Invenergy Renewables LLC v. United States

Citation552 F.Supp.3d 1382
Decision Date17 November 2021
Docket NumberSlip Op. 21-155,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 Katherine Tai, U.S. Customs and Border Protection, and Acting Commissioner of U.S. Customs and Border Protection Troy A. Miller, Defendants.
CourtU.S. Court of International Trade

Amanda Shafer Berman and John Brew, Crowell & Moring LLP, of Washington, D.C. and New York, N.Y., argued for Plaintiff Invenergy Renewables LLC and Plaintiff-Intervenors Clearway Energy Group LLC and AES Distributed Energy, Inc. With them on the joint briefs were Larry Eisenstat and Frances Hadfield.

Matthew R. Nicely and Daniel M. Witkowski, Akin, Gump, Strauss, Hauer & Feld LLP, of Washington, D.C., argued for Plaintiff-Intervenor Solar Energy Industries Association.

Christine M. Streatfeild and Kevin M. O'Brien, Baker & McKenzie LLP, of Washington, D.C., 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, D.C., argued for Defendants United States of America, Office of the United States Trade Representative, United States Trade Representative Katherine Tai, U.S. Customs and Border Protection, and Acting Commissioner of U.S. Customs and Border Protection Troy A. Miller. With him on the briefs were Bryan M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Tara K. Hogan, Assistant Director.

OPINION

Katzmann, Judge:

The court returns to a dispute regarding the United States and the Office of the United States Trade Representative's ("USTR") withdrawal of the previously granted exclusion from safeguard duties on imported bifacial solar modules, duties which in 2018 the President imposed by proclamation to protect domestic industry.1 See Proclamation 9693 : To Facilitate Positive Adjustment to Competition from Imports of Certain Crystalline Silicon Photovoltaic Cells (Whether or Not Partially or Fully Assembled into Other Products) and for Other Purposes, 83 Fed. Reg. 3,541 (Jan. 23, 2018) (" Proclamation 9693"). After lengthy preliminary disputes, 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 judgment on the agency record challenging the Determination on the Exclusion of Bifacial Solar Panels From the Safeguard Measure on Solar Products, 85 Fed. Reg. 21,497 (USTR Apr. 17, 2020) ("Second Withdrawal"), by Defendants the United States, USTR, U.S. Trade Representative Katherine Tai, U.S. Customs and Border Protection ("CBP"), and CBP Acting Commissioner Troy A. Miller (collectively, "the Government").2 Specifically, Plaintiffs contend that the Second Withdrawal should be vacated as a decision issued without statutory authority and without compliance with the requirements of the Administrative Procedure Act ("APA"). Pls.’ Mot. for J. on the Administrative R., Feb. 5, 2021, ECF No. 302 ("Pls.’ Br."). The Government requests that the court uphold the Second Withdrawal as in accordance with the Trade Act of 1974, the APA, and otherwise supported by record evidence. Defs.’ Corr. Resp. to Pls.’ Mot. for J. on the Administrative R., June. 15, 2021, ECF No. 322 ("Defs.’ Br."). The court grants Plaintiffs’ motion and vacates the Second Withdrawal.

BACKGROUND

The court presumes familiarity with its previous opinions -- (1) Invenergy Renewables LLC v. United States, 43 CIT ––––, 422 F. Supp. 3d 1255 (2019) ( Invenergy I ); (2) id., 44 CIT ––––, 427 F. Supp. 3d 1402 (2020) ( Invenergy II ); (3) id., 44 CIT ––––, 450 F. Supp. 3d 1347 (2020) ( Invenergy III ); (4) id., 44 CIT ––––, 476 F. Supp. 3d 1323 (2020) ( Invenergy IV ); and (5) id., 44 CIT ––––, 482 F. Supp. 3d 1344 (2020) ( Invenergy V ) -- each of which provide additional information on the factual and legal background of this case.3 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.

