Invenergy Renewables LLC v. United States ( 2019 )

Slip Op. 19-
UNITED STATES COURT OF INTERNATIONAL TRADE
INVENERGY RENEWABLES LLC,
Plaintiff,
and
SOLAR ENERGY INDUSTRIES
ASSOCIATION, CLEARWAY ENERGY
GROUP LLC, EDF RENEWABLES, INC. and
AES DISTRIBUTED ENERGY, INC.,
Plaintiff-Intervenors,
v.
UNITED STATES OF AMERICA, OFFICE
Before: Judge Gary S. Katzmann
OF THE UNITED STATES TRADE
Court No. 19-00192
REPRESENTATIVE, UNITED STATES
TRADE REPRESENTATIVE ROBERT E.
LIGHTHIZER, U.S. CUSTOMS AND
BORDER PROTECTION, and ACTING
COMMISSIONER OF U.S. CUSTOMS AND
BORDER PROTECTION MARK A.
MORGAN,
Defendants,
and
HANWHA Q CELLS USA, INC.,
Defendant-Intervenor.
OPINION AND ORDER
[Plaintiffs’ motion for a preliminary injunction is granted.]
Dated: December 5, 2019
John Brew, Kathryn L. Clune, and Amanda Berman, Crowell & Moring LLP, of Washington, DC
and New York, NY, argued for plaintiff, Invenergy Renewables LLC and plaintiff-intervenors,
Court No. 19-00192 Page 2
Clearway Energy Group LLC and AES Distributed Energy, Inc. With them on the brief were Larry
Eisenstat, Robert LaFrankie, and Frances Hadfield.
Matthew R. Nicely and Daniel M. Witkowski, Hughes Hubbard & Reed LLP, of Washington, DC,
argued for plaintiff-intervenor, Solar Energy Industries Association. With them on the brief were
Dean A. Pinkert and Julia K. Eppard.
Kevin M. O’Brien and Christine M. Streatfeild, Baker & McKenzie LLP, of Washington, DC,
argued for plaintiff-intervenor, EDF Renewables, Inc.
Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for defendants. With him on the brief were
Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Tara K. Hogan,
Assistant Director.
John M. Gurley, Jackson Toof, and )ULHGHULNH6*ऺUJHQV, Arent Fox LLP, of Washington, DC,
argued for defendant-intervenor. With them on the brief was Diana Dimitriuc Quaia.
Katzmann, Judge: This case, generated by the American solar industry, raises fundamental
questions of adherence by the Government to procedures for decision making required by statute.
Through Presidential Proclamation 9693 on January 23, 2018, the President imposed safeguard
duties, designed to protect domestic industry, on imported monofacial and bifacial solar panels but
delegated authority to the Office of the U.S. Trade Representative (“USTR”) to exclude products
from the duties. 83 Fed. Reg. 3,541–49 (“Presidential Proclamation”). After a lengthy process,
USTR decided to exclude bifacial solar panels from safeguard duties. Exclusion of Particular
Products From the Solar Products Safeguard Measure, 84 Fed. Reg. 27,684–85 (June 13, 2019)
(“Exclusion”). Four months later, however, USTR reversed course. It announced the Withdrawal,
which reinstituted safeguard duties on certain bifacial solar panels, with only 19 days’ notice to
the public, without an opportunity for affected and/or interested parties to comment, and without
a developed public record on which to base its decision. Withdrawal of Bifacial Solar Panels
Exclusion to the Solar Products Safeguard Measure, 84 Fed. Reg. 54,244–45 (USTR Oct. 9, 2019)
(“Withdrawal”). Because this court instituted, and once renewed, a temporary restraining order
(“TRO”), the Withdrawal has not yet gone into effect.
Court No. 19-00192 Page 3
The question now before this court is whether a preliminary injunction (“PI”) should issue
where Plaintiffs allege that the United States (“the Government”) violated the Administrative
Procedure Act (“APA”), Title II-Relief From Injury Caused By Import Competition of the Trade
Act of 1974 (herein “Section 201”), 1 and constitutional due process under the Fifth Amendment
by failing to follow requisite procedures in withdrawing an exclusion to safeguard duties on solar
products previously granted through notice-and-comment rulemaking. Plaintiff Invenergy
Renewables LLC -- a renewable energy company-- (“Invenergy”), 2 joined by Plaintiff-Intervenors
Solar Energy Industries Association (“SEIA”), Clearway Energy Group LLP (“Clearway”), EDF
Renewables, Inc. (“EDF-R”), and AES Distributed Energy, Inc. (“AES DE”) (collectively,
“Plaintiffs”), challenges the Withdrawal by the Government. Plaintiffs ask the court to enjoin the
Government from reversing, without adequate process, its decision to exclude bifacial solar
panels 3 from safeguard duties; that is, Plaintiffs ask the court to implement a PI to maintain the
status quo until such time as the lawfulness of the Withdrawal is determined by final judgment.
This case emerges from a debate within the American solar industry between entities that
rely on the importation of bifacial solar panels and entities that produce predominately monofacial
solar panels in the United States. Plaintiffs here, who include consumers, purchasers, and
importers of utility-grade bifacial solar panels, argue that the importation of bifacial solar panels
1
Section 201 is the first section of this title as published in the United States Public Laws. Trade
Act of 1974, Pub. L. No. 93-618, 88 Stat. 1978 (1975) (codified as amended at 19 U.S.C. §§
í (2012)). Commonly, safeguard duties are referred to as “Section 201 duties,”
regardless of the specific section of the Trade Act of 1974 being invoked. Where applicable,
this opinion cites the appropriate section of the U.S. Code.
2
Invenergy describes itself as “the world’s leading independent and privately-held renewable
energy company.” Invenergy’s Compl. at ¶ 14, Oct. 21, 2019, ECF No. 13.
3
For the purposes of this opinion, the terms “solar panels” and “solar modules” are used
interchangeably.
Court No. 19-00192 Page 4
does not harm domestic producers because domestic producers do not produce utility-scale bifacial
solar panels; they thus oppose safeguard duties that they contend increase the cost of these bifacial
solar panels. Domestic producers, however, contend that solar project developers can use either
monofacial or bifacial solar panels, and thus safeguard duties are necessary to protect domestic
production of solar panels. Both sides contend that their position better supports expanding solar
as a source of renewable energy in the United States.
Invenergy, however, also makes clear that this suit does not call upon the court to decide
the future of the solar industry. Instead, before the court is its challenge to the Withdrawal on
process grounds. Invenergy’s Mot. for PI at 14, Nov. 1, 2019, ECF No. 49. The soundness of the
safeguard duties and whether they should apply to bifacial solar panels are not the subject of this
suit. Rather, at stake here is whether USTR undertook reasoned decision making to implement
the Withdrawal, as required by the APA, including provision for meaningful participation by
interested parties. The Government must follow its own laws and procedures when it acts, and the
court finds it likely that it did not do so in withdrawing the Exclusion without adequate process.
The court thus determines that a PI is warranted. The court now grants Invenergy’s motion for a
PI to enjoin the United States, USTR, U.S. Trade Representative Robert E. Lighthizer, U.S.
Customs and Border Protection (“CBP”), and CBP Acting Commissioner Mark A. Morgan
(collectively “the Government”) from implementing the Withdrawal.
BACKGROUND
I. Statutory Overview
Through Section 201, Congress provided a process by which the executive branch could
implement temporary safeguard measures to protect a domestic industry from the harm associated
with an increase in imports from foreign competitors. 7UDGH$FWRI††í19 U.S.C.
Court No. 19-00192 Page 5
§§ 2251–54 (2012). Section 201 dictates that, upon petitions from domestic entities or industries,
the International Trade Commission (“ITC”) may make an affirmative determination that serious
injury or a threat of serious injury to that industry exists. 19 U.S.C. § 2252. The President may
then authorize discretionary measures, known as “safeguards,” to provide a domestic industry
temporary relief from serious injury. 19 U.S.C. § 2253. The statute vests the President with
decision making authority based on consideration of ten factors. 4 19 U.S.C. § 2253(a)(2).
4
19 U.S.C. § 2253(a)(2) provides:
In determining what action to take under paragraph (1), the President shall take into
account--
(A) the recommendation and report of the Commission;
(B) the extent to which workers and firms in the domestic industry are--
(i) benefitting from adjustment assistance and other manpower programs,
and
(ii) engaged in worker retraining efforts;
(C) the efforts being made, or to be implemented, by the domestic industry
(including the efforts included in any adjustment plan or commitment submitted to
the Commission under section 2252(a) of this title) to make a positive adjustment
to import competition;
(D) the probable effectiveness of the actions authorized under paragraph (3) to
facilitate positive adjustment to import competition;
(E) the short- and long-term economic and social costs of the actions authorized
under paragraph (3) relative to their short- and long-term economic and social
benefits and other considerations relative to the position of the domestic industry
in the United States economy;
(F) other factors related to the national economic interest of the United States,
including, but not limited to--
(i) the economic and social costs which would be incurred by taxpayers,
communities, and workers if import relief were not provided under this part,
(ii) the effect of the implementation of actions under this section on
consumers and on competition in domestic markets for articles, and
(iii) the impact on United States industries and firms as a result of
international obligations regarding compensation;
(G) the extent to which there is diversion of foreign exports to the United States
market by reason of foreign restraints;
(H) the potential for circumvention of any action taken under this section;
(I) the national security interests of the United States; and
(J) the factors required to be considered by the Commission under section
2252(e)(5) of this title.
Court No. 19-00192 Page 6
Safeguard measures have a maximum duration of four years, unless extended for another
maximum of four years based upon a new determination by the ITC. 19 U.S.C. § 2253(e)(1). The
statute also outlines certain limits on the President’s ability to act under this statute, including to
limit new actions after the termination of safeguard measures regarding certain articles. See 19
U.S.C. § 2253(e). Further, the safeguard statute mandates that the President “shall by regulation
provide for the efficient and fair administration of all actions taken for the purpose of providing
import relief.” 19 U.S.C. § 2253(g)(1).
The President issued the Presidential Proclamation on January 23, 2018, announcing a
safeguard measure against imports of solar products after an affirmative determination of injury
by the ITC. See also U.S. Int’l Trade Comm’n, Crystalline Silicon Photovoltaic Cells (Whether
or not Partially or Fully Assembled into Other Products), Inv. No. TA-201-75, USITC Pub. 4739
(Nov. 2017) (“ITC Report”). The details of this proclamation are discussed further below.
Notably, the Presidential Proclamation delegated the process of “exclusion of a particular product
from the safeguard measure” to USTR. Presidential Proclamation at 3,541. Subsequently, USTR
issued procedures for parties to follow in seeking exclusions from the safeguard measure.
Procedures to Consider Additional Requests for Exclusion of Particular Products From the Solar
Products Safeguard Measure, 83 Fed. Reg. 6,670–72 (USTR Feb. 14, 2018) (“Exclusion
Procedures”). These procedures were silent as to the revision, reconsideration, or withdrawal of
exclusions once issued.
Through its Exclusion Procedures, USTR invited requests for exclusions and comments
from interested persons. Id. at 6,671. The parties dispute whether this process constituted agency
rulemaking pursuant to the APA. See Invenergy’s Mot. for PI at 17; SEIA’s Resp. to Invenergy’s
Mot. for PI at 7, Nov. 8, 2019, ECF No. 83; Def.’s Resp. to Invenergy’s Mot. for PI at 2, Nov. 8,
Court No. 19-00192 Page 7
2019, ECF No. 74; Q Cells’ Resp. to Invenergy’s Mot. for PI at 12, Nov. 8, 2019, ECF No. 84.
Relevant here are the APA’s requirements for notice-and-comment rulemaking by government
agencies, which dictate the procedures to be followed by agencies when making certain legal or
policy decisions. See, e.g., 5 U.S.C. §§ 551, 701 (2012). Furthermore, the APA provides broad
judicial review of agency actions brought by “person[s] suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action within the meaning of a relevant
statute.” 5 U.S.C. § 702. The APA states that courts will “hold unlawful and set aside” agency
action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(a).
II. Factual Background
The facts necessary for the court to decide the motion for a PI are not in dispute. In May
2017, pursuant to 19 U.S.C. § 2252(a), Suniva, Inc. (“Suniva”), a domestic solar cell producer
filed an amended petition with the ITC alleging that certain solar panel cells “are being imported
into the United States in such increased quantities as to be a substantial cause of serious injury, or
threat thereof, to the domestic industry producing an article like or directly competitive with the
imported article.” ITC Report at 6; Def.’s Resp. at 4; Invenergy’s Mot. for PI at 3. The ITC then
instituted an investigation pursuant to 19 U.S.C. § 2252. Exclusion Procedures at 6,670(citing 19
U.S.C. § 2252). The scope of its investigation covered certain crystalline silicon photovoltaic
(“CSPV”) cells,
whether or not partially or fully assembled into other products, of a thickness equal
to or greater than 20 micrometers, having a p/n junction (or variant thereof) formed
by any means, whether or not the cell has undergone other processing, including,
but not limited to cleaning, etching, coating, and addition of materials (including,
but not limited to metallization and conductor patterns) to collect and forward the
electricity that is generated by the cell. The scope of the investigation also included
photovoltaic cells that contain crystalline silicon in addition to other materials, such
Court No. 19-00192 Page 8
as passivated emitter rear contact cells, heterojunction with intrinsic thin layer cells,
and other so-called “hybrid” cells
(“certain CSPV cells”). Exclusion Procedures at 6,670. The ITC held a hearing on injury on
August 15, 2017, voted on injury on September 22, 2017, held a hearing on remedy on October 3,
2017, voted on remedy on October 31, 2017, and referred its findings and recommendations to the
President on November 13, 2017. ITC Report at 7. The ITC reached an affirmative determination
that certain CSPV cells “are being imported into the United States in such increased quantities as
to be a substantial cause of serious injury, or threat of serious injury, to the domestic industry
producing a like or directly competitive article.” Presidential Proclamation at 3,541. See also ITC
Report at 1.
