553 F.Supp.3d 1322
Ct. Int'l Trade2021Background
- In Jan. 2018 President Trump issued Proclamation 9693 imposing 4‑year safeguard duties on certain crystalline silicon photovoltaic (CSPV) cells/modules under 19 U.S.C. §§ 2251–2254. USTR later granted product exclusions, including for bifacial solar panels (June 2019).
- USTR attempted to withdraw the bifacial exclusion twice (Oct. 2019; Apr. 2020); those withdrawals were enjoined in prior Invenergy litigation.
- In Oct. 2020 the President issued Proclamation 10101 invoking 19 U.S.C. § 2254(b)(1)(B) to withdraw the bifacial exclusion and raise the fourth‑year duty from 15% to 18%.
- Plaintiffs (SEIA, NextEra, Invenergy, EDF‑R) sued, alleging Proclamation 10101 violated Sections 201, 203, and 204 of the Trade Act; the Government moved to dismiss and Plaintiffs moved for summary judgment.
- The Court found the procedural challenges (petition form, submission to USTR, majority‑by‑production, timing of the President’s finding, cooling‑off period, and cost‑benefit weighing) largely unsuccessful, but concluded § 204(b)(1)(B) does not authorize trade‑restricting increases and set aside Proclamation 10101.
- Remedy: the Government is enjoined from enforcing Proclamation 10101 and must refund duties collected under it, with interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| (1) Petition requirements under §204(b)(1)(B): form, submission, majority, and basis | The three letters to USTR don’t constitute a petition to the President; petitioners didn’t request relief "on the basis" that industry had made a positive adjustment and were not a majority of representatives | Letters to USTR suffice as a petition; majority can be measured by production volume; the President may rely on the ITC report for the required ‘‘basis’’ | Court: letters collectively constitute a valid petition; submission to USTR is sufficient; majority measured by production volume satisfied; reliance on ITC report and President’s wording not a clear misconstruction |
| (2) Section 203(e)(7) cooling‑off period: re‑imposition on bifacial panels | Withdrawal of the exclusion re‑imposed duties on an ‘‘article’’ less than 2 years after prior action terminated, violating the cooling‑off rule | The relevant "article" is CSPV products generally, not bifacial panels; the exclusion was a modification, not a termination | Court: Article is CSPV generally; exclusion was not a termination for §203(e)(7) purposes; no violation |
| (3) Requirement to weigh economic/social costs (§201) when altering safeguards | Any change under §204 must be accompanied by an updated balancing of costs and benefits; Proclamation 10101 did not adequately weigh the higher 18% rate | Initial §201 weighing in Proclamation 9693 sufficed; §204 does not impose a separate weighing requirement | Court: §201’s cost/benefit requirement applies across the scheme; President’s references to Proclamation 9693 and determination that exclusion impaired effectiveness satisfy the requirement |
| (4) Substantive scope of "modify" in §204(b)(1)(B): can President increase restrictions? | "Modify" authorizes only trade‑liberalizing changes when industry has positively adjusted; increasing restrictions contradicts statutory purpose and international practice | "Modify" is broad and can encompass increases; deleting prior draft language "(but not increase)" shows Congress did not bar increases | Court: "modify" must be read in context to permit only trade‑liberalizing (restrictive reductions) changes; using §204 to withdraw an exclusion and increase duties was a clear misconstruction and exceeded delegated authority; Proclamation 10101 set aside |
Key Cases Cited
- Maple Leaf Fish Co. v. United States, 762 F.2d 86 (Fed. Cir. 1985) (standard for judicial review of Presidential safeguard actions: clear misconstruction, significant procedural violation, or action outside delegated authority)
- Silfab Solar, Inc. v. United States, 892 F.3d 1340 (Fed. Cir. 2018) (narrow review of Presidential action; courts may uphold Presidential acceptance of procedurally flawed agency recommendations)
- Motion Sys. Corp. v. Bush, 437 F.3d 1356 (Fed. Cir. 2006) (courts may assess whether President violated an explicit statutory mandate)
- Corus Group PLC v. Int’l Trade Comm’n, 352 F.3d 1351 (Fed. Cir. 2003) (illustrative limits on review of trade determinations)
- Bostock v. Clayton County, 140 S. Ct. 1731 (U.S. 2020) (statutory terms are interpreted according to ordinary public meaning at enactment)
- United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365 (U.S. 1988) (statutory context clarifies ambiguous language)
- Russello v. United States, 464 U.S. 16 (U.S. 1983) (omission of limiting language from final bill gives rise to a presumption that limitation was not intended)