United States Court of International Trade

CIT Grants Preliminary Injunction Against USTR

19-153

Before the Court in Invenergy Renewables LLC.et. al. v. United States et. al., Slip Op. 19-153, Court No. 19-00192 (December 5, 2019) was plaintiff’s motion for a preliminary injunction (“PI”) against the United States Trade Representative (“USTR”) from withdrawing an exclusion to safeguard duties on solar products previously granted through notice-and-comment rulemaking. In addition, plaintiffs also allege that USTR had violated their 5th amendment rights and the Administrative Procedure Act (“APA”). For the following reasons, the Court granted the PI to plaintiffs.

The first issue the Court dealt with was whether the plaintiffs had standing to bring this case. In order to have constitutional standing “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.” Id. at 16. The Court said that Invenergy has demonstrated “a procedural harm and additional economic, business, and reputational harms to show an actual or imminent concrete and particularized injury.” The Court further concluded that the “injury is directly traceable to the withdrawal announced without sufficient notice or opportunity for comment as required by the APA.” Id. at 21. This injury was “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 determination. Id. at 22. The Court also concluded Invenergy had statutory standing because through Section 201, the controlling statue on Safeguard duties, “Congress has shown a concern for the fairness of procedures administering safeguard duties that may impact consumers and domestic competition for articles at issue.” Id. at 25. The Court also concluded plaintiff intervenors had constitutional standing and statutory standing.

The next issue handled by the Court was Invenergy’s motion for a PI. “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.” Id. at 31. In regards to the likelihood of success on the merits the Court considered plaintiff’s APA claim. In order to evaluate the APA claim, the Court concluded that the USTR was an agency under the APA because the “USTR defines itself as a government agency.” Id. at 34. The Court also concluded that the exclusion process was a rulemaking subject to the APA because “USTR outlined the process for its notice-and-comment rulemaking [,]” and choose “a rulemaking docket over a non-rulemaking docket.” Id. at 39. As such, the withdrawal of the exclusion was also a rulemaking. The Court ultimately concluded that it was likely the USTR violated the APA because “the withdrawal was taken with no advance notice or an opportunity for affected parties to comment.” Id. at 42. The Court also said it was likely the withdrawal was arbitrary and capricious because “USTR has not explained the facts on which it relied or the reasoning behind its decision.” Id. at 45. As such, the first factor weighed in favor of the plaintiffs.

In regards to the final factors of the PI test, the Court found plaintiff was likely to suffer irreparable harm because “the withdrawal causes irreparable harm by eliminating the business certainty required by the solar industry to plan and develop future projects.” Id. at 51. The Court also found the balance of hardships weighed in favor of the plaintiffs because they “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.” Id. at 53. The Court found the public interest was in favor of plaintiffs because “the public interest is served by ensuring that governmental bodies comply with the law[,]” including USTR with the APA. Id. at 55. As such, the Court granted Invenergy’s motion for a PI barring the implementation of the withdrawal pending the outcome of this litigation.