Pursuant to the statutory framework of safeguard procedures, 19 U.S.C. §§ 2253, the
President issued a proclamation, imposing temporary safeguard duties of 30% on certain CSPV
cells, to decrease by five percent each year until 2022, at which point they end. Id. DWí
The safeguard duties applied to the bifacial solar panels used by Invenergy. See Invenergy’s Mot.
for PI at 7–8. The President also instructed USTR to publish within thirty days “procedures for
requests for exclusion of a particular product” from the safeguard duties in the Federal Register
and authorized USTR to make such exclusions after consultation with the Secretaries of Commerce
and Energy and publishing a notice in the Federal Register. Presidential Proclamation DWí
The safeguard duties went into effect on February 7, 2018. Id. DWí
USTR then published procedures for exclusion requests in the Federal Register in February
2018. Exclusion Procedures. The notice summarized the scope of the ITC’s investigation, the
scope of the products covered by the Presidential Proclamation, and the procedure to request the
exclusion of solar products. Id. USTR invited “interested persons to submit comments identifying
a particular product for exclusion from the safeguard measure and providing reasons why the
Court No. 19-00192 Page 9
product should be excluded.” Id. at 6671. Moreover, USTR indicated that “[a]ny request for
exclusion clearly should identify the particular product in terms of physical characteristics . . . that
distinguish it from products that are subject to the safeguard measures” and that it would not
“consider requests that identify the product at issue in terms of the identity of the producer,
importer, or ultimate consumer” or “products using criteria that cannot be made available to the
public.” Id. The notice made clear that exclusions would become effective upon publication in
the Federal Register. Id. The notice further outlined the process for comments on exclusion
requests, noting that “[a]fter the submission of requests for exclusion of a particular product,
interested persons will have an opportunity to comment on the requests, indicate whether they
support or oppose any of them, and provide reasons for their view” and directing parties to
regulations.gov to comment. Id. USTR required interested parties to submit written comments by
March 16, 2018 and responses by April 16, 2018 to guarantee consideration. Id. at 6,672. The
notice did not provide a method for withdrawing an exclusion during the four-year safeguard
period. See id. at 6,670–72.
The safeguard duties applied to both monofacial and bifacial solar panels. Monofacial
solar panels have CSPV cells on one side and opaque backing on the reverse side, allowing them
to produce power from only one side. Invenergy’s Mot. for PI at 3; Def.’s Resp. to Invenergy’s
Mot. for PI at 7. Bifacial solar panels have CSPV cells on both sides, thus allowing them to
produce about ten percent more power than monofacial solar panels. See id. Plaintiffs argue the
Withdrawal will increase the cost of solar energy and harm the development of the solar industry
in the United States because domestic manufacturers do not produce utility-scale bifacial solar
panels. See, e.g., SEIA’s Compl. ¶ 16, Oct. 24, 2019, ECF No. 21 (citations omitted).
Court No. 19-00192 Page 10
Three solar companies, Pine Gate Renewables, Sunpreme, Inc., and SolarWorld Industries
GmBH, submitted requests for USTR to exclude the bifacial solar panels at issue here. Invenergy’s
Compl., Oct. 21, 2019, ECF No. 13, Ex. D, Letter from Pine Gate Renewables to Edward Gresser
(March 16, 2018); Invenergy’s Compl. Ex. E, Letter from Sunpreme, Inc. to Edward Gresser
(March 16, 2018); Invenergy’s Compl. Ex. F, Letter from SolarWorld Industries GmbH to USTR
(undated); Invenergy’s Mot. for PI at 5; Def.’s Resp. to Invenergy’s Mot. for PI at 8. USTR
received forty-eight product exclusion requests and 213 comments responding to these requests.
Exclusion at 27,684. USTR considered the exclusion requests, granted certain product exclusions
in a previous Federal Register notice, and “[b]ased on an evaluation of the factors set out in the
February 14 notice” granted additional product exclusions, including bifacial solar panels,
effective June 13, 2019. Id. DWí7KHQRWLFHGLGQRWSURYLGHDPHWKRGfor or otherwise
indicate that the exclusions could be withdrawn during the safeguard period. Id.
Shortly after USTR granted the exclusion request for bifacial solar panels, on June 26,
2019, Suniva, First Solar Inc., and Hanwha Q Cells USA, Inc. (“Q Cells”) wrote to USTR to ask
it to reconsider its decision, arguing that the Exclusion would, “in a very short period of time,
undermine the relief afforded by the Section 201 tariffs as imposed by the President on January
23, 2018.” Invenergy’s Compl. Ex. H, Letter from Suniva, First Solar, and Q Cells to Ambassador
Gerrish, Deputy U.S. Trade Representative (June 26, 2019). The letter referenced a meeting
between the parties less than a week prior and included eighteen attachments for USTR’s
consideration. Id. On October 3, 2019, based on alleged rumors that USTR was considering
rescinding the Exclusion, Invenergy’s CEO and thirteen other solar industry executives wrote to
USTR expressing their desire to be heard should USTR plan to take any additional actions
Court No. 19-00192 Page 11
regarding the Exclusion. Invenergy’s Mot. for PI at 5–6; Def.’s Resp. to Invenergy’s Mot. for PI
at 9; Invenergy’s Compl. Ex. J, Letter to USTR re: Solar Safeguard Bifacial Module Exclusion.
On October 9, 2019, USTR published a notice in the Federal Register announcing its
decision to withdraw the exclusion for bifacial solar panels, effective October 28, 2019.
Withdrawal; Invenergy’s Mot. for PI at 6; Def.’s Resp. to Invenergy’s Mot. for PI at 9. The notice
explained that, “[s]ince publication of [the Exclusion] notice, the U.S. Trade Representative has
evaluated this exclusion further and, after consultation with the Secretaries of Commerce and
Energy, determined it will undermine the objectives of the safeguard measure.” Withdrawal at
54,244. The Government subsequently moved for, and the court allowed, USTR to delay the
effective date of the Withdrawal to November 8, 2019. Nov. 25, 2019, ECF Nos. 23, 29. As
addressed below, the court subsequently issued a TRO, and the Withdrawal has not yet gone into
effect.
III. Procedural History
Invenergy initiated this action against the Government on October 21, 2019 by filing its
summons, complaint, and a motion for a TRO. Summons, ECF No. 1; Invenergy’s Compl.;
Invenergy’s Mot. for TRO, ECF No. 14. The court held a teleconference with Invenergy and the
Government on October 23, 2019. ECF No. 18. The Government filed its response in opposition
to Invenergy’s motion for a TRO on October 24, 2019. Def.’s Resp. to Invenergy’s Mot. for TRO,
ECF No. 19. Pursuant to the court’s order permitting Invenergy to respond to the Government’s
arguments raised during the teleconference, Invenergy filed a supplemental brief on October 24,
2019. Invenergy’s Supp. Br. in Resp. to Order, ECF No. 20. That same day, SEIA filed a motion
to intervene as plaintiff-intervenor. SEIA’s Mot. to Intervene, Oct. 24, 2019, ECF No. 21.
Court No. 19-00192 Page 12
On October 25, 2019, the court ordered Invenergy and the Government to file briefs
regarding the issue of security, should the court grant Invenergy’s motion for a TRO. ECF No.
22. Invenergy and the Government filed letters with the court, as well as their respective responses.
Def.’s Letter in Resp. to Order, Oct. 25, 2019, ECF No. 25; Invenergy’s Resp. to Order, Oct. 25,
2019, ECF No. 26; Def.’s Letter in Resp. to Invenergy’s Resp. to Order, Oct. 25, 2019, ECF No.
27; Invenergy’s Resp. to Order, Oct. 25, 2019, ECF No. 28. The Government simultaneously
moved for leave to defer implementation of the Withdrawal until November 8, 2019, thirty days
after the notice announcing the Withdrawal was published in the Federal Register, to which
Invenergy consented. Def.’s Mot. to Defer Implementation, Oct. 25, 2019, ECF No. 23;
Invenergy’s Resp. to Def.’s Mot. to Defer Implementation, Oct. 25, 2019, ECF No. 24. The court
then granted the Government’s motion, thus delaying the effective date of the Withdrawal to
November 8, 2019, ordered the Government to respond to SEIA’s motion to intervene, Oct. 25,
2019, ECF Nos. 29, 30, and ordered an expedited briefing schedule based on Invenergy’s
representations during the October 23, 2019 teleconference that it intended to move for a PI, Oct.
25, 2019, ECF No. 31.
On October 28, 2019, the Government filed its response to SEIA’s motion to intervene
noting its position that SEIA lacked constitutional and statutory standing, and, pursuant to the
court’s order, SEIA replied on October 29, 2019. Def.’s Resp. to SEIA’s Mot. to Intervene, Oct.
28, 2019, ECF No. 34; Order on SEIA’s Reply on Mot. to Intervene, Oct. 28, 2019, ECF No. 35;
SEIA’s Reply to SEIA’s Mot. to Intervene, Oct. 29, 2019, ECF No. 38. The following day, the
court granted SEIA’s motion to intervene, designating SEIA as a plaintiff-intervenor. Oct. 30,
2019, ECF No. 39. SEIA’s complaint against the Government was then deemed filed. SEIA’s
Compl., Oct. 30, 2019, ECF No. 43.
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On October 31, 2019, the court ordered additional briefing on the issue of security in the
event the court should issue a TRO, ECF No. 45, and Invenergy, SEIA, and the Government filed
their respective briefs and responses. Invenergy’s Resp. to Order, Nov. 4, 2019, ECF No. 53;
Def.’s Resp. to Order, Nov. 4, 2019, ECF No. 56; SEIA’s Resp. to Order, Nov. 5, 2019, ECF No.
61; Def.’s Reply to Order, Nov. 5, 2019, ECF No. 62; Invenergy’s Reply to Order, Nov. 5, 2019,
ECF No. 63; SEIA’s Reply to Order, Nov. 5, 2019, ECF No. 65. The court instituted a TRO on
November 7, 2019, requiring nominal security based on the procedural harms alleged. ECF No.
68.
The court also granted Q Cells’ unopposed motion to intervene as defendant-intervenor. Q
Cells’ Mot. to Intervene, Nov. 4, 2019, ECF No. 54. Clearway and EDF-R moved to intervene as
plaintiff-intervenors on November 4, 2019 and November 7, 2019, respectively. Clearway’s Mot.
to Intervene, Nov. 4, 2019, ECF No. 58; EDF-R’s Mot. to Intervene, Nov. 7, 2019, ECF No. 69.
The Government did not oppose EDF-R’s intervention as an importer of bifacial solar cells,
“subject to Defendants’ objections in its opposition to SEIA’s intervention.” EDF-R’s Mot. to
Intervene at 2. Clearway’s motion stated that “Defendants’ counsel indicated that the Government
opposes this motion.” Clearway’s Mot. to Intervene at 4. Therefore, as ordered by the court, ECF
No. 66, the Government responded to Clearway’s motion claiming that Clearway lacked standing.
Def.’s Resp. to Clearway’s Mot. to Intervene, Nov. 8, 2019, ECF No. 72. The court granted
Clearway’s and EDF-R’s motions to intervene on November 8, 2019. ECF Nos. 76, 78.
Clearway’s and EDF-R’s previously filed respective complaints against the Government were then
deemed filed. Nov. 8, 2019, ECF Nos. 77, 79. AES DE filed a partial consent motion to intervene
on November 13, 2019. AES DE’s Mot. to Intervene, ECF No. 90. The Government responded
on November 27, 2019 stating its opposition to AES DE’s standing for the same reasons it opposed
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Clearway’s intervention. Def.’s Resp. to AES DE’s Mot. to Intervene, Nov. 27, 2019, ECF No.
109. The court granted AES DE’s motion and its complaint was deemed filed. Nov. 27, 2019,
ECF Nos. 110, 111.
Invenergy filed a motion for a PI on November 1, 2019. Invenergy’s Mot. for PI, ECF No.
49. The Government filed its response in opposition to Invenergy’s motion for a PI and a motion
to dismiss on November 8, 2019. Def.’s Resp. to Invenergy’s Mot. for PI, ECF No. 74. SEIA
filed a response in support of Invenergy’s motion for a PI. SEIA’s Resp. to Invenergy’s Mot. for
PI, Nov. 8, 2019, ECF No. 83. Q Cells filed a response in opposition to Invenergy’s motion for a
PI. Q Cells’ Resp. to Mot. for PI, Nov. 8, 2019, ECF No. 84. The court held a hearing on
Invenergy’s motion for a PI on November 13, 2019 and permitted the parties to file post-hearing
memoranda. ECF No. 96 (“Hearing”). The Government, Q Cells, EDF-R, Clearway, Invenergy,
AES DE and SEIA filed supplemental briefs on November 19, 2019. Def.’s Supp. Resp. to
Invenergy’s Mot. for PI, ECF No. 100; Q Cells’ Supp. Resp. to Invenergy’s Mot. for PI, ECF No.
101; EDF-R’s Supp. Resp. to Invenergy’s Mot. for PI, ECF No. 102; AES DE, Clearway, and
Invenergy’s Supp. Resp. to Mot. for PI, ECF No. 104; SEIA’s Supp. Resp. to Invenergy’s Mot.
for PI, ECF No. 104. The court extended the TRO by fourteen days on November 28, 2019. ECF
No. 108.
JURISDICTION AND STANDING
The court has jurisdiction over this case pursuant to 28 U.S.C. § 1581(i), which provides
that the court “shall have exclusive jurisdiction of any civil action commenced against the United
States, its agencies, or officers, that arises out of any law of the United States providing for . . .
[the] administration and enforcement” of tariffs and duties. As a threshold, the court addresses
whether Invenergy, or in the alternative Invenergy joined by the Plaintiff-Intervenors, has
Court No. 19-00192 Page 15
constitutional standing to sue the Government to challenge the implementation of the Withdrawal.
See Canadian Lumber Trade All. v. United States, 517 F.3d 1319, 1330–31 (Fed. Cir. 2008). In
addition to constitutional standing, a plaintiff must also have statutory standing to bring a claim.
