Solar Cell Importers, Exporters Defend Intervention Bids in CIT Suit on AD/CV Duty Pause

Various solar cell exporters and importers defended their right to intervene in a Court of International Trade lawsuit on the Commerce Department's pause of antidumping and countervailing duties on solar cells and modules from Southeast Asian nations found to be circumventing the AD/CVD orders on these goods from China. Filing a pair of reply briefs, the exporters and importers said they have the right to intervene since they have an "interest in the property or transaction at issue" (Auxin Solar v. United States, CIT # 23-00274).

One brief, led by exporter BYD (H.K.), said that in relying on Commerce's duty pause, the intervening importers and exporters "oriented their supply chains, imported subject products, executed legally binding contracts, and invested capital." BYD said it reasonably relied on Commerce's "clear statement" saying companies can import solar cells without AD/CV duty liability "in their sourcing decisions." If that duty pause is overturned, BYD said, its right to "import duty-free" would be "nullified by the direct legal operation and effect of the judgment."

Solar cell maker Auxin Solar and solar module designer Concept Clean Energy opposed the intervention of the importers and exporters, arguing that the companies' only interest here is "duty payments and the anticipated downstream economic effects of those duty payments," which are just an "economic interest" that can't support intervention (see 2402230066). In response, BYD said that ignores several court holdings that say that "direct economic consequences are relevant in assessing intervention as a matter of right."

"Direct economic consequences related to the litigation -- which are clear here, as conceded by the Plaintiffs -- weigh in favor of intervention as a matter of right," the brief said.

Auxin and Concept Clean Energy also said the U.S. Court of Appeals for the Federal Circuit's ruling in California Steel v. U.S. bars intervention, since in that ruling the appellate court said domestic steel producers couldn't intervene in a suit challenging a denied Section 232 duty exclusion request. The Federal Circuit there said the economic effects would be indirect on the U.S. companies. Meanwhile, in the present case, BYD said that it stands to face "immediate and direct economic consequences as a result of this litigation."

BYD added that it has a "legally protectable right to be heard in the issuance and administration" of the anti-circumvention determinations and implementation of the duty pause. If the rule is vacated, Commerce will have to modify both the circumvention determinations and the final duty pause rule. Since the importers and exporters participated in the circumvention cases, if the determinations are altered, they will have done so without the intervenors having been given a chance to comment on the "legality of this outcome," the brief said.

Auxin and Concept Clean Energy also opposed the interventions on the grounds that the motions are "untimely" since they fail to promote a "just, speedy, and inexpensive determination" and because the court's rules require a pleading to be attached to the intervention motion. On the latter point, BYD said that it clearly attached a motion to dismiss to its motion to intervene. On the former point, BYD said Auxin's claims were "puzzling" since it has not replied to the motion for preliminary injunction and because the intervenors "moved to join the appeal within days of the" U.S. filing a motion to dismiss.

"Plaintiffs, on the other hand, waited more than one year after the publication of the Final Rule that they purportedly challenge to initiate this appeal," the brief said.

In a separate brief, other intervenors, led by NextEra Energy, made similar claims, arguing that there's a "direct relationship between this litigation and proposed intervenors' interests." Auxin and Concept Clean Energy said that the intervenors would not suffer direct and immediate harm since separate litigation might lead to the reversal of the anti-circumvention determinations with respect to certain companies or countries.

In response, NextEra said that the target of this litigation is the duty pause and not the anti-circumvention determinations, and that the plaintiffs "ignore the fact that not all companies subject to the circumvention findings have filed Section 1581(c) appeals challenging those determinations and the deadlines to appeal and intervene have passed."

Both briefs also alternatively sought permissive intervention should the claims for intervention as a right fail. The intervenors said they would be "adversely affected or aggrieved by a decision" in the suit. Also, the defenses raised by the proposed intervenors "share law and facts in common with the government defendant's defenses" and intervention would not "unduly delay or prejudice adjudication of the case."