SILFAB SOLAR, INC., HELIENE, INC., CANADIAN SOLAR (USA), INC., CANADIAN SOLAR SOLUTIONS, INC., Plaintiffs-Appellants
UNITED STATES, UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES INTERNATIONAL TRADE COMMISSION, CHAIRMAN RHONDA K. SCHMIDTLEIN, COMMISSIONER KEVIN K. MCALEENAN, OFFICE OF THE U.S. TRADE REPRESENTATIVE, U.S. TRADE REPRESENTATIVE ROBERT E. LIGHTHIZER, SOLARWORLD AMERICAS, INC., Defendants-Appellees SUNIVA, INC., Defendant
from the United States Court of International Trade in No.
1:18-cv-00023-TCS, Chief Judge Timothy C. Stanceu.
Jonathan Thomas Stoel, Hogan Lovells U.S. LLP, Washington,
DC, argued for plaintiffs-appellants. Also represented by
Craig Anderson Lewis, Mitchell Reich, Robert B. Wolinsky.
Davidson, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for defendants-appellees United States, United States Customs
and Border Protection, Kevin K. McAleenan, Office of the U.S.
Trade Representative, Robert E. Lighthizer. Also represented
by Chad A. Readler, Tara K. Hogan, Joshua E. Kurland, Stephen
David Henderson, Office of the General Counsel, United States
International Trade Commission, Washington, DC, argued for
defendants-appellees United States International Trade
Commission, Rhonda K. Schmidtlein. Also represented by
Dominic L. Bianchi, Andrea C. Casson.
Timothy C. Brightbill, Wiley Rein, LLP, Washington, DC, for
defendant-appellee SolarWorld Americas, Inc. Also represented
by Tessa V. Capeloto, Laura El-Sabaawi, Usha Neelakantan,
Maureen E. Thorson.
L. Porter, Curtis, Mallet-Prevost, Colt & Mosle LLP,
Washington, DC, for amicus curiae Government of Canada. Also
represented by Christopher A. Dunn, James P. Durling.
Dyk, Moore, and Reyna, Circuit Judges.
Solar Inc., Heliene Inc., Canadian Solar (USA) Inc., and
Canadian Solar Solutions Inc. ("appellants") sought
a preliminary injunction to bar the enforcement of
presidentially imposed tariffs on solar products. The Court
of International Trade ("CIT") denied the
injunction. We affirm. We conclude that the President's
actions here were lawful and that accordingly, appellants
have not established a probability of success on the merits
as required for a preliminary injunction.
201 of the Trade Act of 1974 is commonly known as the
"escape clause" and authorizes the President to
impose tariffs under prescribed conditions. Section 201
provides that if the International Trade Commission
("ITC" or "the Commission") determines
an article is being imported into the United States in
such increased quantities as to be a substantial cause of
serious injury, or the threat thereof, to the domestic
industry producing an article like or directly competitive
with the imported article, the President, in accordance
with this part, shall take all appropriate and feasible
action within his power which the President determines
will facilitate efforts by the domestic industry to make a
positive adjustment to import competition and provide greater
economic and social benefits than costs.
19 U.S.C. § 2251(a) (emphases added). Such actions are
typically referred to as "safeguard measures."
Section 2253(a) provides the same authorization that
[a]fter receiving a report . . . containing an
affirmative finding regarding serious injury, or the threat
thereof, to a domestic industry, the President shall
take all appropriate and feasible action within his power
which the President determines will facilitate efforts
by the domestic industry to make a positive adjustment to
import competition and provide greater economic and social
benefits than costs.
19 U.S.C. § 2253(a) (emphases added).
2017, a United States manufacturer of solar products, Suniva,
Inc., filed a petition with the ITC, requesting that the
President undertake measures to protect U.S. solar
manufacturers against foreign imports. The goods at issue in
this case are crystalline silicon photovoltaic (CSPV) cells,
manufactured and sold either as standalone cells or as
functional modules. In accordance with Section 2252(b)(1)(A),
the ITC conducted an investigation "to determine whether
an article is being imported into the United States in such
increased quantities as to be a substantial cause of serious
injury, or the threat thereof, to the domestic industry
producing an article like or directly competitive with the
imported article." 19 U.S.C. § 2252(b)(1)(A). On
November 17, 2017, the ITC issued a report, in which it made
an affirmative serious injury determination under 19 U.S.C.
§ 2252(b). The ITC determined that solar products were
"being imported into the United States in such increased
quantities as to be a substantial cause of serious injury to
the domestic industry producing an article like or directly
competitive with the imported article." J.A. 92.
making the determination, there were only four Commissioners
serving on the ITC. While the four Commissioners were united
in their affirmative finding of serious injury, they divided
into three groups with respect to relief. Vice Chairman
Johanson and Commissioner Williamson recommended a tariff of
30% on imports in excess of 1 gigawatt for the first year.
Similarly, Chairman Schmidtlein recommended both tariffs and
quotas under which (1) cells that exceed the 0.5 gigawatts
volume level would be subject to a 30% tariff, (2) modules
would be subject to 35% tariff, and (3) a tariff of 10%
ad valorem to be instituted on imports of
up to 0.5 gigawatts. Commissioner Broadbent recommended a
quantitative restriction on cells and modules. Since no
recommendation received the assent of "a majority of the
commissioners voting" or of "not less than three
commissioners, " none was an official Commission
recommendation under 19 U.S.C. § 1330(d)(2).
determining that a serious injury was occurring, the ITC
reported specifically on imports from Canada. This appeal
only involves solar imports from Canada, and not ...