US Solar Cell Maker, Designer Fend Off Dismissal, Intervention Bids in Case on AD/CVD Pause

Solar cell maker Auxin Solar and solar module designer Concept Clean Energy responded to the U.S. motion to dismiss their suit 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 (see 2401230040) (Auxin Solar v. United States, CIT # 23-00274).

The U.S. said Auxin and Concept Clean Energy could've challenged the duty pause under Section 1581(c) in a suit challenging Commerce's final anti-circumvention findings, instead of under Section 1581(i), the Court of International Trade's "residual" jurisdiction. In response, the pair said the U.S. is "wrong" since the U.S. Court of Appeals for the Federal Circuit has found that antidumping duties are for reasons other than raising revenue under Section 1581(i) and that the plaintiffs' claims relate to Commerce's "failure to 'enforce' such duties under" Section 1581(i).

At least three CAFC decisions back the filing of the case under 1581(i), while the U.S. entirely relies on one CAFC ruling in Ugine and ALZ Belgium v. U.S., the brief noted. However, the government entirely ignores a later CAFC ruling in the same case, which said that CIT had jurisdiction under Section 1581(i) to hear a challenge to liquidation instructions that were "entirely consistent with the originating administrative determination," Auxin and Concept Clean Energy said.

The companies said Section 1581(c) "does not encompass Solar Plaintiffs' suit," since the duty pause is unlike the types of determinations covered by the statute. The "express terms" of the duty pause broadly apply to any duties imposed under the Tariff Act of 1930, including duties "resulting from an original investigation of unfairly traded imports," making them separate from any determination from Commerce.

Even if CIT finds that Section 1581(c) "could conceivably apply" here since Commerce referenced the duty pause alongside its final circumvention finding, "forcing Solar Plaintiffs to pursue relief under Section 1581(c) would be manifestly inadequate," the two companies argued. During the gap between the date the duty pause was imposed and the date on which Commerce mailed notice of its circumvention findings, "roughly $2.65 billion dollars' worth of circumventing CSPV cells and modules liquidated duty free," the brief said.

In a separate filing, Auxin and Concept Clean Energy also opposed motions to intervene in the suit from a host of foreign solar cell exporters and importers, relying on the Federal Circuit's recent holding in California Steel v. U.S., which said that "every proposed defendant-intervenor must establish Article III standing." Certain solar exporters and importers fail to even address how they have Article III standing, while the remaining intervenors' claims they have "piggyback" standing should be rejected for "lack of a responsive pleading setting forth the proposed intervenors' requested relief."

One company, Invenergy, said it has Article III standing, though it "fails to carry its burden to satisfy every element of standing," the brief said. Contrary to its claims, suspending liquidation would just "preserve the status quo" and would not harm Invenergy, and while the company points to AD/CVD assessment as an "alternative harm," the agency's exercise of "administrative grace" to grant duty-free treatment to Invenergy's shipments "has not brought" the company within the "zone of interests" needed to "force such treatment."

The proposed defendant-intervenors also fail "permissive intervention" tests as well, since none of the companies have substantiated the claim that they would be adversely affected by a decision in this action.