Bifacial Panels Now Subject to Solar Safeguard Duties, After CIT Declines to Expand Injunction

A hotly contested exemption from safeguard duties on solar cells has now been terminated -- at least for the time being -- after the Court of International Trade on Nov. 19 declined to expand an injunction to include the administration’s latest bid to withdraw the exclusion, and lifted a temporary restraining order against the withdrawal (see 2010260025 and 2011090033). The elimination of the exemption takes immediate effect, according to a CBP spokesperson.

CIT ruled that a presidential proclamation issued in October to end a safeguard exclusion for bifacial panels does not run afoul of an injunction barring the Office of the U.S. Trade Representative’s earlier attempts at the same result (see 2010130028 and 1912050063). But CIT left the door open for Invenergy Renewables, the Solar Energy Industries Association and other solar companies that had challenged USTR’s withdrawals to continue their fight by way of a second lawsuit.

“We’re obviously disappointed with today’s procedural ruling, which importantly did not include a decision on the merits,” John Smirnow, the SEIA's general counsel, said in an emailed statement. “The latest effort by the administration to reverse direction on the bifacial exclusion as well as increase the solar Section 201 tariffs starting in February is baseless. The bifacial exclusion has already saved consumers hundreds of millions of dollars and many thousands of American jobs -- it should be preserved. SEIA will continue to fight on behalf of the U.S. solar industry and we’re now exploring all legal options, including possibly filing a new action against the October 10th Presidential Proclamation,” he said.

Invenergy and the SEIA had argued that the proclamation was the latest attempt by the administration to get around a line of court decisions that found USTR’s attempted withdrawals violated the Administrative Procedures Act by not allowing for notice and comment and by failing adequately to explain its determination to end the exclusion. They sought to amend their complaint and the injunction to include the proclamation.

Invenergy and the SEIA said the saga was like a game of “Whack-a-Mole.” Justice Department lawyers “said it was more analogous to a game of PacMan,” according to CIT. “We need not choose between the two characterizations here but can say that this litigation has taken many twists and turns,” the trade court said.

CIT found the arguments raised against the proclamation are distinct from those against USTR’s withdrawals, and said they would need to be raised in a separate action. The president is not subject to the APA, and the proclamation relied on new and different justifications, including an International Trade Commission report.

“USTR’s administrative proceedings at issue in the existing complaints are entirely separate from the ITC’s midterm review of the safeguard which led to the modification of the safeguard by the President in issuing Proclamation 10101, now challenged by Plaintiffs. In short, the core issues are different,” CIT said. “Proclamation 10101 involves a distinct and separate action governed by different procedures. As such, the court finds that efficient resolution of Plaintiffs’ claims regarding Proclamation 10101 is most likely to be achieved in a separate proceeding,” CIT said.

(Invenergy Renewables LLC v. U.S., Slip Op. 20-166, CIT # 19-00192, dated 11/19/20, Judge Katzmann)