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014). The court
addresses each in turn. The Government argues that Invenergy has neither constitutional standing
nor statutory standing, thus barring the court’s exercise of jurisdiction over this case. 5 Def.’s Resp.
to Invenergy’s Mot. for PI at 11–19. Invenergy and Plaintiff-Intervenors argue that Invenergy
independently meets the requirements of both constitutional and statutory standing. Invenergy’s
Mot. for PI at 7; SEIA’s Resp. to Invenergy’s Mot. for PI at 2–4; EDF-R’s Supp. Resp. to
Invenergy’s Mot. for PI at 1–3. The court concludes that Invenergy both independently and once
joined by Plaintiff-Intervenors has standing to challenge the Withdrawal.
I. Invenergy Has Constitutional and Statutory Standing to Sue.
Because Invenergy has suffered an actual, imminent injury that is fairly traceable to the
Withdrawal and that can be redressed by injunctive relief, and Invenergy falls within the zone of
interests of Section 201, Invenergy independently has constitutional and statutory standing.
A. Invenergy Has Constitutional Standing.
To invoke the jurisdiction of a federal court, a party must meet the case or controversy
requirements of Article III of the Constitution. See U.S. Const. art. III, § 2. “The essence of the
standing question, in its constitutional dimension, is whether the plaintiff has alleged such a
personal stake in the outcome of the controversy (as) to warrant [its] invocation of federal-court
5
The Government also opposed Clearway’s and AES DE’s intervention as plaintiffs on this
ground. Def.’s Resp. to Clearway’s Mot. to Intervene, Nov. 8, 2019, ECF No. 72; Def.’s Resp.
to AES DE’s Mot. to Intervene, Nov. 27, 2019, ECF No. 109. For the same reasons provided
regarding Invenergy’s standing, these arguments are not persuasive.
Court No. 19-00192 Page 16
jurisdiction and to justify exercise of the court’s remedial powers on [its] behalf.” Vill. of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 260–61 (1977) (internal citations
and quotations omitted). Specifically, a plaintiff must show: (1) “that it has suffered a concrete
and particularized injury that is either actual or imminent,” (2) “that the injury is fairly traceable
to the defendant,” and (3) “that a favorable decision will likely redress that injury.” Massachusetts
v. EPA, 549 U.S. 497, 517 (2007) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).
The injury may be indirect so long as it is fairly traceable to defendants’ conduct. Vill. of Arlington
Heights, 429 U.S. at 261. See also Nat. Res. Def. Council, Inc. v. Ross, 42 CIT __, __ 331 F.
Supp. 3d 1338, 1357, 1361 (2018).
The Government and Q Cells argue that Invenergy has not alleged an imminent and
particularized injury, and that any injury suffered by Invenergy has been caused by third party
action; therefore, those injuries are not sufficiently traceable to the Withdrawal and not redressable
by this court. Def.’s Resp. to Invenergy’s Mot. for PI at 11–13; Q Cells’ Resp. to Invenergy’s
Mot. for PI at 4, 6–7. Furthermore, the Government alleges that, insofar as there may have been
procedural violation, a “procedural violation alone is insufficient to confer standing.” Def.’s Resp.
to Invenergy’s Mot. for PI at 13. See also Q Cells’ Resp. to Invenergy’s Mot. for PI at 6–7.
Invenergy responds that it does not merely allege a procedural injury, but also other
concrete harms is sufficient to confer Article III standing. Invenergy’s Mot. for PI at 9. In addition
to the procedural harm, Invenergy alleges that it will suffer economic harms, lost business
opportunities, and reputational harm. Invenergy’s Mot. for PI at 7–9, 35–37. Invenergy alleges it
will suffer a procedural harm of loss of an opportunity to be heard by USTR on the Withdrawal,
extensive economic harms as a result of higher duties on bifacial solar panels, lost business
opportunities in the form of foregone tax credit qualification, and reputational harm in the failure
Court No. 19-00192 Page 17
of its ability to fulfill its obligations and souring business relationships. Id. Invenergy also
disagrees that its harm is dependent upon third party action: “Invenergy is not attempting to rely
on injuries sustained by others to show its standing, nor to redress them; it seeks only to prevent
the impending harm to its business.” Invenergy’s Mot. for PI at 12. Therefore, Invenergy alleges
that it has shown sufficient injury, causation, and redressability in order to meet the Article III
constitutional standing requirement.
The court determines that Invenergy has standing to challenge the Withdrawal as required
by Article III of the Constitution.
1. Invenergy Has a Concrete and Particularized Injury That Is Actual or
Imminent.
“To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a
legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting
Lujan, 504 U.S. at 560. A particularized injury “affect[s] the plaintiff in a personal and individual
way.” Id. (quoting Lujan, 504 U.S. at 560 n.1). A concrete injury need be real, but not necessarily
tangible. Id. at 1549. “[T]he injury-in-fact requirement. . . ensure[s] that the plaintiffs have a
stake in the fight and will therefore diligently prosecute the case while, at the same time, ensuring
that the claim is not abstract or conjectural so that resolution by the judiciary is both manageable
and proper.” Canadian Lumber, 517 F.3d at 1332–33 (citations and quotations omitted). The
constitutional standing requirement of “[i]njury-in-fact is not Mount Everest.” Id. at 1333.
(internal citation omitted). While a bare procedural violation alone may be insufficient to confer
standing where the violation does not result in harm to the plaintiff, it is sufficient where that
procedural harm results in other concrete harms. See Spokeo, 136 S. Ct. 1549. Furthermore, as
the Federal Circuit recognized in Gilda Industries, Inc. v. United States, 446 F.3d 1271, 1279 (Fed.
Court No. 19-00192 Page 18
Cir. 2006), lack of procedure can constitute sufficient injury even where there exists the possibility
that the agency’s final decision taken in accordance with the proper procedures may not be in
plaintiff’s favor. Id. (“[T]he failure to conduct review and revision of the list injured Gilda by
depriving it of at least an opportunity to have those products removed. That is a sufficient injury
to be cognizable under the test for Article III standing.”) (citations omitted).
Here, Invenergy has alleged a procedural harm and additional economic, business, and
reputational harms to show an actual or imminent concrete and particularized injury. Responding
to the Government’s characterization of its harm as a “bare procedural violation,” Invenergy states
that its injuries are instead “concrete harms that will result and have resulted to its business” from
the procedurally deficient Withdrawal. Invenergy’s Mot. for PI at 9. The court agrees that these
harms are not speculative but are concrete and imminent. The harms to Invenergy’s business and
reputation are also particular to Invenergy. See Discussion infra Section III.
The Government and Q Cells focus on allegations of harm to Invenergy stemming from
price increases that impact existing and future projects which would use bifacial solar panels. See
Def.’s Resp. to Invenergy’s Mot. for PI at 12–14; Q Cells’ Resp. to Invenergy’s Mot. for PI at 4–
6. The Government argues that “Invenergy’s alleged harm is thus based on an assumption” and
Invenergy’s own “business decisions.” Def.’s Resp. to Invenergy’s Mot. for PI at 12 (citations
omitted). Furthermore, the Government and Q Cells contend that these harms were voluntarily
assumed by Invenergy and depend on relationships with and decisions of third parties. Id. at 12–
13; Q Cells’ Resp. to Invenergy’s Mot. for PI at 6–8. They argue that because Invenergy is not an
importer of bifacial solar panels, Invenergy cannot rely on third party standing to bring this
challenge itself. Def.’s Resp. to Invenergy’s Mot. for PI at 12–11–15; Q Cells’ Resp. to
Invenergy’s Mot. for PI at 5, 7. Therefore, they contend, any increase in price or economic impact
Court No. 19-00192 Page 19
is speculative and depends on the rights of third parties and is not sufficient to create Article III
standing. Def.’s Resp. to Invenergy’s Mot. for PI at 12–14; Q Cells’ Resp. to Invenergy’s Mot.
for PI at 5–8. Finally, Q Cells argues that even if Invenergy suffered a procedural harm, failure to
comment on the Withdrawal does not make its injury actual or imminent. Q Cells’ Resp. to
Invenergy’s Mot. for PI at 6.
However, the Government and Q Cells fail to recognize that Invenergy’s claims hinge on
a procedural violation that is accompanied by harms other than the allegations of economic impacts
alone. First, Invenergy alleges a harm from USTR’s lack of proper procedure in implementing the
Withdrawal. Analogous to the procedural injury at issue in Gilda, 446 F.3d at 1271, here Plaintiffs
allege that USTR has failed to provide sufficient notice and opportunity to comment and provide
information to USTR so for USTR to make a reasoned decision regarding the Withdrawal.
Invenergy alleges economic, business, and reputational harms stemming from this procedural
violation which are concrete and particularized to Invenergy. See, e.g., Invenergy’s Mot. for PI at
7–10, 35–37.
Invenergy alleged sufficient claims of economic harm to constitute injury-in-fact. See
Invenergy, Clearway, and AES DE’s Supp. Resp. to Mot. for PI at 2–3. These economic harms
can be shown through “economic logic.” See Canadian Lumber, 517 F.3d at 1333. In Canadian
Lumber, the Federal Circuit affirmed this court’s holding that the Canadian Wheat Board, a wheat
seller -- not an importer or exporter -- had Article III standing because it was “likely” to suffer
“economic injury” as a result of duties imposed on wheat from Canada, the proceeds of which
were distributed to an entity promoting North Dakotan wheat. Id. at 1334. The Federal Circuit
agreed with this court’s reliance on “economic logic” to reach that conclusion. Id. at 1333–34.
The court determines that this “economic logic” applies here: the duty on bifacial panels will
Court No. 19-00192 Page 20
increase -- and, with it, likely Plaintiffs’ costs -- if the Withdrawal goes into effect. See Invenergy,
Clearway, and AES DE’s Supp. Resp. to Mot. for PI at 1–2. Plaintiffs, however, do not rely on
“economic logic” alone. Both “economic logic” and detailed testimony show that, because of the
Withdrawal, the price of bifacial panels will rise, causing substantial economic injuries to
Invenergy’s solar energy projects and larger business. See Invenergy, Clearway, and AES DE’s
Supp. Resp. to Mot. for PI at 3; Invenergy’s Mot. for PI. Therefore, Invenergy has alleged a
package of procedural, economic, business, and reputational harms that in combination are
sufficiently concrete, imminent, and particularized to satisfy the injury requirement. 6
2. Invenergy’s Injury Is Fairly Traceable to the Government’s
Withdrawal and Is Redressable by the Court.
The second and third criteria of constitutional standing are that the injury is fairly traceable
to the challenged conduct of the defendant and that a judicial decision is likely to redress the injury.
Lujan, 540 U.S. at 561–62. These prongs of constitutional standing can be established even if the
injury is indirect. Nat. Res. Def. Council, 331 F. Supp. 3d at 1357 (citing Vill. Of Arlington
Heights, 429 U.S. at 260–61; Lujan, 540 U.S. at 561–62). In Nat. Res. Def. Council, the court
found redressability where “[p]laintiffs . . . show[ed] that the third parties in question [were] likely
to respond to a United States import ban in a way that reduces danger . . . .” Id. at 1359. In sum,
that actions of third parties may redress part of the alleged injury is not a conclusive bar to standing.
Invenergy argues that a PI and ultimate resolution of this issue will provide “Invenergy, its
suppliers, and its customers with the business certainty they need to go forward with their pending
6
Non-economic harms referenced in this section are discussed further below in the context of
irreparable harm. See Discussion infra Section III. While Article III injury-in-fact and
irreparable harm analyses may overlap, they are not identical. Therefore, the economic harms
that are sufficient to constitute injury-in-fact for constitutional purposes are analyzed in a
different light under the irreparable harm standard.
Court No. 19-00192 Page 21
and upcoming projects.” Invenergy’s Mot. for PI at 10. It contends that injunctive relief will
maintain the status quo until a final decision can be reached, which if favorable would redress
Invenergy’s procedural injury, “giving it the opportunity to provide its views to USTR, have them
considered, and obtain an explanation for USTR’s decision . . . ” Invenergy’s Supp. Resp. for
TRO at 7. In sum, the injuries, at least in that respect, do not depend upon the actions of third
parties.
The Government and Q Cells argue that Invenergy’s injuries are not fairly traceable to the
Withdrawal because Invenergy’s harm arises from relationships with third parties and not from the
Government’s own actions. Def.’s Resp. to Invenergy’s Mot. for PI at 12–13; Q Cells’ Resp. to
Invenergy’s Mot. for PI at 7. The Government contends that “there is no basis, other than
speculation, to conclude that enjoining USTR’s determination would redress Invenergy’s claimed
injury.” Def.’s Resp. to Invenergy’s Mot. for PI at 13. Similarly, Q Cells argues that “[t]he
problem with this speculative claim is that even if this [c]ourt reversed the Withdrawal, it would
have no control over what the suppliers decide to do with their pricing models.” Q Cells’ Resp. to
Invenergy’s Mot. for PI at 7.
The court concludes that Invenergy’s injury stems directly from the Withdrawal, even if
some of the specific harms it alleges involve relationships with third parties. Invenergy provides
evidence that injuries would not exist but for the implementation of the Withdrawal because its
economic and reputational harms stem from reliance on the Exclusion and attempt to adjust to the
Withdrawal, respectively. Invenergy’s Mot. for PI at 31–33. Furthermore, Invenergy’s procedural
injury is directly traceable to the Withdrawal announced without sufficient notice or opportunity
for comment as required by the APA. See, e.g., ThyssenKrupp Acciai Speciali Terni S.P.A. v.
