Solar Exporters, Importers Say Relief Sought in Suit on SE Asian Solar Cell Duty Pause 'Inequitable'

Solar exporters and importers, led by the American Clean Power Association, said a suit challenging the Commerce Department's duty pause on solar cells and modules from four Southeast Asian countries is "moot" due to a failure to identify an injury that would be redressable through the retroactive imposition of AD/CVD (Auxin Solar v. United States, CIT # 23-00274).

In a reply brief on Nov. 19 at the Court of International Trade, the association said the retroactive imposition of the duties wouldn't remedy any injury to the plaintiffs -- U.S. solar cell maker Auxin Solar and solar module designer Concept Clean Energy -- now that the emergency giving rise to the duty pause has ended, all relevant imports have entered the U.S., and all products have been sold and used by end users.

The American Clean Power Association added that the relief sought by Auxin and Concept Clean Energy is "inequitable." The brief said that various courts, including the Supreme Court and the U.S. Court of Appeals for the Federal Circuit, have "stressed that the right to assert a claim and even the establishment of a rule of law that applies retroactively do not necessarily entitle a plaintiff to retroactive relief.”

The retroactive imposition of the duties would "violate Congressional intent," the association argued. Given the "intricate system" for determining AD/CVD liability laid out by Congress, it's "generally not possible to 'unscramble the egg' for past entries or to restore the status quo ante," the brief said.

In addition, the exporters and importers party to the case have never been given a chance to show that their merchandise isn't dumped or subsidized or to show that they should receive a lower rate than the China-wide AD rate or all-others CVD rate, the association argued. The proper vehicle to assess AD/CVD on these companies is through AD/CVD reviews, and not from a court-ordered retroactive imposition of duties, the brief said. By the time the court issues a decision in this case, all deadlines to request reviews will have passed.

While Auxin and Concept Clean Energy claimed that the exporters and importers made a "strategic choice" not to request AD/CVD reviews, the association said this position is "either entirely disingenuous or reflects an ignorance of how Commerce conducts administrative reviews." To establish a review, there must be a "reviewable entry suspended under the relevant order." The agency didn't suspend liquidation of the entries covered by the duty pause, so because the entries weren't suspended under the orders, interested parties couldn't get a review even if they asked, the brief said.

The association added that since the deadline for requesting reviews has passed, requiring that the duties be imposed on those past entries "would create a tremendous burden on the Government in identifying which entries were actually circumventing the AD/CVD orders and what rate should be applied." Importers "would be even more prejudiced," since these companies imported goods "with the expectation that their merchandise would not be subject to AD/CVD duties, but they would instead face significant liability after the fact if Plaintiffs have their way." Also, imposing the duties without AD/CVD reviews would strip the companies of due process, the association said.

The association rounded out its equitable claims by arguing that Auxin and Concept Clean Energy "have no economic stake in the prior entries." These two companies aren't entitled to the duties that might be collected. And instead of challenging the duty pause right after it was issued, the companies waited 15 months to file suit and never sought to "enjoin the ongoing application of the Final Rule." This delay "undercut any claim of economic harm that Plaintiffs may belatedly seek to develop," the brief said.

President Joe Biden called for the duty pause after finding there to be an emergency regarding the availability of electricity generation capacity to meet consumer demand. Auxin and Concept Clean Energy filed suit to contest Commerce's final rule implementing the duty pause, arguing, among other things, that the relevant statute doesn't allow for an emergency of this type to be called (see 2407230042).

In response to the companies' motion for judgment, the association laid out a host of arguments, including its claim that Auxin and Concept Clean Energy failed to challenge the president's proclamation of the energy-related emergency or his identification of supplies needed to address the emergency. Commerce's final rule "lawfully implemented the President's decision and Plaintiffs missed (indeed, waived) the opportunity to challenge the underlying legal premise for the Final Rule," the brief said.

In addition, the association said the final rule reasonably provided for the suspension of the relevant AD/CVD to address the relevant emergency. Commerce "solicited and considered public comments and implemented the President’s direction to address the emergency regarding supplies for energy projects," the brief said.

The association also said the court lacks authority to order reliquidation of entries if Auxin and Concept Clean Energy win. The order would "undermine the certainty to importers of liquidating entries within a specified time period, as afforded by the liquidation statute," the brief siad.