Solar Cell Importers, Exporters Seek to Intervene in CIT Suit on AD/CVD Duty Pause

Various importers and exporters are looking to intervene in a suit from solar cell maker Auxin Solar and solar module designer Concept Clean Energy challenging the Commerce Department's pause of antidumping and countervailing duties on solar cells and modules from Southeast Asian countries found to be circumventing the AD/CVD orders on these goods from China (Auxin Solar v. United States, CIT # 23-00274).

In all, eight different companies or groups of companies sought to join the action, led by the Solar Energy Industries Association, JA Solar USA, Canadian Solar, the American Clean Power Association, NextEra Energy, Invenergy, Trina Solar and BYD HK Co. All different groups of would-be intervenors also filed motions to dismiss the case, following a similar effort from the U.S. (see 2401230040).

The government moved to toss the case for lack of subject matter jurisdiction, claiming the Court of International Trade doesn't have jurisdiction under Section 1581(i), the court's "residual" jurisdiction. The U.S. said the case should instead be filed under Section 1581(c) -- the provision allowing the court to hear challenges to decisions made by the Commerce Department.

The motions to dismiss from the proposed intervenors laid out similar, if not identical, legal claims. For instance, BYD said that in essence, Auxin and Concept Clean Energy challenge the final determinations in the anti-circumvention reviews and not the final rule suspending the duties. As a result, the court "lacks subject matter jurisdiction over the claims as pleaded."

Commerce issued the rule in question following a proclamation from President Joe Biden calling for the duty pause due to the emergency of "electricity generation capacity." The move was taken following a preliminary affirmative anti-circumvention finding on solar cells and modules from Malaysia, Thailand, Vietnam and Cambodia (see 2212020064).

BYD said that by asking the court to require duties for the period identified by Biden, Auxin and Concept Clean Energy are "requesting that the Court invalidate a portion of the Final Determination, a request which is properly made under Section 1581(c)." The company also said the "true nature" of the case is a request that the trade court invalidate the final circumvention findings and "corresponding instructions," meaning remedy under Section 1581(c) is not “manifestly inadequate.”