Invenergy Renewables LLC v. United States

• Decision Date: 15 October 2020
• Docket Number: Slip Op. 20-144,Court No. 19-00192
• Citation: 476 F.Supp.3d 1323
• 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

476 F.Supp.3d 1323

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. 20-144

Court No. 19-00192

United States Court of International Trade.

October 15, 2020

Amanda Shafer Berman, John Brew and Larry F. 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 were Kathryn L. Clune, Frances Hadfield and Leland P. Frost.

Matthew R. Nicely and Daniel M. Witkowski, Akin, Gump, Strauss, Hauer & Feld LLP, of Washington, DC, argued for plaintiff-intervenor, Solar Energy Industries Association. With them on the prior briefs were Hughes Hubbard & Reed LLP, of Washington, D.C.

Christine M. Streatfeild and Kevin M. O'Brien, 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 briefs were Joseph H. Hunt, Assistant Attorney General, Ethan P. Davis, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Tara K. Hogan, Assistant Director.

John M. Gurley, Dianna Dimitriuc-Quaia and Friederike S. Friederike S. Görgens, Arent Fox LLP, of Washington, DC, argued for defendant-intervenors, Hanwha Q CELLS USA, Inc. and Auxin Solar Inc. With them on the briefs was Jessica R. DiPietro.

OPINION

Katzmann, Judge:

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 For the third time in this hotly contested litigation, the court is presented with a failure to comply with foundational principles of administrative law -- in this case, to act with transparency and to provide adequate, public explanation of agency decisions. Consequently, the court is precluded once again from conducting a full and final review of the merits of the USTR claim that its effort to withdraw the exclusion from safeguard duties should be sustained. The Defendants' renewed motion to dissolve the preliminary injunction ("PI") is denied. In so holding, the court reiterates that it no way intimates a view as to the ultimate outcome of this litigation to exclude bifacial solar products from safeguard duties or to withdraw that exclusion.

Plaintiff Invenergy Renewables LLC ("Invenergy"), a renewable energy company, 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 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) ("First 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; Order Granting Mot., Nov. 4, 2019, ECF No. 54; Auxin Solar's Mot. to Intervene as Def.-Inter., Feb. 7, 2020, ECF No. 136; Order 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." Prelim. Inj. Order and Op., Invenergy Renewables LLC v. United States, 43 CIT ––––, ––––, 422 F. Supp. 3d 1255, 1265 (2019), ECF No. 113 (" Invenergy I"). Invenergy I was followed by two more litigated motions and opinions. See Order 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" ); Order and Op. Denying Mot. to Dissolve PI, Mots. to Dismiss, and Granting Mot. to Suppl. Compls., Invenergy Renewables LLC v. United States, 44 CIT ––––, 450 F. Supp. 3d 1347 (2020), ECF No. 185 (" Invenergy III").

The court's most recent decision in this case, Invenergy III, resolved several motions in light of USTR's second determination to withdraw the 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) ("Second Withdrawal"). There, the court denied, inter alia, the Government's first motion to dissolve the PI and an earlier motion asking the court to vacate the PI and dismiss the case as moot. Invenergy III, 450 F. Supp. 3d at 1351. Thereafter, USTR issued a notice of rescission of the First Withdrawal. Rescission of the First Withdrawal of the Bifacial Solar Panels Exclusion From the Safeguard Measure on Solar Products, 85 Fed. Reg. 35,975 (USTR June 12, 2020) ("June 2020 Rescission"). The Government then filed a renewed motion to dissolve the PI based on the June 2020 Rescission. Def.'s Mot. to Dissolve PI, June 12, 2020, ECF No. 198 ("Def.'s Renewed Mot. to Dissolve PI"). Plaintiffs responded with a cross motion to amend the PI to include the Second Withdrawal, and also filed a motion to complete the administrative record. Pls.' Resp. to Def.'s Mot. To Dissolve PI and Cross-Mot. To Modify PI, June 29, 2020, ECF No. 206 ("Pls.' Br."); Pls.' Mot. to Complete A.R., June 19, 2020, ECF No. 201. Without in any way reaching the merits of the Government's action seeking to withdraw the exclusion from safeguard duties, the court now denies the Government's renewed motion to dissolve the PI, vacates the First Withdrawal, modifies the PI to enjoin enforcement of the Second Withdrawal, grants Plaintiffs' motion to complete the record, in part, and denies Plaintiffs' motion to stay the case pending appeal.

BACKGROUND

The court presumes familiarity with its previous opinions -- (1) Invenergy I, supra, (2) Invenergy II, supra, and (3) Invenergy III, supra, -- each 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).

Id. 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...