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Solar Cell Safeguards Remain in Place After Court Again Denies Preliminary Injunction

Monday, June 25, 2018
Sandler, Travis & Rosenberg Trade Report

The Court of Appeals for the Federal Circuit has upheld a U.S. Court of International Trade decision to deny a request for a temporary restraining order and a preliminary injunction from the safeguard measure that the U.S. imposed earlier this year on imports of crystalline silicon photovoltaic cells and modules.

The CAFC states that there are circumstances when a presidential action may be set aside if the president acts beyond his statutory authority but that such relief is not available in this case. The court explains that while the International Trade Commission made no official recommendation regarding import relief (as the four commissioners at the time differed on the issue), the president’s authority to act to provide such relief is not conditioned on the existence of an ITC recommendation. The CAFC also states that while the president did not submit the statutorily required report on relief to Congress, that failure is not grounds to set the relief aside either.

The plaintiffs argued that the president violated NAFTA by restricting imports of CSPV products from Canada after determining, in opposition to the ITC’s conclusion, that such imports accounted for a substantial share of total imports. However, the CAFC states that the presidential decision cannot be set aside because it conflicts with the ITC’s conclusion. The ITC’s findings “in no way” bind the president, the court states, who “is free to reach a different decision regarding those determinations.” The court further cites previous case law in holding that it has no authority to review the president’s determination on this matter.

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