Solar Cell Exporter Says Loper Bright Doesn't Let Commerce Elevate 1 Circumvention Factor

The U.S. ignored the Supreme Court's recent decision in Loper Bright Enterprises v. Raimondo in defending its circumvention finding on exporter Canadian Solar, the solar panel exporter said in a Nov. 15 reply brief. Canadian Solar said the Commerce Department should not be shown "tremendous" deference, as claimed by the U.S., since the agency doesn't have "unbridled authority to make an affirmative finding of circumvention" (Canadian Solar International v. United States, CIT # 23-00222).

Applying the record to the "best interpretation of the statutory terms has nothing to do with a re-weighing of the evidence at all," the brief said. The trade court must find whether Commerce's findings are in line with the "best reading of that statutory language," the exporter claimed.

In its reply brief, Canadian Solar also argued that Commerce erred in finding that both it and exporter Trina Solar Science & Technology conducted "minor or insignificant processing" in Thailand and also improperly relied on one factor, research and development investment, over the other circumvention factors.

Canadian Solar said it has "major and significant manufacturing in Thailand," adding that, according to dictionary definitions, Commerce hasn't applied the best reading of "minor or insignificant." Insignificant means "lacking meaning or import," "small in size, quantity, or number," "not worth considering," "not noticeable," and "not important or thought to be valuable," the brief said. None of these definitions "in any way resemble the massive, state-of-the-art, and highly valuable manufacturing operations" of both Canadian Solar and Trina Solar in Thailand, the brief said.

The U.S. failed to "confront" this point, "likely because there is no reasonable basis to conclude that the assembly or completion in Thailand is 'insignificant,'" the brief said.

Canadian Solar added that the law doesn't let Commerce elevate R&D investment over the other statutory factors, contesting the government's claim that, without a clear statutory directive, the agency's reliance on R&D must stand. The exporter said this position no longer flies in the face of the Loper Bright decision. "In short, Commerce must act within the bounds of the best reading of the statute in administering the circumvention provision, including its application of the R&D factor," the brief said.

The U.S. can't "bridge this disconnect between" the statute's "articulation of the bounds of the law and Commerce's insistence on making just one of the five factors controlling," the exporter claimed. CIT shouldn't let the agency "chart this novel approach" of elevating one in a list of equal factors, particularly since the government "has failed to grapple with contradictory agency precedents in which Commerce has consistently indicated that R&D was less important relative to the other" factors, the brief said.