaintiffs' substantive and procedural claims." Mem. in Supp. of Mot. to Show Cause as to Why the Court Should Not Enforce the PI at 12, Jan. 30, 2020, ECF No. 132 ("Pls.' Br."). The court ordered Defendants to respond, Jan. 31, 2020, ECF No. 133, which the Government did on February 7, 2020, Def.'s Resp. to Invenergy's Mot. to Show Cause and Mot. to Vacate Withdrawal and Dismiss Case as Moot, ECF No. 139 ("Def.'s Br."). In its response, the Government requested that the court deny Plaintiffs' motion. Def.'s Br. at 14. The Government included with its response a motion to vacate the Withdrawal and to dismiss the case as moot.³ Id. at 1. Defendant-Intervenor Hanwha Q Cells ("Q Cells") also requested the court deny the Motion. Def.-Inter. Hanwha Q Cells USA, Inc....