United States, 32 CIT 728, 735–36, 572 F. Supp. 2d 1323, 1331 (2008). This procedural injury is
Court No. 19-00192 Page 22
also redressable by a decision from this court favorable to Invenergy because, if it succeeds on the
merits, the court would order USTR to provide additional process in its decision to reconsider the
Exclusion. See Lujan, 504 U.S. at 561–62. Moreover, the redressability prong can be met where
a judicial decision would result in a remand or order to an agency to follow process rather than
directing a specific outcome. See, e.g., Gilda, 446 F.3d at 1279 (deprivation of opportunity for
agency to exercise discretionary review is sufficient injury to satisfy Article III standing);
ThyssenKrupp, 572 F. Supp. 2d at 1331 (“Providing such an opportunity for review would
sufficiently redress ThyssenKrupp’s injury and satisfy Article III standing”). In short, Invenergy
has shown that it has or will imminently suffer a package of concrete and particularized injuries,
including a procedural injury, that is fairly traceable to the Withdrawal and can be redressed by a
favorable decision of the court. Therefore, Invenergy has shown that it meets the constitutional
standing requirements.
B. Invenergy Has Statutory Standing Under Section 201 To Bring This Suit.
In addition to the constitutional requirements of standing under Article III, courts have
adopted an additional standing requirement, sometimes referred to in decisions as the prudential
standing requirement, but that the Supreme Court has clarified is simply a statutory “zone of
interests” analysis. Lexmark, 572 U.S. at 126, 128 n.4 (“[P]rudential standing is a misnomer as
applied to the zone-of-interests analysis,” and “We have on occasion referred to this inquiry as
‘statutory standing’” (citations omitted)). See also Lone Star Silicon Innovations LLC v. Nanya
Tech. Corp., 925 F.3d 1225, 1235 (Fed. Cir. 2019) (adopting non-jurisdictional “statutory
standing” post-Lexmark). Unlike constitutional standing, statutory standing is not jurisdictional.
Gilda, 446 F.3d at 1280 (“the zone of interest tests is not jurisdictional”) (citations omitted); Lone
Star Silicon, 925 F.3d at 1235–36. The court nevertheless must consider it as integral to the
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likelihood of success before granting injunctive relief. U.S. Ass’n of Importers of Textiles and
Apparel v. United States, 413 F.3d 1344, 1348 (Fed. Cir. 2005).
“[C]ourts applying the judicial review standards of the [APA], 5 U.S.C. § 702, determine
whether the plaintiff has standing to seek review under that statute based on ‘whether the interest
sought to be protected by the complainant is arguably within the zone of interests to be protected
or regulated by the statute or constitutional guarantee in question.’” Gilda, 446 F.3d at 1279–80
(quoting Ass’n of Data Processing Serv. Orgs, Inc. v. Camp, 397 U.S. 150, 153 (1970)). The zone
of interests analysis “asks whether this particular class of persons ha[s] a right to sue under this
substantive statute” using “traditional principles of statutory interpretation.” Lexmark, 572 U.S.
at 127–28 (citations and quotations omitted). The purpose of this analysis is to limit parties who
may sue under statutorily granted causes of action to those who have actually been injured. Id. at
129. This requirement stems from a need to limit the APA’s “generous review provisions” with a
“broad[] remedial purpose.” Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 394–95 (1987); see
also Lexmark, 572 U.S. at 129. The courts consider the “overall context” of the relevant statutory
framework in deciding which interests are arguably protected. Clarke, 479 U.S. at 401. See also
Lexmark, 572 U.S. at 130 (“In [the APA] context we have often conspicuously included the word
arguably in the test to indicate that the benefit of any doubt goes to the plaintiff” (citations and
quotations omitted)). “[W]e then inquire whether the plaintiff’s interests affected by the agency
action in question are among them.” Nat’l Credit Union Admin. v. First Nat’l Bank, 522 U.S. 479,
492 (1998). The Supreme Court has explained that, “[i]n applying the ‘zone of interests’ test, we
do not ask whether, in enacting the statutory provision at issue, Congress specifically intended to
benefit the plaintiff.” Id. Further, in the context of the APA, this zone of interests test “is not
meant to be especially demanding,” and, “[i]n cases where the plaintiff is not itself the subject of
Court No. 19-00192 Page 24
the contested regulatory action,” the test is satisfied unless the “the plaintiff’s interests are so
marginally related to or inconsistent with the purposes implicit in the statute that it cannot
reasonably be assumed that Congress intended to permit the suit.” Clarke, 479 U.S. at 399. “We
have made clear, however, that the breadth of the zone of interests varies according to the
provisions of law at issue, so that what comes within the zone of interests of a statute for purposes
of obtaining judicial review of administrative action under the generous review provisions of the
APA may not do so for other purposes.” Lexmark, 572 U.S. at 130–31 (internal citations and
quotations omitted).
Invenergy claims that it falls within the zone of interests of “Section 201 and the entire
safeguard statutory scheme.” Invenergy’s Mot. for PI at 14. SEIA, in support of Invenergy’s
motion for a PI, argues that “[t]he [c]ourt should take into account [the] assessments by the
Congress and the President regarding the causal relationship between the imposition (or removal)
of safeguard duties on an imported product and the harm to consumers of that product” in analyzing
Invenergy’s statutory standing under Section 201. SEIA’s Resp. to Invenergy’s Mot. for PI at 4.
See also Invenergy’s Mot. for PI at 13 (arguing that Invenergy is within the zone of interests of
Section 201).
The Government claims that Invenergy “falls far outside the ‘zone of interests’ of [S]ection
201 and, thus, lacks prudential standing.” Def.’s Resp. to Invenergy’s Mot. for PI at 16. Because
the Government claims that the APA does not apply to actions of USTR, Id. at 2, the Government’s
briefs do not discuss statutory standing in connection with the APA. The Government and Q Cells
focus on Invenergy’s standing under Section 201 to argue that Invenergy as a consumer of bifacial
solar panels does not fall within Section 201’s zone of interests. Id. at 15–19; Q Cells’ Resp. to
Invenergy’s Mot. for PI at 9. They argue that “the inclusion of ‘consumers’ within the 10 non-
Court No. 19-00192 Page 25
exhaustive factors guiding the President’s discretion to impose a remedy, does not confer standing
to sue.” Def.’s Resp. to Invenergy’s Mot. for PI at 18. The Government asserts that “Section 201
is not intended to provide protection for domestic consumers, who seek to purchase injurious goods
at the expense of an industry that faces serious injury and the prospect of economic extinction.”
Id. at 19 (citations and quotations omitted). See also Q Cells’ Resp. to Invenergy’s Mot. for PI at
9.
The court determines that Invenergy’s interests are “arguably within the zone of interests
to be protected or regulated by the statute . . . in question.” See Ass’n of Data Processing, 397
U.S. at 153. The zone of interests of Section 201 includes “the effect of the implementation of
actions under this section on consumers and on competition in domestic markets for articles,” 19
U.S.C. § 2253 (a)(2)(F)(ii), and the “efficient and fair administration of all actions taken for the
purpose of providing import relief,” 19 U.S.C. § 2253 (g)(1) (emphasis added). Thus, the text of
the statute itself shows that Congress wanted to ensure that the underlying Section 201 safeguard
measures and implementation of those measures reflect consideration of the interests of purchases
and users, here Invenergy, placing them within the “zone of interests” of the entire statutory
scheme. Furthermore, in these provisions, Congress has shown a concern for the fairness of
procedures administering safeguard duties that may impact consumers and domestic competition
for articles at issue. These explicit interests arguably include Invenergy’s interest in participating
in and being subject to fair and efficient administration of the Exclusion process and USTR’s own
procedures in implementing that process. This is particularly where, as is the case here, the
plaintiff “is not challenging the underlying Section 201 proceedings at the ITC, which authorized
the President to impose safeguard duties to protect domestic producers,” but instead is challenging
Court No. 19-00192 Page 26
the Withdrawal as violating the APA and USTR’s own procedures. See Invenergy’s Mot. for PI
at 14.
Contrary to the Government’s and Q Cells’ arguments, the zone of interests analysis is not
limited to the purpose or intended beneficiaries of the statute. The zone of interests is broad enough
to include a party’s interests directly implicated by Government action pursuant to the statute even
though that action intends to indirectly disadvantage that very party. See Nat’l Credit Union, 522
U.S. at 492–94. This is especially true in the context of an alleged APA violation. Plaintiffs
challenge USTR’s attempt to modify the Exclusion with no notice and no opportunity for
interested persons to participate. For that reason, USTR’s own regulatory actions regarding
bifacial modules confirm that purchasers and users of imported products have statutory standing
to challenge the lack of procedures. Whether the original Section 201 safeguard measure was
intended to protect the domestic industry, USTR set forth Exclusion Procedures under which
interested persons have rights, and these interested persons include consumers, purchasers, and
importers who did not file or otherwise participate in the exclusion process. Exclusion Procedures
at 6,670 (Feb. 14, 2018) (repeatedly referencing “interested persons” – not importers). 7 Therefore,
the court concludes that Invenergy, as an interested person, has properly asserted standing to
challenge the Withdrawal. See 5 U.S.C. § 702; 19 U.S.C. §§ 2251–54.
II. Alternatively, Invenergy, Joined by Plaintiffs-Intervenors, Collectively Have
Constitutional and Statutory Standing.
In the alternative, Invenergy, joined by the Plaintiff-Intervenors, collectively have
sufficient constitutional and statutory standing to establish conclusive jurisdiction by the court.
7
For these reasons, the Government’s reliance on McKinney, 799 F.2d 1544 (Fed. Cir. 1986) is
not persuasive. The McKinney court focused on the fact that consumers had only an abstract
interest in the statute, id., whereas here Invenergy participated in and is concretely affected by
USTR’s Withdrawal.
Court No. 19-00192 Page 27
“For all relief sought, there must be a litigant with standing, whether that litigant joins the lawsuit
as a plaintiff, co-plaintiff, or an intervenor as of right.” Town of Chester v. Laroe Estates, Inc.,
137 S. Ct. 1645, 1651 (2017). “To obtain injunctive or declaratory relief, it is sufficient that there
be at least one plaintiff with standing.” Citizens United for Free Speech II v. Long Beach Twp.
Bd. of Comm’rs, 802 F. Supp. 1223, 1231 (D.N.J. 1992). Because Plaintiffs (or Plaintiffs’
constituent members) include consumers, users, and importers of bifacial solar panels, at least one
of the plaintiffs has standing to bring this challenge to the Withdrawal.
The intervention of SEIA and EDF-R, both of which represent interests of importers in this
case, moots the Government’s standing argument regarding Invenergy, Clearway, and AES DE.
SEIA is the national trade association for the U.S. solar industry whose members include
importers, manufacturers, distributors, installers, and project developers. SEIA Resp. to
Invenergy’s PI at 1. “[A]n association has standing to bring suit on behalf of its members when:
(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks
to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the
relief requested requires the participation of individual members in the lawsuit.” Biotech. Indus.
v. District of Columbia, 496 F.3d 1362, 1369 (Fed. Cir. 2007) (quoting United Food & Com.
Workers v. Brown Group, 517 U.S. 544, 553 (1996)). Members of SEIA would have standing to
sue in their own right and are adversely affected or aggrieved by agency action. SEIA’s members
include importers, purchasers, and users of the imported bifacial products subject to the safeguard
action. The Withdrawal will subject importers to safeguard duties, thus likely increasing the cost
of importing bifacial solar products into the United States, increase their cost of doing business
and reduce their profits and business opportunities. SEIA’s organizational interests include
growing the solar energy industry for its importer-members and members using imported utility-
Court No. 19-00192 Page 28
grade panels. See SEIA Resp. to Invenergy’s PI at 1. Finally, although Invenergy, Clearway, AES
DE, and EDF-R are Plaintiffs in this action, the legal claims raised and the relief requested below
do not require the participation of individual SEIA members as plaintiffs because a broadly
applicable remedy to a procedural violation is sought. EDF-R is “is a U.S. importer, purchaser,
and user of bifacial solar panels at issue in the exclusion and the challenged withdrawal.” EDF-
R’s Mot. to Intervene at 2. Therefore, as an importer, EDF-R also faces direct cost increases due
to the Withdrawal.
SEIA and EDF-R moved to intervene prior to the issuance of the TRO, and the court
granted both motions prior to the hearing on Invenergy’s motion for a PI and this decision, and
thus prior to any decision on the merits in this case. The Government argues that a party may not
be added to a case to remedy a lack of standing, and thus a lack of jurisdiction. Def.’s Resp. to
SEIA’s Mot. to Intervene at 2. The Government further claims that “[b]ecause the [c]ourt lacks
jurisdiction to entertain Invenergy’s complaint, it likewise cannot grant intervention because
‘intervention will not be permitted to breathe life into a nonexistent law suit.’” Id. (citing
Aeronautical Radio Inc. v. FCC, 983 F.2d 275, 283 (D.C. Cir. 1993)). However, the very case that
the Government cites to support this proposition also states that “an ‘independent jurisdictional
basis’ for [Intervenor’s] challenge . . . might otherwise allow [Intervenor] to continue the action.”
Aeronautical Radio, 983 F.2d at 283. While it otherwise is true that “intervention cannot cure a
jurisdictional defect in the original suit,” it is also true that in the cases establishing that
proposition, the intervenors did not or could not file complaints which could separately be the basis
of subject matter jurisdiction. See Nucor Corp. v. United States, 31 CIT 1500, 1509–10, 516 F.
Supp. 2d 1348, 1356 (Ct. Int’l Trade 2007) (citing United States ex rel. Tex. Portland Cement Co.
Court No. 19-00192 Page 29
v. McCord, 233 U.S. 157, 163–64 (1914); Simmons v. Interstate Com. Comm’n, 716 F.2d 40, 46
(D.C. Cir. 1983)).
Here, SEIA and EDF-R have filed separate and distinct complaints on their own behalf
upon their intervention. See SEIA’s Compl., Oct. 30, 2019, ECF No. 43; EDF-R’s Compl., Nov.
8, 2019, ECF No. 79. SEIA and EDF-R thus would be entitled to challenge the Government’s
implementation of the Withdrawal independent of Invenergy’s complaint. Therefore, SEIA and
EDF-R do not depend on Invenergy’s standing nor do they attempt to intervene in order to “breathe
life into [the case.]” See Aeronautical Radio, 983 F.2d at 283. As analyzed further below, SEIA
and EDF-R have standing to challenge the implementation of the Withdrawal. Therefore, even if
Invenergy did not have standing, the court has jurisdiction over this case pursuant to 28 U.S.C. §
1581(i).
