Changzhou Trina Solar Energy Co. v. United States International Trade Commission, 36 I.T.R.D. (BNA) 1822

Background

SolarWorld petitioned Commerce and the ITC in Oct. 2011 alleging dumped/subsidized crystalline silicon photovoltaic (CSPV) cells and modules from China; POI Jan 2009–June 2012. Commerce made affirmative AD/CVD findings; ITC issued an affirmative material-injury determination in Nov. 2012.
The ITC defined the domestic like product to include CSPV cells and modules but excluded thin‑film photovoltaic products after applying the six-factor like‑product test.
The ITC excluded Suntech Arizona from the domestic industry as a related party (import‑focused), but included Motech based on its greater domestic production, investment and performance.
The ITC found subject imports from China gained substantial market share, widely undersold U.S. products, and depressed U.S. prices and financial performance despite rising U.S. demand and government incentives.
Plaintiffs challenged the ITC decision under 28 U.S.C. § 1581(c)/19 U.S.C. § 1516a, arguing (1) thin‑film should have been included as the domestic like product, (2) Suntech Arizona should not have been excluded, and (3) the ITC failed to apply a proper “but‑for” causation analysis given industry conditions (grid parity, incentive phase‑outs, growth of the utility segment).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope: whether thin‑film products are part of the domestic like product	Thin‑film and CSPV share key uses, materials, channels and compete; differences are minor — they should be included	ITC applied the six‑factor test and found significant differences in physical characteristics, manufacture, interchangeability, customer perceptions, channels and price	ITC’s exclusion of thin‑film is supported by substantial evidence and sustained
Domestic industry composition: exclusion of Suntech Arizona	Suntech Arizona’s U.S. activities are similar to other domestic producers and exclusion is inconsistent with treatment of Motech	Suntech Arizona was related to Chinese producers, had high import/production ratio and financial indicators showing import‑oriented interests; facts differ materially from Motech	ITC reasonably excluded Suntech Arizona and included Motech; decision sustained
Causation methodology: whether ITC had to apply a "but‑for" analysis given market conditions	ITC should have performed a formal "but‑for" inquiry because grid parity, incentive phase‑outs, and utility demand explained industry decline independent of subject imports	"But‑for" is required in limited circumstances (commodity + substitutable non‑subject imports); ITC considered alternative causes and distinct market conditions as required by statute	ITC adequately considered market conditions and non‑subject imports; its causation finding that injury was "by reason of" subject imports is supported by substantial evidence
Market effects: whether grid parity, incentives, utility growth explain injury instead of dumped imports	Declining polysilicon prices, phasing incentives, and utility demand made low prices inevitable; absence of Chinese imports would not have improved U.S. industry	ITC found incentives still stimulated demand, domestic capacity existed, non‑subject imports declined, subject imports massively grew and pervasively undersold U.S. product — price was decisive	ITC reasonably evaluated these factors, credited record evidence and purchaser surveys, and appropriately attributed injury to subject imports

Key Cases Cited

Cleo Inc. v. United States, 501 F.3d 1291 (Fed. Cir. 2007) (like‑product six‑factor test)
Gerald Metals, Inc. v. United States, 132 F.3d 716 (Fed. Cir. 1997) (statutory requirement to show injury is "by reason of" subject imports)
Bratsk Aluminium Smelter v. United States, 444 F.3d 1369 (Fed. Cir. 2006) (but‑for analysis where commodity and substitutable non‑subject imports exist)
Mittal Steel Point Lisas Ltd. v. United States, 542 F.3d 867 (Fed. Cir. 2008) (limitations and application of but‑for causation)
Nucor Corp. v. United States, 414 F.3d 1331 (Fed. Cir. 2005) (definition of material injury)