I. The Safeguard Statute

Through the Trade Act of 1974, 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 ("Safeguard Statute"). Section 202 of that the Safeguard Statute 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. Under Section 203, 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). Finally, Section 204 outlines the process by which the President may modify safeguard measures. 19 U.S.C. § 2254.

II. The President's Safeguard Action and Delegation to USTR

In May 2017, pursuant to 19 U.S.C. § 2252(a), Suniva, Inc. ("Suniva"), a domestic solar cell producer, filed an amended petition with the ITC alleging that certain solar panel cells "are being imported into the United States in such increased quantities as to be a substantial cause of serious injury, or threat thereof, to the domestic industry producing an article like or directly competitive with the imported article." Crystalline Silicon Photovoltaic Cells (Whether or Not Partially or Fully Assembled into Other Products) at 6, Inv. No. TA-201-75, USITC Pub. 4739 (Nov. 2017) ("ITC Report"). The ITC then instituted an investigation pursuant to 19 U.S.C. § 2252. Id.; Procedures to Consider Additional Requests for Exclusion of Particular Products From the Solar Products Safeguard Measure, 83 Fed. Reg. 6,670 (USTR Feb. 14, 2018) ("Exclusion Procedures") (citing 19 U.S.C. § 2252 ). The scope of its investigation covered certain crystalline silicon photovoltaic ("CSPV") cells,

whether or not partially or fully assembled into other products, of a thickness equal to or greater than 20 micrometers, having a p/n junction (or variant thereof) formed by any means, whether or not the cell has undergone other processing, including, but not limited to cleaning, etching, coating, and addition of materials (including, but not limited to metallization and conductor patterns) to collect and forward the electricity that is generated by the cell. The scope of the investigation also included photovoltaic cells that contain crystalline silicon in addition to other materials, such as passivated emitter rear contact cells, heterojunction with intrinsic thin layer cells, and other so-called "hybrid" cells ("certain CSPV cells").

Exclusion Procedures, 83 Fed. Reg. at 6,670. The ITC reached an affirmative determination that certain CSPV cells "are being imported into the United States in such increased quantities as to be a substantial cause of serious injury, or threat of serious injury, to the domestic industry producing a like or directly competitive article," Proclamation 9693, 83 Fed. Reg. at 3,541, and referred its findings and recommendations to the President on November 13, 2017. ITC Report at 1, 7.

Pursuant to Section 203 of the Safeguard Statute, in 2018 President Trump issued a proclamation, imposing temporary safeguard duties of 30% on certain CSPV cells, to decrease by 5% each year until 2022, at which point the safeguard duties end. See generally, Proclamation 9693. The safeguard duties applied to the bifacial solar panels used by Invenergy. Pls.’ Br. at 8. The President implemented these duties by modifying Chapter 99 of the Harmonized Tariff Scheduled of the United States ("HTSUS"). Proclamation 9693, 83 Fed. Reg. at Annex I. The President also instructed USTR to publish within thirty days "procedures for requests for exclusion of a particular product" from the safeguard duties...

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2 cases
  • In re Section 301 Cases
    • United States
    • U.S. Court of International Trade
    • April 1, 2022
    ...vacatur in reference to a prior court opinion. See Pls.’ Suppl. Authority at 2 (discussing Invenergy Renewables LLC v. United States , 45 CIT ––––, ––––, 552 F. Supp. 3d 1382, 1400, 1404 (2021) ). The Government, in turn, sought to distinguish that case and, in so doing, argued for a differ......
  • In re Section 301 Cases
    • United States
    • U.S. Court of International Trade
    • April 1, 2022
    ...to a prior court opinion. See Pls.' Suppl. Authority at 2 (discussing Invenergy Renewables LLC v. United States, 45 CIT__, __, 552 F.Supp.3d 1382, 1400, 1404 (2021)). The Government, in turn, sought to distinguish that case and, in so doing, argued for a different outcome. See Defs.' Resp. ......

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