A. Plaintiff-Intervenors Have Constitutional Standing.
As discussed in more detail above, a party must show injury in fact, causation, and
redressability to have constitutional standing. See supra Section I.a. SEIA and EDF-R allege
concrete and particularized injuries that result from the implementation of the Withdrawal without
process. SEIA alleges economic, business, and reputational harms to its members stemming from
the Withdrawal, including that “SEIA members that import such products into the United States .
. . will be directly responsible for paying the increased duties,” “the resulting increased price for
bifacial CSPV products” will harm non-importing members of SEIA, and the Withdrawal “will
also adversely impact the development of solar energy in the United States by raising the cost of
solar projects and solar energy, contrary to the interests of SEIA and its members.” SEIA’s Compl.
¶ 16. EDF-R alleges that its “injuries related to the payment of duties (regardless of importer), the
impact on current and pending contractual relations, the loss of customer goodwill, and impacts
Court No. 19-00192 Page 30
on consumers’ ability to procure clean energy” constitute “injuries . . . sufficient to confer
standing.” EDF-R’s Supp. Resp. to Invenergy’s Mot. for PI at 3. These injuries result from a lack
of domestic production of bifacial panels “at commercial volume suitable for utility-scale projects
and can supply only a fraction of the projected demand for utility-scale solar projects overall.”
SEIA’s Compl. ¶ 16. These injuries constitute concrete and particularized harms to SEIA members
and to EDF-R directly.
As discussed extensively above, Plaintiffs’ injuries stem from USTR’s lack of process in
implementing the Withdrawal, and Plaintiffs’ corresponding requested relief is simply additional
process. Furthermore, unlike some of Invenergy’s alleged harms, SEIA and EDF-R face direct
increased prices of imports that do not depend on any relationship with third parties. Therefore,
SEIA and EDF-R’s injuries are fairly traceable to the Withdrawal and can be redressed by a
favorable decision from the court. In short, SEIA and EDF-R meet the requirements of
constitutional standing.
1. Plaintiff-Intervenors Have Statutory Standing.
SEIA and EDF-R also have statutory standing to challenge the Withdrawal because their
interests fall easily within the zone of interests of Section 201. In their complaints, SEIA and EDF-
R argue that, for reasons similar to Invenergy’s statutory standing, SEIA and its members are also
“arguably within the zone of interests to be protected or regulated” by Section 201. See Ass'n of
Data Processing, 397 U.S. at 153; SEIA’s Compl. ¶ 24; EDF-R’s Compl. ¶ 15.
Because Section 201 directs the President to consider the interests of consumers and
domestic markets and the implementation of regulations that provide for the “efficient and fair
administrations of all actions taken for the purpose of providing import relief,” 19 U.S.C. §
2253(g)(1) (emphasis added), SEIA’s members and EDF-R are arguably within the zone of
Court No. 19-00192 Page 31
interests of Section 201. See Lexmark, 572 U.S. at 130 (“In [the APA] context we have often
‘conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any doubt
goes to the plaintiff’” (citations omitted)). SEIA and EDF-R have interests as importers of bifacial
solar panels subject to duties that should be implemented through fair process of law. Therefore,
SEIA and EDF-R have constitutional and statutory standing and have filed complaints that supply
independent subject matter jurisdiction. Invenergy’s standing and SEIA and EDF-R’s standing
each, independently, provide the court with jurisdiction.
DISCUSSION
The court now turns to Invenergy’s motion for a PI to enjoin the Government from
implementing the Withdrawal. A PI is an “extraordinary” remedy, Mazurek v. Armstrong, 520
U.S. 968, 972 (1997), and is “never awarded as of right,” Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553 U.S. 674, í (2008)). The court weighs
four factors in ruling on a motion for a PI: (1) whether the plaintiff is likely to succeed on the
merits; (2) whether the plaintiff would suffer irreparable harm without the PI; (3) whether the
balance of hardships favors the plaintiff; and (4) whether the PI would serve the public interest.
See, e.g., Winter, 555 U.S. at 20; Silfab Solar, Inc. v. United States, 892 F.3d 1340, 1345 (Fed.
Cir. 2018); Nat. Res. Def. Council, 331 F. Supp. 3d at 1362; Corus Grp. PLC v. Bush, 26 CIT 937,
942, 217 F. Supp. 2d 1347, 1353 (2002). Upon consideration of the parties’ briefs, accompanying
submissions, and witness testimony, the court concludes that all four factors weigh in favor of the
issuance of a PI. The court thus grants the motion for a PI.
I. Plaintiffs Have a Fair Likelihood of Prevailing on the Merits of the APA Claim
The party seeking a PI must “demonstrate that it has at least a fair chance of success on the
merits for a preliminary injunction.” Silfab Solar, 892 F.3d at 1345 (quoting Wind Tower Trade
Coal. v. United States, 741 F.3d 89, 96 (Fed. Cir. 2014)). See also Nat. Res. Def. Council, 331 F.
Court No. 19-00192 Page 32
Supp. 3d at 1362. Invenergy sets forth three claims for which it argues it has a strong likelihood
of success. Invenergy’s Mot. for PI at 16. First, Invenergy argues that USTR’s Withdrawal, “with
no advance notice or opportunity for affected parties to provide their views, was a clear violation
of the APA’s requirements. . .” Id. at 16–17. Second, Invenergy argues that the Withdrawal
violated Section 201 and USTR’s own written procedures. 8 Id. at 23. Third, Invenergy contends
that the Withdrawal violated its constitutional due process rights under the Fifth Amendment. Id.
at 28. Finding that Invenergy has established with a fair likelihood of success that USTR violated
notice-and-comment rulemaking requirements under the APA, the court need not now reach
Invenergy’s Section 201 and constitutional claims.
A. USTR Likely Violated APA Rulemaking Requirements.
To establish that USTR violated the APA in implementing the Withdrawal, Invenergy,
joined by SEIA, contends that (1) USTR is an agency under the terms of the APA; (2) the
Withdrawal constituted agency rulemaking, not an adjudication; (3) the Withdrawal violated APA
rulemaking requirements; (4) the Withdrawal was arbitrary and capricious; and (5) the Withdrawal
does not fall within the APA’s foreign affairs exception. See Invenergy’s Mot. for PI DWí
Invenergy, Clearway, and AES DE’s Supp. Resp. to Mot. for PI DWíSee also SEIA’s Resp. to
Invenergy’s Mot. for PI DWíThe court addresses each in turn.
1. USTR Is an Agency Covered by the APA.
8
Invenergy argues that USTR violated Section 201 and its own written procedures. According to
Invenergy, “USTR’s written procedures only authorize it to grant exclusions, not withdraw them.
USTR ‘withdrew’ the Exclusion in violation of these procedures.” Invenergy’s Mot. for PI at
23. Invenergy further contends that “USTR [] violated several safeguard statutory procedures,
including those restricting its authority to ‘modify’ any safeguard measure.” Id. (citing 19 U.S.C.
§§ 2253(g), 2254(a)–(b)). Invenergy argues that the statutory language “mandates that no such
safeguard action may be ‘reduced, modified, or terminated’ unless the President first receives
the [ITC’s] report issued as part of its statutory ‘mid-term’ review.” Id. at 27 (citing 19 U.S.C.
§ 2254(a)–(b)).
Court No. 19-00192 Page 33
To prove a likelihood of success on its claim that USTR violated the APA, Invenergy must
first establish that USTR is in fact an agency bound by the APA here. Invenergy contends that
USTR meets the definition of agency set forth in the APA: “each authority of the Government of
the United States, whether or not it is within or subject to review by another agency.” Invenergy’s
Mot. for PI at 17 (quoting 5 U.S.C. § 701(a)(1)). See also SEIA’s Resp. to Invenergy’s Mot. for
PI at 7. Invenergy cites, moreover, the Federal Register’s description of USTR, which states that
“[t]he Trade Act of 1974 . . . established [USTR] as an agency of the Executive Office of the
President charged with administering the trade agreements program.” Invenergy’s Mot. for PI at
17 (quoting Trade Representative, Office of United States, Federal Register,
https://www.federalregister.gov/agencies/trade-representative-office-of-united-states (last visited
Dec. 4, 2019)). Invenergy also notes that USTR refers to itself as an agency on its website. Id.
(citing About Us, Office of the U.S. Trade Representative, https://ustr.gov/about-us (last visited
Dec. 4, 2019) (“USTR Website”) (stating that USTR “is an agency of more than 200 committed
professionals with decades of specialized experience in trade issues and regions of the world.”)).
Invenergy, moreover, contends that the court has recognized USTR as an agency subject to the
APA. Id. (citing Tembec, Inc. v. United States, 30 CIT 958, 959, 1002, 441 F. Supp. 2d 1302,
1306, 1343 (2006)).
The Government disputes Invenergy’s contention that USTR is an agency bound by APA
requirements. The Government instead argues that “because the USTR is acting pursuant to the
President’s delegation of authority when administering exclusions to the [S]ection 201 safeguard
measure, the USTR is not acting as an agency for APA purposes.” Def.’s Supp. Resp. to
Invenergy’s Mot. for PI at 2 (citing Gilda, 446 F.3d 1271). The Government then argues that
because the President is not bound by the APA, USTR is not bound. Id. (citing Franklin v.
Court No. 19-00192 Page 34
Massachusetts86í (1992), Motion Sys. Corp. v. Bush, 437 F.3d 1356, 1359
(Fed. Cir. 2006) (en banc) (per curiam)).
The court concludes that, with respect to the APA claim under review, USTR constitutes
an agency. USTR defines itself as a government agency. USTR Website, supra. See also
Organization, Office of the U.S. Trade Representative, https://ustr.gov/about-us/organization (last
visited Dec. 4, 2019). The Federal Register, moreover, includes in USTR’s description that it was
created as an “agency.” Trade Representative, Office of United States, Federal Register, supra.
The Trade Act of 1974 itself describes USTR’s “interagency” role, as well as how it should work
with “other Federal agencies.” 19 U.S.C. § 2171. The plain language of the APA also makes clear
that it applies to “each authority of the Government of the United States, whether or not it is within
or subject to review by another agency.” 5 U.S.C. § 701(b)(1). The Trade Act of 1974 repeatedly
refers to the “authority” given to USTR. 19 U.S.C. § 2171. Even Defendant-Intervenor Q Cells
describes USTR as an administrative agency. Q Cells’ Supp. Resp. to Invenergy’s Mot. for PI at
9 (noting that “[a]dministrative agencies possess inherent authority to reconsider their decisions .
. . [and] [t]here is nothing in the statute that clearly deprives the USTR of that default authority.”)
(emphasis added) (citations omitted)).
The court has also previously held that it has jurisdiction over a plaintiff’s APA claims
against USTR challenging its implementation of an ITC affirmative determination of threat of
injury from imports. Tembec, 441 F. Supp. 2d at 1318. There, the court held that “this case
fundamentally concerns the authority of the USTR under section 129(a)—a question of domestic
administrative and trade law that lies within this Court's subject matter jurisdiction.” Tembec, 441
F. Supp. 2d at 1326. Safeguard measures under Section 201, moreover, are intended to protect
Court No. 19-00192 Page 35
domestic industry from injury or threat of injury from increased imports. See 19 U.S.C. §§
í.
The Government’s contention that USTR is exempt from APA requirements because the
President delegated to USTR the authority to implement exclusions is unavailing. The
Government states that it is “well established that the President is not an ‘agency’ within the
meaning of the APA.” Def.’s Supp. Resp. to Invenergy’s Mot. for PI at 2 (citing Franklin v.
Massachusetts, 505 U.S. at í; Motion Sys., 437 F.3d at 1359). The court agrees with the
Government that the President is not bound by the APA. The facts before the court, however,
require no such finding for Invenergy to establish that the APA applies to USTR. Here, it is
undisputed that Section 201 gave the President the authority to implement the safeguard measure.
See 19 U.S.C. §§ 2253. Pursuant to this authority, the President issued the Presidential
Proclamation, which delegated authority to USTR to design and implement a process for requests
for exclusions. Unlike the process for implementing the safeguard duties, which required final
action by the President, the President fully delegated authority of the exclusion process to USTR.
See Presidential Proclamation (providing that “the USTR shall publish . . . procedures for requests
for exclusion [and] [i]f the USTR determines, after consultation with the Secretaries of Commerce
and Energy, that a particular product should be excluded, the USTR is authorized . . . to modify
the [Harmonized Tariff Schedule of the United States (“HTSUS”)] provisions . . . to exclude such
particular product. . .”). USTR then issued its own procedures, Exclusion Procedures, excluded
the bifacial solar panels at issue here from safeguard duties, Exclusion, and issued the Withdrawal.
USTR’s actions thus eliminated and then attempted to reinstate (blocked by this court’s TRO)
safeguard duties, without any additional action required by the President or Congress.
Court No. 19-00192 Page 36
The cases cited by the Government are inapposite because, unlike here, they do not involve
final agency action. In Franklin, the Supreme Court held that the APA did not apply because the
statutory scheme required that the President, not the Secretary of Commerce, take the final action
by submitting a statement to Congress. 86DWí In Motion Systems, moreover, the
Federal Circuit made clear that while the President’s actions could not be challenged under the
APA, the “Trade Representative’s actions cannot be challenged because they were not final,” 437
F.3d at 1362 (emphasis added), thus suggesting that, by contrast, a final action by USTR could be
challenged under the APA. In neither case did the courts suggest the APA would not apply where
“an authority of the Government,” 5 U.S.C. § 701(b)(1) other than the President took final action,
and the Government has not argued that USTR’s Exclusion and subsequent Withdrawal were not
final. The court is thus unpersuaded by the Government’s argument and concludes that USTR is,
for the purposes of the Exclusion and the Withdrawal, an agency bound by the requirements of the
APA.
2. The Exclusion Was a Rulemaking, Not an Adjudication, and the
Withdrawal Is Thus Also a Rulemaking.
