422 F.Supp.3d 1255
Ct. Int'l Trade2019Background
- In January 2018 the President imposed Section 201 safeguard duties on certain crystalline silicon photovoltaic (CSPV) cells and delegated to USTR authority to publish procedures and grant exclusions from those duties.
- USTR promulgated "Exclusion Procedures" by Federal Register notice (notice-and-comment style), opened a rulemaking docket, and granted a product-specific exclusion for bifacial solar modules effective June 13, 2019 (with corresponding HTSUS modifications).
- After industry opponents asked USTR to reconsider, USTR published a Federal Register notice on October 9, 2019 withdrawing the bifacial exclusion effective October 28, 2019 (later delayed), providing about 19 days’ public notice and no opportunity for new notice-and-comment input on the Withdrawal.
- Invenergy (joined by SEIA, Clearway, EDF‑R, AES DE) sued, alleging USTR’s Withdrawal violated the Administrative Procedure Act (notice‑and‑comment and arbitrary-and-capricious requirements), Section 201, and Fifth Amendment due process, and sought a TRO/PI to preserve the status quo.
- The Court found Invenergy and intervenors had constitutional and statutory standing, concluded USTR’s Exclusion was adopted via rulemaking so a repeal required notice‑and‑comment, found the Withdrawal likely arbitrary and capricious and not justified by any foreign‑affairs exception, and granted a preliminary injunction enjoining implementation of the Withdrawal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Invenergy: procedural injury plus imminent economic, business, reputational harms; in zone of interests of Section 201 | Gov/Q Cells: harms speculative, depend on third parties, consumers not within Section 201 zone | Court: Invenergy (and alternatively intervenors SEIA/EDF‑R) have Article III and statutory (zone‑of‑interests) standing |
| Is USTR an "agency" subject to the APA here? | Plaintiffs: USTR is an "authority of the Government" and its final exclusion/Withdrawal are agency actions subject to APA | Gov: USTR acted under President’s delegation; Presidential acts are not APA‑bound, so APA does not apply | Court: USTR is an agency for these exclusion/Withdrawal actions and APA applies |
| Rulemaking vs. adjudication; requirement of notice‑and‑comment for Withdrawal | Plaintiffs: Exclusion was issued via notice‑and‑comment rulemaking (prospective, HTSUS change); repeals of such rules must use same procedures — Withdrawal required notice‑and‑comment | Gov/Q Cells: Withdrawal was an informal adjudication or routine HTSUS modification not subject to §553; agency may rescind internally | Court: Exclusion was rulemaking; Withdrawal functionally repealed a rule and thus required notice‑and‑comment; USTR likely violated APA procedure |
| Arbitrary, capricious, and foreign‑affairs exception | Plaintiffs: Withdrawal contains conclusory rationale and lacks public record or reasoned explanation; arbitrary and capricious | Q Cells/Gov: Review is limited in Section 201 context; action involves foreign affairs and presidential discretion | Court: Withdrawal likely arbitrary and capricious for lack of reasoned explanation/record; foreign‑affairs exception inapplicable here |
| PI factors (irreparable harm, balance, public interest) | Plaintiffs: procedural injury itself irreparable; economic and reputational harms; public interest favors adherence to APA | Gov/Q Cells: administrative burden, lost revenue, harm to domestic industry outweigh plaintiffs’ harms | Held: Plaintiffs will suffer irreparable harm; balance of hardships and public interest favor enjoining Withdrawal; preliminary injunction granted |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (preliminary‑injunction standard and four‑factor test)
- Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199 (2015) (agency must use same procedures when rescinding rules issued after notice‑and‑comment)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious review requires reasoned explanation)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing elements)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (injury‑in‑fact must be concrete and particularized)
- Silfab Solar, Inc. v. United States, 892 F.3d 1340 (2018) (preliminary injunction standard in trade litigation)
- Gilda Indus., Inc. v. United States, 446 F.3d 1271 (2006) (procedural deprivation can itself confer standing)
- Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319 (2008) ("economic logic" and standing to challenge import duties)
- Corus Grp. PLC v. Bush, 217 F. Supp. 2d 1347 (2002) (discussion of limited review in Section 201/global safeguard context)