Lumber Exporter Changes Up Arguments in Own Case in Response to Loper Bright

Loper Bright was cited yet again -- this time in a challenge to a sunset review’s finding that a softwood lumber exporter probably would continue dumping its products in the absence antidumping duties -- as attorneys continue trying to define the new limits of judicial discretion in the post-Chevron era (see 2406280051) (Resolute FP Canada v. U.S., CIT # 23-00095).

Exporter Resolute FP Canada filed a supplemental brief on subsequent authority regarding Loper Bright in its dispute against a sunset review that based its result on the prior investigation’s use of the controversial Cohen’s d test (see 2311080026).

The government, in turn, argues that the Commerce Department’s longstanding practice, as well as the law, indicate that sunset reviews aren’t reviews of individual exporters absent “good cause,” nor are they “opportunities to relitigate” dumping margins (see 2402280077).

But, prior to Loper Bright, “plaintiff’s arguments to this Court on issues of statutory interpretation were formulated in the context of Chevron, which is no longer the applicable standard of review,” Resolute said. Specifically, it said that it had argued that the trade court was required to apply the two-step Chevron test to interpret the regulations governing sunset reviews.

Under Chevron, “an agency could fill gaps in the statute through its own statutory interpretation when a statute was ‘silent or ambiguous,’” it said. Without Chevron, the court, not the government, is the body that can interpret sunset review laws using “the traditional tools of statutory construction,” it said.

It said the Statement of Administrative Action to the Uruguay Round Agreements Act made clear that sunset reviews were intended to impose a time limit on antidumping duties.

“The plain language of the statute, informed by legislative history, indicates that the default position is to sunset orders after five years,” it said.

Under Chevron, “Commerce has grown accustomed to deference,” and as a result it “invert[ed] statutory intent” regarding sunset reviews by placing the burden on Resolute and other respondents to show why the order should remain, the exporter said. It claimed that “by confounding the purpose of the law, Commerce puts undue emphasis on the exception (§ 1675(d)(2)(A) and (B)), resulting in a de facto presumption against respondents.”

Further, the understanding that sunset reviews are order-wide rather than reviews of individual exporters doesn’t appear in the language of the law, either, Resolute said. Instead, it appeared in the Uruguay Round’s pronouncement that “sunset determinations are made on an ‘order-wide basis,’” it said.

“Loper Bright charges the courts with finding the ‘best’ interpretation of the statute,” it said. “Resolute already has demonstrated that, applying the ordinary tools of statutory construction, the Tariff Act fundamentally conceives dumping as company-specific; any approach disallowing company-specific findings and relief in a sunset review would conflict with the Congressionally mandated dumping scheme.”