The parties next dispute whether USTR conducted a rulemaking or an adjudication. The
APA provides that a “rule”:
. . . means the whole or a part of an agency statement of general or particular applicability
and future effect designed to implement, interpret, or prescribe law or policy or describing
the organization, procedure, or practice requirements of an agency and includes the
approval or prescription for the future of rates, wages, corporate or financial structures or
reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of
valuations, costs, or accounting, or practices bearing on any of the foregoing . . .
5 U.S.C. § 551(4). “Rulemaking,” moreover, “means agency process for formulating, amending,
or repealing a rule.” 5 U.S.C. § 551(5) (emphasis added).
Court No. 19-00192 Page 37
Invenergy contends that USTR’s Withdrawal constitutes a rule subject to notice-and-
comment requirements under the APA. Invenergy’s Mot. for PI at 18. See also SEIA’s Resp. to
Invenergy’s Mot. for PI at 7. Invenergy argues that the Withdrawal falls within the APA’s
definition of a rule and notes that the APA provides that rescinding a prior rule is rulemaking.
Invenergy’s Mot. for PI at 17–18, 21 (citing 5 U.S&†86&†  í  Perez v. Mortg.
Bankers Ass’n, 135 S. Ct. 1199, 1206 (2015)). Citing to International Custom Products, Inc. v.
United States, 32 CIT 302, 312, 549 F. Supp. 2d 1384 í   ZKLFK GLVFXVVHV WKH
difference between rulemaking and adjudication, 9 Invenergy notes that adjudication “involves the
application of regulatory requirements to not only specific products, but to specific parties.”
Invenergy, Clearway, and AES DE’s Supp. Resp. to Mot. for PI at 7. The Withdrawal, Invenergy
asserts, does not apply to a specific party, but instead applies broadly and prospectively. Id.
Invenergy warns that “[i]f an agency could avoid APA requirements by simply relabeling its action
as an ‘adjudication’ or ‘interpretation,’ that would render the APA dead letter.” Id.
SEIA, likewise, contends that USTR undertook rulemaking, not an adjudication. In
addition to Invenergy’s arguments, SEIA also notes that the “[E]xclusion prospectively changed
the applicable tariff rate for all bifacial solar modules and was effectuated through modification to
9
“Rulemaking is defined as the ‘agency process for formulating, amending, or repealing a rule,’
and a rule is further defined as ‘an agency statement of general or particular applicability and
future effect designed to implement, interpret, or prescribe law or policy. . . .’” Int’l Custom
Prod., 549 F. Supp. 2d at 1395 (quoting 5 U.S.C. § 551(4)–(5)). “The term ‘rulemaking’ is used
in contrast to an ‘adjudication,’ to which section 553 does not apply. ‘Two principle
characteristics distinguish rulemaking from adjudication. First, adjudications resolve disputes
among specific individuals in specific cases . . . . Second, because adjudications involve concrete
disputes, they have an immediate effect on specific individuals . . . . Rulemaking, in contrast, is
prospective, and has a definitive effect on individuals only after the rule subsequently is
applied.’” Id. at 1395–96 (quoting Yesler Terrace Comm’y Council v. Cisneros, 37 F.3d 442,
448 (9th Cir. 1994)).
Court No. 19-00192 Page 38
the notes of the HTSUS resulting in a change of classification for the imported modules.” SEIA’s
Resp. to Invenergy’s Mot. for PI at 8 (citing Exclusion). SEIA notes that there were no
determinations regarding individual parties and no retroactive decisions for either the exclusions
or Withdrawal. Id. (citing Exclusion Procedures). SEIA also highlights the fact that USTR opened
the docket on the “Federal eRulemaking Portal” for the first and second round of exclusions and
the Withdrawal, where it had a choice between a rulemaking and non-rulemaking docket on
regulations.gov. Id.
The Government disputes Invenergy’s characterization of the Withdrawal as a rule and
instead states that it was an informal adjudication. The Government asserted that, “USTR’s
determination that a specific product is ineligible for an exclusion is not ‘rulemaking’ for purposes
of 5 U.S.C. § 553’s notice and comment requirements” because “the ‘fact that an order rendered
in adjudication may affect agency policy and have general prospective application does not make
it rulemaking subject to APA section 553 notice and comment.’” Def.’s Resp. to Invenergy’s Mot.
for PI at 22 (quoting POM Wonderful, LLC v. FTC, 777 F.3d 479, 497 (D.C. Cir. 2015) (internal
citations omitted)). The Withdrawal, the Government argued, “expressed no new rule of law, but
only applied the facts to [S]ection 201 and the President’s guidance to determine that bifacial solar
products not be excluded from [S]ection 201 safeguards.” Id. Furthermore, the Government
responds to SEIA’s argument that the amendment of the HTSUS through the Exclusion and the
Withdrawal indicates that those are rulemakings by stating that “modifications to the HTSUS are
routinely made without notice and comment” and to hold these modifications as rulemakings
“would require the President to employ APA notice and comment rulemaking procedures for every
modification to the HTSUS.” Def.’s Supp. 5HVSWR,QYHQHUJ\¶V0RWIRU3,DWí
Court No. 19-00192 Page 39
Q Cells, likewise, rejects Invenergy’s argument that the Exclusion or the Withdrawal were
rulemaking and argues the Withdrawal was an informal adjudication. 10 According to Q Cells,
Invenergy “‘fails to recognize the time-honored distinction between rulemaking and adjudication,
the former based on legislative facts and the latter based on adjudicative facts.’” Q Cells’ Resp.
to Invenergy’s Mot. for PI at 12 (quoting Heartland Reg’l Med. Ctr. v. Leavitt, 511 F. Supp. 2d
46, 52 (D.D.C. 2007)). The Withdrawal, Q Cells contends, did not “promulgat[e] policy-based
standards of general import,” did not fill any “statutory gaps,” excluded “particular products,” and
acted within its discretion in choosing “adjudication for this effort.” Id. DW í (citations
omitted).
The court concludes that the Exclusion constituted agency rulemaking. Repealing the rule,
therefore, also requires rulemaking subject to APA notice and comment. Perez, 135 S. Ct. at 1206.
The President delegated the authority to USTR to decide its procedures for the implementation of
exclusions. Presidential Proclamation. USTR then published its procedures in the Federal
Register, inviting “interested persons to submit comments identifying a particular product for
exclusion from the safeguard measure and providing reasons why the product should be excluded.”
Exclusion Procedures at 6671. USTR provided a deadline for the exclusion requests and a deadline
for comments on those requests. Id. at 6,672. In other words, USTR outlined the process for its
notice-and-comment rulemaking. USTR, moreover, opened a docket on the “Federal
eRulemaking Portal,” choosing a rulemaking docket over a non-rulemaking docket. Before the
10
Q Cells contends that, “[t]o the extent the APA applies at all here, the Withdrawal constituted
an informal adjudication . . . .” Q Cells’ Resp. to Invenergy’s Mot. for PI at 12. Because the
statute did not mandate a hearing, Q Cells argues that USTR could “define its own procedures
for conducting an informal adjudication.” Id. (citing PBGC v. LTV Corp., 496 U.S. 633, 655í56
(1990)). As the court addresses, however, USTR did adopt its own procedures -- rulemaking
procedures -- and thus informal adjudication cannot be used to excuse USTR’s failure to follow
the APA process it adopted.
Court No. 19-00192 Page 40
court is not whether USTR could have, in the first instance, adopted a procedure for adjudication
of the exclusions, as Q Cells contends. See Q Cells’ Resp. to Invenergy’s Mot. for PI at 14 (quoting
POM Wonderful, 777 F.3d at 497 (“[T]he choice between rulemaking and adjudication lies in the
first instance within the agency’s discretion.”)). Regardless of whether USTR could have set forth
procedures for adjudication in the first instance, it did not. Instead, it made clear in the Exclusion
Procedures its adoption of notice-and-comment rulemaking.
Additionally, that the Exclusion and Withdrawal required an accompanying modification
to the HTSUS is indicative of the determination that these actions are rulemakings. See Int’l
Custom Prod., 549 F. Supp. 2d at í (“Rulemaking, in contrast, is prospective, and has a
definitive effect on individuals only after the rule subsequently is applied.” (citations omitted)).
The modification of the HTSUS underlines the prospective nature of these decisions and has the
force of law. See 5 U.S.C. § 551(4) (defining a rule as having “future effect” and “prescrib[ing]
the law”). Unlike specifically and retroactively applicable adjudications, here, the Exclusion and
Withdrawal constitute broadly applicable, prospective changes to the tariff schedule that impact
all future imports of solar products by any and all importers. See Int’l Custom Prod., 549 F. Supp.
2d at í. Finding that USTR’s modification of the HTSUS was undertaken through notice-
and-comment rulemaking, moreover, does not mean that all future modification of the HTSUS
will require notice-and-comment rulemaking, as the Government contends. Def.’s Supp. Resp. to
Invenergy’s Mot. for PI at 2. As noted above, USTR must follow notice-and-comment rulemaking
because the President gave USTR the discretion to design the Exclusion process, and USTR chose
prospective, generally applicable, notice-and-comment rulemaking. See Pom Wonderful, 777
F.3d at 497.
Court No. 19-00192 Page 41
The product-specific nature of the Exclusion and subsequent Withdrawal, moreover, did
not make USTR’s actions adjudicatory, as Q Cells contends. See Q Cells’ Resp. to Invenergy’s
Mot. for PI at 13. Underlining that the Exclusion was not specific to one party, USTR instructed
parties requesting an exclusion not to “identify the product at issue in terms of the identity of the
producer, importer, or consumer.” Exclusion Procedures at 6,671. Thus, the process was not
designed “to resolve disputes among specific individuals in specific cases,” as an adjudication
would. Int’l Custom Prod., 549 F. Supp. 2d at 1395. Instead, it was designed to apply to particular
products, regardless of the producer, importer, or consumer.
The court, moreover, is unpersuaded by the Government’s efforts to analogize the case
before it to the adjudication in POM Wonderful, 777 F.3d 478. See Def.’s Resp. to Invenergy’s
Mot. for PI at 22. In POM Wonderful, the Federal Trade Commission (“FTC”) filed an
administrative complaint alleging “false, misleading, and unsubstantiated representations in
violation of the Federal Trade Commission Act.” 777 F.3d at 484. The FTC then conducted
administrative proceedings, including an administrative trial at which an administrative law judge
made findings of fact. Id. at 488. POM Wonderful bears little resemblance to the facts before us.
The Government has made no showing of administrative proceedings below, much less of one
involving an administrative trial and administrative law judge. Here, by contrast, based on the
exclusion requests and comments, USTR granted the Exclusion for bifacial solar panels, without
indicating how, if at all, it could withdraw the Exclusion. Exclusion DWí%HFDXVHUSTR
implemented the Exclusion through notice-and-comment rulemaking, the APA requires that
USTR “use the same procedures when [it] amend[s] or repeal[s] a rule as [it] used to issue the rule
in the first instance.” Perez, 135 S. Ct. at 1206 (citing FCC v. Fox Television Stations, 556 U.S.
502, 515 (2009) (noting that “the APA ‘make[s] no distinction . . .between initial agency action
Court No. 19-00192 Page 42
and subsequent agency action undoing or revising that action’”)). Thus, the process for repealing
a rule made through notice-and-comment rulemaking is more notice-and-comment rulemaking.
See Hou Ching Chow v. Att’y Gen., 362 F. Supp. 1288, 1292 (D.D.C. 1973); Clean Air Council
v. Pruitt, 862 F.3d 1, 8о9 (D.C. Cir. 2017). Because the Exclusion process constituted rulemaking,
so too must the Withdrawal. In sum, the court concludes, based on the procedures set forth in
USTR’s notice in the Federal Register, the prospective and broadly applicable nature of the
Exclusion, and the lack of evidence of an adjudication below, that the Withdrawal constituted
agency rulemaking.
3. The Withdrawal Likely Violated APA Rulemaking Requirements.
Invenergy next contends that the Withdrawal violated the APA’s rulemaking requirements
because the Withdrawal “was taken with no advance notice or an opportunity for affected parties
to comment.” Invenergy’s Mot. for PI at 17. As Invenergy argues, “[t]he APA requires an agency
to give advance notice of a proposed rulemaking and an opportunity for all ‘interested persons’ to
comment. But USTR did not publish advance notice of the Withdrawal in the Federal Register or
provide any opportunity for affected parties to comment before it was made final.” Id. at 20 (citing
 86& ††  E í F   6(,$ OLNHZLVH DUJXHV WKDW EHFDXVH ³>W@KH $3$ UHTXLUHV QRWLFH-and
comment procedures to be followed . . . when [rules] are amended or repealed . . . USTR’s failure
to follow notice-and-comment rulemaking to withdraw the bifacial exclusion was therefore
unlawful.” SEIA’s Resp. to Invenergy’s Mot. for PI at 7. Invenergy and SEIA both cite
Association of Private Sector Colleges and Universities v. Duncan)Gí '&
Cir. 2012), for the proposition that an “agency violates the APA when it does not give notice of a
regulation, thus depriving the public of the chance to comment on those provisions.” Invenergy’s
Mot. for PI at 20; SEIA’s Resp. to Invenergy’s Mot. for PI at 9. Invenergy underlines the
Court No. 19-00192 Page 43
importance of notice-and-comment rulemaking in our regulatory system, as it “ensure[s] that
agency regulations are tested via exposure to diverse public comment,” “ensure[s] fairness to
affected parties,” and “give[s] affected parties an opportunity to develop evidence . . . to support
their objections to the rule and thereby enhance judicial review.” Invenergy’s Mot. for PI at 20
(quoting Envtl. Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005)).
The Government, for its part, focuses its argument on its position that APA rulemaking
requirements do not apply to USTR’s Withdrawal. Def.’s Resp. to Invenergy’s Mot. for PI at
21о22; Def.’s Supp. Resp. to Invenergy’s Mot. for PI at 2. Q Cells makes a different argument. It
contends that SEIA, of which Invenergy is a member, “did not treat the written notice-and-
comment period as the exclusive opportunity to present its views to USTR regarding the bifacial
exclusion request, but rather as one step in an extended process with multiple, meaningful
opportunity to present its views.” Q Cells’ Resp. to Invenergy’s PI at 17. Q Cells quotes SEIA’s
statement that it “relentlessly lobbied the Administration to grant additional exemptions, with a
particular focus on bifacial modules,” and notes additional letters from SEIA to USTR. Id. at 17–
18.
