Trump lawyers push back on Canadian firms’ tariff challenge

Source: Ellen M. Gilmer, E&E News reporter • Posted: Thursday, April 19, 2018

The Trump administration is asking a federal court to toss Canadian solar companies’ challenge to tariffs the president recently levied on imported solar cells and modules.

In a filing to the U.S. Court of International Trade this week, government lawyers argued that the Canadian companies have no ground to bring their lawsuit because President Trump’s decision to implement the trade restrictions is not reviewable.

At issue is Trump’s January decision to impose charges — starting at 30 percent and decreasing over time — on crystalline silicon photovoltaic cells shipped to the U.S. from other countries. The tariffs were issued at the behest of two struggling domestic manufacturers and widely opposed by most other American solar companies, along with foreign cell makers.

A group of four Canadian companies, Silfab Solar Inc., Heliene Inc., Canadian Solar (USA) Inc. and Canadian Solar Solutions Inc., took their complaints to court, arguing that Trump’s decision was procedurally flawed and violated federal law.

The court denied the companies’ request for a preliminary injunction last month, and now the Trump administration wants the judge to ditch the case altogether.

“The complaint should be dismissed because the claims are unreviewable and, even if this Court could review plaintiffs’ claims, they must be dismissed for failure to state a claim,” Justice Department lawyers told the court.

They argue that the tariffs are unreviewable under the Administrative Procedure Act because they were carried out by the president, and the president does not count as an “agency” subject to APA challenges.

The companies’ key claim is that Trump’s approval of the tariffs was flawed because it relied upon U.S. International Trade Commission recommendations that lacked a majority vote. Indeed, the ITC agreed last year that foreign imports harmed domestic solar manufacturers, but the commissioners issued an assortment of remedy recommendations, none receiving a majority backing.

The trade court noted in March that the companies were unlikely to prevail in the case. The U.S. Court of Appeals for the Federal Circuit also declined to freeze the tariffs.