As established above, the Withdrawal constituted agency rulemaking. The APA sets forth
agency rulemaking requirements in 5 U.S.C. § 553. It requires notice of proposed rulemaking in
the Federal Register and the opportunity for interested persons “to participate in the rulemaking
through submission of written data, views, or arguments with or without opportunity for oral
presentation.” 5 U.S.C. 553(c). 11 At this preliminary stage in the litigation, the Government does
11
“The required publication or service of a substantive rule shall be made not less than 30 days
before its effective date.” 5 U.S.C. § 553(d). Plaintiffs initially challenged USTR’s failure to
comply with the 30-day notice requirement. Invenergy’s Compl. ¶ 58. The Government then
moved the court for leave to defer the implementation date of the Withdrawal to 30 days after
Court No. 19-00192 Page 44
not refute Invenergy’s contention that USTR did not engage in notice-and-comment procedures to
implement the Withdrawal, and as the court addressed above, USTR was required to follow such
procedures. Q Cells argument, moreover, that SEIA’s engagement in lobbying after USTR
implemented the Exclusion undercuts the need for notice-and-comment rulemaking is not a legal
argument, and Q Cells provides no legal authority for this contention. See Hearing; Q Cells’ Resp.
to Invenergy’s Mot. for PI at 17–18. The purpose of the APA is, in part, “to ensure that agency
regulations are tested via exposure to diverse public comment.” Envtl. Integrity Project, 425 F.3d
992, 996 (D.C. Cir. 2005) (emphasis added) (citations omitted). Whether some or all the parties
in this matter also communicated outside of a formal process with USTR to share their opinions
on the Exclusion and the Withdrawal has no bearing on whether USTR was required to follow
notice-and-comment rulemaking procedures. The court concludes that, at this preliminary stage,
USTR was so required, and Invenergy has shown that USTR likely did not follow such procedures.
4. The Withdrawal Was Likely Arbitrary and Capricious.
In addition to its argument that USTR violated APA rulemaking procedure in
implementing the Withdrawal, Invenergy also contends that the Withdrawal was arbitrary and
capricious in violation of the APA’s substantive requirements: the Withdrawal lacks “any
supporting reasoning or rationale” and thus should be “‘[held] unlawful and set aside.’”
Invenergy’s Mot. for PI at 21 (quoting 5 U.S.C. § 706(2)(a)). Invenergy characterizes USTR’s
explanation for the Withdrawal as conclusory, quoting USTR’s Withdrawal language that
“‘maintaining the exclusion will undermine the objectives of the safeguard measure.’” Id. at 22
(quoting Withdrawal). This language, Invenergy asserts, does not show “reasoned decision-
the publication of the rule. Def.’s Mot. to Defer Implementation. The court granted the motion,
thus mooting this issue.
Court No. 19-00192 Page 45
making, which requires the agencies to show the connection between ‘facts found’ and the ‘choice
made,’ and ‘articulate a satisfactory explanation for its action.’” Id. (quoting Motor Vehicle Mfrs.,
463 U.S. at 43).
Q Cells rejects Invenergy’s contention that the Withdrawal substantively violated the APA
because such position “ignore[s] the special, limited standard of review in global safeguard cases.”
Q Cells’ Resp. to Invenergy’s Mot. for PI at 10. Given that the President imposed the global
safeguard measure pursuant to Section 201, Q Cells claims that the court’s review is “highly
circumscribed,” id. at 11, and limited to “a clear misconstruction of the governing statute, a
significant procedural violation, or action outside delegated authority,” id. (quoting Corus, 217 F.
Supp. 2d at 1352). Q Cells notes that the Federal Circuit has found its limited review of the
President’s actions was “‘equally applicable to the [ITC] in its ‘escape clause’ functioning.’” Id.
(quoting Maple Leaf Fish Co. v. United States, 762 F.2d 86, 90 (Fed. Cir. 1985)). The Government
does not address Invenergy’s arbitrary and capricious argument, instead maintaining that the APA
does not apply.
The APA requires the court to “hold unlawful and set aside agency action, findings, and
conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(a). As the November 13, 2019 PI hearing and the
Withdrawal itself make clear, the facts on which USTR relied to implement the Withdrawal remain
unknown to all but USTR; they are neither publicly available nor available to this court. USTR
has not explained the facts on which it relied or the reasoning behind its decision. See FCC v.
Fox, 556 U.S. at 515. Nor did USTR “‘display awareness that it is changing position and show
that there are good reasons for the new policy.’” Invenergy’s Mot. for PI at 23 (quoting Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016)). Corus, moreover, prescribed limited
Court No. 19-00192 Page 46
judicial review of the ITC’s decision where Section 201 granted the ITC and the President
substantial discretion. 217 F. Supp. 2d at 1352. Corus does not stand for the proposition that
USTR, with delegated authority from the President, can choose to take a final action through
reasoned decision making under the APA but then divest itself of APA obligations to undo the
action. See id. The court thus concludes that Invenergy has a fair likelihood of success on the
merits of its claim that the Withdrawal was arbitrary and capricious. 12
5. The Withdrawal Does Not Fall Within the APA’s Foreign Affairs
Exception.
Q Cells argues in the alternative that “[i]f the [c]ourt disagrees . . . that the Withdrawal
was an adjudicatory action . . . and . . . that the Withdrawal is subject to review only under the
limited conditions . . . in Corus, . . . Invenergy’s claims nonetheless fail because USTR’s action
qualifies under the ‘foreign affairs function’ exemption” of 5 U.S.C. § 553(a)(1). Q Cells’ Resp.
to Invenergy’s PI at 20. Q Cells contends that the global safeguard actions are of a “highly
discretionary kind -- involving the President and foreign affairs.” Id. (quoting Maple Leaf, 762
F.2d at 89). Def.’s Resp. to Invenergy’s Mot. for PI at 21о22. According to Q Cells, the Exclusion
and Withdrawal “clearly fall[] within the scope of the foreign affairs exemption,” without citing
caselaw to support this proposition. Id. at 21. The Government makes no similar argument.
Invenergy counters that Q Cells is “not the appropriate party to assert that an action falls within
the United States’ ‘foreign affairs function,’” but that regardless, the Withdrawal does not fall
within the APA’s exception. Invenergy, Clearway, and AES DE’s Supp. Resp. to Mot. for PI at
8. Invenergy notes that “agency actions imposing or changing tariffs and duties are subject to
12 The court offers no view as to whether, ultimately, with appropriate notice and comment, USTR
could implement the Withdrawal through “reasoned decisionmaking.” See Motor Vehicle
Mfrs., 463 U.S. at 52.
Court No. 19-00192 Page 47
judicial challenge, including under the APA,” and distinguishes cases cited by Q Cells as agency
actions taken pursuant to treaty obligations. Id. (comparing Canadian Lumber, 517 F.3d 1319 with
Am. Ass’n of Exps. & Imps.-Textile & Apparel Grp. v. United States, 751 F.2d 1239 (Fed. Cir.
1985)).
A rulemaking is exempt from the procedural requirements of the APA where it “involved
. . . a . . . foreign affairs function of the United States.” 5 U.S.C. § 553(a)(1). The foreign affairs
exception, like all similar exceptions to the APA’s notice-and-comment requirements, is quite
narrow. See also New Jersey Dept. of Envtl. Protection v. EPA, 626 F.2d 1038, 1045 (D.C. Cir.
1980); City of New York v. Permanent Mission of India to United Nations, 618 F.3d 172, 201 (2d
Cir. 2010) (“We have stated that exceptions to [section] 553 should be narrowly construed and
only reluctantly countenanced.” (citations omitted)). The legislative history provides:
The phrase “foreign affairs functions,” used here and in some other provisions of the
bill, is not to be loosely interpreted to mean any agency operation merely because it,
is exercised in whole or part beyond the borders of the United States but only those
“affairs” which so affect the relations of the United States with other governments
that, for example, public rule-making provisions would provoke definitely
undesirable international consequences.
H.R. Rep. No. 79-1980, at 257 (1946). The foreign affairs function “the exception applies ‘only
‘to the extent’ that the excepted subject matter is clearly and directly involved’ in a ‘foreign affairs
function.’” Mast Industries v. Regan, 8 CIT 214, 231, 596 F. Supp. 1567, 1582 (1984) (citing to
H.R. Rep. No. 79-1980, at 275). “For the exception to apply, the public rulemaking provisions
should provoke definitely undesirable international consequences.” Zhang v. Slattery, 55 F.3d
732, 744 (2d Cir. 1995) (citation omitted). “The courts in analyzing the section 553 exemptions,
have continually stated that any claims of exemption from rulemaking procedures will be
construed narrowly and granted reluctantly.” Mast, 596 F. Supp. At 1582 (citations omitted). As
the Mast court stated, “[t]he exception cannot apply to functions merely because they have impact
Court No. 19-00192 Page 48
beyond the borders of the United States.” Id. at 1581 (“In our complex world there are very few
purely internal affairs” (citing Briehl v. Dulles, 248 F.2d 561, 591 (D.C. Cir. 1957))).
Unlike previous uses of the foreign affairs function exception, here, the Government did
not explicitly rely on this exception nor does this rulemaking involve diplomatic functions, military
functions, or other sensitive areas of foreign policy. Instead, the Exclusion and Withdrawal
constitute a routine change to the tariff rates imposed on imported goods by the United States as
reflected in the HTSUS. The Government, moreover, has not raised this argument, and the cases
cited by Q Cells are inapposite because they involve agency action pursuant to treaty obligations
and not agency action pursuant to a U.S. statutory authority. See, e.g., Am. Ass’n of Exps. &
Imps., 751 F.2d at 1239.
III. Invenergy Is Likely to Suffer Irreparable Harm Without a PI.
The court now considers whether Plaintiffs are likely to suffer irreparable harm in the
absence of a PI enjoining the Government from implementing the Withdrawal. A harm is
irreparable when “no damages payment, however great, could address [it.]” Celsis In Vitro, Inc.
v. CellzDirect, Inc., 664 F.3d 992, 930 (Fed. Cir. 2012). The standing inquiry focuses on whether
the court must act now to prevent a loss that cannot later be remedied. See, e.g., CPC Int’l Inc. v.
United States, 19 CIT 978, 979, 896 F. Supp. 1240, 1242о44 (1995) (irreparable harm includes
“costs, expenditures, business disruption or other financial losses” that plaintiff has “no legal
redress to recover in court”). To determine whether an injury is irreparable, the court analyzes
the magnitude and immediacy of the injury, and the inadequacy of future relief. Queen’s Flowers
de Colombia v. United States, 20 CIT 1122, 1125, 947 F. Supp. 503 (1996). Harm such as “loss
of goodwill, damage to reputation, and loss of business opportunities are all valid grounds for
finding irreparable harm.” Celsis In Vitro, 664 F.3d at 930.
Court No. 19-00192 Page 49
Furthermore, unlike injury for constitutional standing purposes, a procedural injury can
itself constitute irreparable harm. A procedural violation can give rise to irreparable harm
justifying injunctive relief because lack of process cannot be remedied with monetary damages or
post-hoc relief by a court. Permitting “the submission of views after the effective date of a
regulation is no substitute for the right of interested persons to make their views known to the
agency in time to influence the rule making process in a meaningful way.” Am. Fed’n of Gov’t
Emp v. Block, 655 F.2d 1153, 1158 (D.C. Cir. 1981) (internal citation omitted); see also New
Jersey Dept. of Envtl. Protection, 626 F.2d at 1049 (“Section 553 is designed to ensure that affected
parties have an opportunity to participate in and influence agency decision making at an early
stage, when the agency is more likely to give real consideration to alternative ideas.”). Once the
regulatory change “has begun operation as scheduled . . . [the Agency] is far less likely to be
receptive to comments.” N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 18 (D.D.C. 2009).
A failure to comply with APA procedural requirements therefore itself causes irreparable harm
because “the damage done by [the Agency’s] violation of the APA cannot be fully cured by later
remedial action.” Id.
Invenergy argues that it has suffered and faces irreparable harm from USTR’s procedural
violation of the APA in implementing the Withdrawal without the notice-and-comment procedures
afforded in issuing the initial Exclusion. Invenergy’s Mot. for PI at 30о31. As discussed more
extensively above in the context of injury for standing purposes, Invenergy has alleged economic
harm in the increased price of bifacial panels because of the Withdrawal, which it also claims
causes irreparable harm. Id. In addition, Invenergy alleges business and reputational harms that
are irreparable. Invenergy, Clearway, and AES DE’s Supp. Resp. to Mot. for PI at 4. “If the
Withdrawal is not enjoined, Invenergy will suffer irreparable harm in the form of unrecoverable
Court No. 19-00192 Page 50
financial losses, lost business opportunities, and other business disruption.” Invenergy’s Mot. for
PI at 32 (citing Fletcher Aff. ¶¶ 8–40; Supp. Fletcher Aff., ¶¶ 3–24). “USTRs [sic] unlawful action
has already caused and will continue to cause irreparable harm to Invenergy’s outstanding brand,
reputation and good will.” Invenergy’s Mot. for PI at 35 (citing Fletcher Supp. Aff., ¶¶ 16–24).
The Government argues that Invenergy’s harm is not specific. Def.’s Resp. to Invenergy’s
Mot. for PI at 24. The Government also claims that Invenergy’s harm depend upon third parties
which “amounts to ‘speculation and unsupported’ claims of harm that are insufficient to meet the
requirement of showing immediate irreparable harm.” Def.’s Resp. to Invenergy’s Mot. for PI at
24. Q Cells further argues that Invenergy cannot demonstrate irreparable harm because its harm
depends on voluntary relationships and business decisions with unrelated third parties. Q Cells’
Supp. Resp. to Invenergy’s Mot. for PI at 4–7.
Q Cells characterizes Invenergy’s alleged irreparable harm as simple. Q Cells’ Resp. to
Invenergy’s Mot. for PI at 27. The court concludes that Invenergy’s alleged harm is indeed simple,
but not for the reasons that Q Cells states. It is simple in that Invenergy has suffered a procedural
harm flowing from a likely violation of the APA. This claim does not depend upon the subsequent
economic harms that flow therefrom. As in Northern Mariana Islands, “if the [Withdrawal] is not
enjoined prior to its effective date,” Invenergy “will never have an equivalent opportunity to
influence” USTR’s decision as to its imposition. See 686 F. Supp. 2d at 18–19. Invenergy would
thereby lose any opportunity for meaningful judicial review. See Zenith Radio Corp. v. United
States, 710 F.2d 806, 810 (Fed. Cir. 1983) (finding “the abrogation of effective judicial review” to
constitute “sufficient irreparable injury” justifying preliminary injunctive relief). The Government
does not appear to dispute this reality. See Def.’s Resp. to Invenergy’s Mot. for TRO at 17–20
(only addressing some of Invenergy’s economic, but not procedural, harms). If the court were to
Court No. 19-00192 Page 51
issue a decision on the merits ordering USTR to undertake a notice and comment process for
reconsideration of the Exclusion without first issuing a PI, the Withdrawal would become the new
status quo and USTR may be less likely to consider other views. As Invenergy explains, “[a]t the
same time, Invenergy and other affected industry players will have to adjust their business plans
and behavior accordingly to reflect the imposition of significant additional duties, resulting in lost
business opportunities, cancelled or significantly reduce projects, and a reduction in available
clean solar energy.” Invenergy’s Mot. for PI at 31.
Therefore, the court concludes that this likely procedural harm is irreparable, and thus
merits preliminary injunctive relief because they cannot be remedied after the Withdrawal goes
into effect. The alleged violation of the APA should be further enjoined to avoid the business
uncertainty that flows from such a procedural violation. The Withdrawal causes irreparable harm
by eliminating the business certainty required by the solar industry to plan and develop future
projects. As Plaintiffs explain, “Invenergy reasonably relied on USTR’s Exclusion, which was the
product of a rulemaking that took over a year and contained no indication that it could be reversed,
when conducting its business.” Invenergy, Clearway, and AES DE’s Supp. Resp. to Mot. for PI
at 5. As Invenergy explains, it “will thus not qualify for the Investment Tax Credit (“ITC”) safe
harbor [ . . . ]. Invenergy’s inability to qualify for that 30% ITC tax credit will severely
disadvantage these projects to the points where some likely will not be developed as planned (e.g.,
their size and other elements would have to change) and others might not be developed at all.”
Invenergy’s Mot. for PI at 37. A PI is therefore needed to maintain the status quo and avoid the
losses in connection with a lack of business certainty that may cause irreparable harm. See Am.
Signature, Inc., 598 F.3d at 828–29. In short, Article III injury is demonstrated through the likely
increase of the price of bifacial panels, and therefore Plaintiffs’ costs in purchasing and producing
Court No. 19-00192 Page 52
energy with bifacial panels, should the Withdrawal go into effect. SEIA’s Resp. to Invenergy’s
Mot. for PI at 4, 10; Invenergy, Clearway, and AES DE’s Supp. Resp. to Mot. for PI at 1.
Distinctly, Invenergy’s business, reputational, and procedural harms are irreparable because they
cannot be remedied if the Withdrawal is implemented. Injunctive relief is thus warranted.
IV. The Balance of Hardships Weighs in Favor of Plaintiffs.
The court “must balance the competing claims of injury and consider the effect” of granting
Invenergy’s motion for a PI. Winter, 555 U.S. at 24 (quoting Amoco Prod. Co. v. Vill. of Gambell,
AK, 480 U.S. 531, 542 (1987)). See also Nat. Res. Def. Council, Inc. 331 F. Supp. 3d at 1369.
Invenergy contends that it will suffer irreparable harm absent a PI, while “there is little to no
prejudice to the Government or any other interested parties in delaying the onset of these increased
tariffs” pending adjudication on the merits. Invenergy’s Mot. for PI at 38. Invenergy further
argues that (1) the Government’s contention that it will be harmed by lost revenue does not
comport with the intention of Section 201 tariffs, “to alter trading partners and address specific
trade practices,” and not to raise revenue; (2) CBP can extend liquidation and collect lost revenue
should the Government prevail; and (3) the Government has made no showing that the domestic
industry would face existential harm without the Withdrawal. Id. DWíSee also SEIA’s Resp.
to Invenergy’s Mot. for PI at 11–12. The Government instead contends that its hardship, “in the
form of administrative burden and potential lost revenue,” outweighs Invenergy’s harm. Def.’s
Resp. to Invenergy’s Mot. for PI DWí7KH*RYHUQPHQWDUJXHVWKDW³&%3KDVQRUHOLDEOHRU
ready way to track the subject entries during the period covered by the injunction,” and the
domestic industry faces “existential harm,” unlike the “speculative” harm alleged by Invenergy.
Id. At 28. Q Cells posits that without the implementation of the Withdrawal, the “bifacial loophole
poses a devastating threat to the U.S. industry” and characterizes Invenergy’s assertions to the
Court No. 19-00192 Page 53
contrary as “misleading.” Q Cells’ Resp. to Invenergy’s Mot. for PI DWí4&HOOVIXUWKHU
argues that “fairness dictates that the exclusion or [should] be withdrawn” and that the court should
weigh heavily in favor of domestic producers relying on Section 201 relief. Id. at 44–45.
The court determines that the balance of hardships weighs in favor of granting a PI to
preserve the status quo. The court does not doubt that the imposition of the PI will increase the
administrative burden on the Government. The APA mandates such a burden. The PI, moreover,
may incur revenue losses for the Government, at least in the short term, and may negatively affect
the domestic producers of bifacial solar panels. As addressed under the public interest prong
below, however, whether bifacial solar panels should be excluded from Section 201 safeguard
duties is not a question for this court. Instead, before the court is a question of process, and the
harms alleged are a direct result of the failure to follow process. “Had the agency released the
[Withdrawal rule] earlier in the year and provided the public with notice and an opportunity for
comment, the current quandary never would have arisen. [USTR] should not now expect to excuse
its violation of the APA by pointing to the problems created by its own delay.” See N. Mariana
Islands, 686 F. Supp. 2d at 21. See also Washington v. United States Dep’t of State, 318 F. Supp.
3d 1247, 1263 (W.D. Wash. 2018). USTR undertook rulemaking pursuant to the APA in
implementing the Exclusion. It then attempted to withdraw the Exclusion for bifacial solar panels,
without following rulemaking procedures. The Plaintiffs acted in reliance on USTR’s rules. Any
harms suffered by the Government, and domestic producers, are a direct result of USTR’s failure
to follow the APA. The balance of equities, therefore, tips decidedly in favor of the Plaintiffs.
V. The PI Is in the Public Interest.
Lastly, the court considers whether granting a PI would be in the public interest. Silfab
Solar, 892 F.3d at 1345 (citing Winter, 555 U.S. at 20). See also Nat. Res. Def. Council, Inc., 331
Court No. 19-00192 Page 54
F. Supp. 3d at 1371. The parties dispute, at considerable length, the effect that the Withdrawal
would have on the future of the solar energy in the United States. Hearing; Invenergy’s Mot. for
3,DWí6(,$¶V5HVS to Invenergy’s Mot. for PI at 12; Def.’s Resp. to Invenergy’s Mot. for
PI at 29; Q Cells’ Resp. to Invenergy’s Mot. for PI at 46. Invenergy also argues that “the public
interest favors faithful execution of the laws, and the provision of the rights granted by Congress
in the APA to regulated parties,” and that “the public interest is not negatively affected when a
preliminary injunction is entered for the purpose of preserving the status quo.” Invenergy’s Mot.
for PI at 40, 42 (citing Assoc. Dry Goods Corp. v. United States, 515 F. Supp. 775, 780í81 (1981)).
SEIA, likewise, argues that the public interest is best served by preserving the status quo “until
USTR follows the proper procedures and makes the determinations required by law to do so.”
SEIA’s Resp. to Invenergy’s Mot. for PI DW í  7KH *RYHUQPHQW FRQWHQGV WKDW WKH SXEOLF
interest is served by “effective enforcement of section 201,” a “viable [domestic] solar industry,”
and the avoidance of a PI that would give Plaintiffs the same advantages as a final adjudication.
Def.’s Resp. to Invenergy’s Mot. for PI at 29. Q Cells argues that a PI is not in the public interest
because it would “overturn the policy analysis and the difficult choices performed by the President
and USTR.” Q Cells’ Resp. to Invenergy’s Mot. for PI at 47.
The parties all acknowledge the importance of the solar energy industry to the public
interest, but they dispute how best to achieve this policy goal. Hearing. The court agrees, as Q
Cells contends, that this requires “policy analysis” and “difficult choices,” both of which USTR
undertook in implementing the Exclusion. See Q Cells’ Resp. to Invenergy’s Mot. for PI at 47.
Whether the best means to protect and advance the solar industry in the United States, however, is
through the continuation of the Exclusion or the resumption of safeguard duties on imported
Court No. 19-00192 Page 55
bifacial solar panels through the Withdrawal is a policy question ill-suited for this court to decide.13
And so, it does not.
The public interest at stake before the court is instead one of process and fidelity to the law.
Congress delegated the authority to impose safeguard measures to the President. 19 U.S.C. § 2253.
The President directed USTR to adopt an exclusion process. Presidential Proclamation. USTR
then decided on and announced notice-and-comment rulemaking procedures, accepted exclusion
requests and comments, and announced the Exclusion, pursuant to APA rulemaking requirements.
Four months after implementing the Exclusion, USTR summarily rescinded it without notice and
comment. “The public interest is served by ensuring that governmental bodies comply with the
law[.]” Am. Signature., 598 F.3d at 830. The public interest thus weighs in favor of the Plaintiffs,
as USTR must comply with the APA.
CONCLUSION
The court grants Invenergy’s motion for a PI barring the implementation.
/s/ Gary S. Katzmann
Gary S. Katzmann, Judge
Dated: December 5, 2019
New York, New York
13
As Invenergy rightly notes, “the [c]ourt is in no position to assess the validity of, for example,
[Q Cells’] hyperbolic claim that the U.S. solar panel industry will ‘die on the operating table’ if
the [c]ourt does not sustain the Withdrawal.” Invenergy, Clearway, and AES DE’s Suppl. Resp.
to Mot. for PI at 10. Nor can the court say Invenergy would suffer the same fate should the
Withdrawal go into effect. USTR understood that the decision to implement the Exclusion
required reasoned decision making, considering competing policy interests. A decision to
withdraw the Exclusion requires the same.
Court No. 19-00192 Page 56
APPENDIX A
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: THE HONORABLE GARY S. KATZMANN, JUDGE
INVENERGY RENEWABLES LLC,
Plaintiff,
and
SOLAR ENERGY INDUSTRIES
ASSOCIATION, CLEARWAY ENERGY
GROUP LLC, EDF RENEWABLES, INC. and
AES DISTRIBUTED ENERGY, INC.,
Plaintiff-Intervenors,
v.
Court No. 19-00192
UNITED STATES OF AMERICA, OFFICE
OF THE UNITED STATES TRADE
Order on Plaintiffs’ Motion for
REPRESENTATIVE, UNITED STATES
Preliminary Injunction
TRADE REPRESENTATIVE ROBERT E.
LIGHTHIZER, U.S. CUSTOMS AND
BORDER PROTECTION, and ACTING
COMMISSIONER OF U.S. CUSTOMS AND
BORDER PROTECTION MARK A.
MORGAN,
Defendants,
and
HANWHA Q CELLS USA, INC.,
Defendant-Intervenor.
On consideration of all papers and proceedings had herein, and upon due deliberation, it is
hereby
ORDERED that Invenergy Renewables LLC’s Motion for Preliminary Injunction, ECF
No. 49, is GRANTED because Invenergy is likely to succeed on the merits, will suffer irreparable
Court No. 19-00192 Page 57
harm, and the public interest will be negatively affected if Defendants are not enjoined from
making effective and enforcing the Withdrawal of Bifacial Solar Panels Exclusion to the Solar
Products Safeguard Measure, 84 Fed. Reg. 54,244 (USTR Oct. 9, 2019) (“Withdrawal”); and it is
further
ORDERED that Defendants, Office of the United States Trade Representative and the
United States Trade Representative, Robert E. Lighthizer, together with its delegates, officers,
agents, servants, and employees, shall be preliminarily enjoined from entering the Withdrawal into
effect; and it is further
ORDERED that Defendants, Office of the United States Trade Representative and the
United States Trade Representative, Robert E. Lighthizer, together with its delegates, officers,
agents, servants, and employees, shall be preliminarily enjoined from making any modification to
the Harmonized Tariff Schedule of the United States that includes or reflects the Withdrawal; and
it is further
ORDERED that Defendants, U.S. Customs and Border Protection, its delegates, officers,
agents, and employees, including Defendant Acting Commissioner Mark A. Morgan, are hereby
preliminarily enjoined from enforcing or making effective the Withdrawal or any modifications to
the Harmonized Tariff Schedule of the United States reflecting or including the Withdrawal; and
it is further
ORDERED that, pursuant to USCIT Rule 65(c), during the pendency of the preliminary
injunction, Plaintiff shall continue the bond with the court, in the amount of $1.00; and it is further
ORDERED that Defendants are so enjoined effective from the date of issuance of this
order until entry of final judgment as to Plaintiffs’ claims against Defendants in this case; and it is
further
Court No. 19-00192 Page 58
ORDERED that the parties shall confer and submit a proposed further schedule in this
action by Friday, December 19, 2019.
SO ORDERED.
Dated: December 5, 2019
New York, New York
/s/ Gary S. Katzmann
Gary S. Katzmann, Judge