[00:00:04] Speaker 04:
We will hear argument first this morning in number 161053, Chengzhou, China, solar energy versus ITC.

[00:00:24] Speaker 00:
Thank you, Your Honor.

[00:00:25] Speaker 00:
It's nice to be back.

[00:00:31] Speaker 00:
This appeal concerns the issue of causation.

[00:00:34] Speaker 00:
in the trade remedy investigation, that is how the International Trade Commission meets its statutory... I'll ask you to speak up a bit, please.

[00:00:41] Speaker 00:
I'm sorry, certainly.

[00:00:44] Speaker 00:
It's funny, my wife usually tells me the opposite.

[00:00:48] Speaker 00:
How the ITC meets its statutory obligation to determine whether injury suffered by the domestic industry, assuming it exists, is by reason of the subject imports.

[00:00:59] Speaker 00:
I think it may be helpful to look at this in two steps.

[00:01:02] Speaker 00:
whether the factual conditions in the current case require the sort of causation analysis described by the court in some of the past cases, like Gerald Meadows, Brotsk, and Mittal.

[00:01:14] Speaker 00:
And second, if the answer to that question is yes, then whether or not the commission, in fact, engaged in that type of analysis.

[00:01:21] Speaker 04:
So I was struck, I guess, by a series of Supreme Court cases, Gross Against Financial Somebody and Burrage Against United States.

[00:01:32] Speaker 04:
in which the Supreme Court has said now repeatedly that the phrase by reason of has a very clear default meaning, which requires at least but for causation.

[00:01:45] Speaker 04:
So if we start there, I don't see anything actually contrary in our earlier precedents.

[00:01:51] Speaker 04:
So why, if one starts there, did the commission not find that, regardless of the particular words,

[00:02:00] Speaker 04:
have sufficient evidence to support that finding?

[00:02:06] Speaker 00:
Well, that's interesting.

[00:02:07] Speaker 00:
Obviously, we didn't brief the Supreme Court cases, but they sound, and I'm not outbound, so I'm not familiar with them.

[00:02:13] Speaker 04:
But the fact that... They're just follow-ons to Price Waterhouse, which had a series of non-majority opinions.

[00:02:21] Speaker 04:
But now they say, the phrase, by reason of, requires at least a showing of but for causation.

[00:02:28] Speaker 04:
Full stop.

[00:02:29] Speaker 00:
Right.

[00:02:29] Speaker 00:
That's interesting.

[00:02:30] Speaker 00:
In the trade context, these cases have never gone that far, if you will.

[00:02:35] Speaker 00:
They've never said that the by reason of phrase compels a but for analysis.

[00:02:43] Speaker 04:
Right.

[00:02:44] Speaker 04:
But the trade cases, unless there's something in the statute to the contrary, presumably need to follow what the Supreme Court says, that phrase as a background requirement.

[00:02:52] Speaker 00:
Right.

[00:02:52] Speaker 00:
Well, I would agree that, in fact, that is a helpful background, obviously, for my view in that

[00:02:58] Speaker 04:
So why did what the Commission find here, either in terms of missing findings or missing evidence that would support findings, why is there an insufficiency on the assumption that but-for causation in fact had to be found?

[00:03:15] Speaker 00:
Well, okay, a but-for analysis requires a certain sort of hypothetical view of the world.

[00:03:21] Speaker 00:
I think that is a fundamental aspect of what a but-for analysis is.

[00:03:25] Speaker 00:
In other words,

[00:03:25] Speaker 00:
What would the world have looked like but for the existence of subject imports?

[00:03:30] Speaker 00:
That's the inquiry one would have to undertake.

[00:03:33] Speaker 00:
And the commission, we submit, did not do that.

[00:03:36] Speaker 04:
Well, it didn't do it in terms, but that's just a different way of phrasing a proposition.

[00:03:47] Speaker 04:
When I look at the other adversely

[00:03:51] Speaker 04:
The other factors in evidence that adversely affected the domestic solar panel industry, they don't fully account for what happened to them.

[00:04:01] Speaker 00:
With respect to that, though, I do not think that that sort of logic can be gleaned from the Commission's decision in this case.

[00:04:11] Speaker 00:
In other words, in this case, the Commission said, there's a big factual record, there's a lot of things going on here.

[00:04:19] Speaker 00:
But critically, you've got this impetus toward grid parity.

[00:04:22] Speaker 00:
You've got an overriding competitive factor, which we have been arguing, if you remove the subject imports, you have to look and see if you remove the subject imports, whether or not that injury would have still occurred.

[00:04:41] Speaker 00:
That is the essence, I would say, of a but for analysis in this context.

[00:04:46] Speaker 00:
Now there may be some cases where you don't have to do that.

[00:04:48] Speaker 00:
In other words, you only have two players.

[00:04:49] Speaker 05:
Is the only way you can do that is in this hypothetical world concept?

[00:04:55] Speaker 05:
Or can you do that by analyzing what these other factors look like and how they would play out?

[00:05:05] Speaker 00:
That gives rise.

[00:05:09] Speaker 05:
But four in some areas, tort law and others,

[00:05:13] Speaker 05:
has a specific meaning and is intended to do a certain thing.

[00:05:20] Speaker 05:
We have a statutory requirement for what the Commission has to do and there's nothing in the statute that says but for.

[00:05:29] Speaker 05:
What we have is cases that talk about it and some of them seem to use but for in the technical meaning, you've got to do the hypothetical, and some of them seem to use it differently

[00:05:44] Speaker 05:
Meaning you've got to do an analysis showing that you know what the world would have looked like, but you can do it without using magic words.

[00:05:56] Speaker 00:
I agree.

[00:05:56] Speaker 05:
What is the law in this particular area and in this particular case?

[00:06:02] Speaker 05:
That's the question.

[00:06:04] Speaker 00:
Right.

[00:06:08] Speaker 00:
When I agree, one obviously does not have to use magic words and the Swift Train precedent is the most obvious on that.

[00:06:14] Speaker 00:
But recall that in the Swift Train case, the Court of International Trade did remand the case to the Commission to perform some form of but for analysis.

[00:06:26] Speaker 00:
which hadn't been done in the first instance by the agency.

[00:06:30] Speaker 00:
And of course, the court said it couldn't do it.

[00:06:31] Speaker 05:
But the CIT opinion in this case is really exhaustive and careful on that whole issue and took each one of the questions that your side had raised and analyzed it and showed how the commission had dealt with it.

[00:06:52] Speaker 05:
And the CIT judge

[00:06:55] Speaker 05:
pretty much does a but-for analysis only without using the magic words.

[00:07:01] Speaker 05:
What's wrong with that?

[00:07:02] Speaker 00:
With due respect, I don't think he did.

[00:07:05] Speaker 00:
I respect Judge Eaton a great deal.

[00:07:06] Speaker 00:
But what they did there was the traditional sort of reviewing, going through the factors in the statute in a jumble, if you will, of three things, domestic industry, subject imports,

[00:07:24] Speaker 00:
and this impetus to grid parity.

[00:07:26] Speaker 00:
In other words, a competition from natural gas.

[00:07:30] Speaker 00:
They acknowledged that the natural gas was there, but the commission simply said, we don't see it as a justification for underselling.

[00:07:41] Speaker 00:
And they made very short shrift of what we think is a fundamental issue.

[00:07:48] Speaker 00:
And the fact is that if grid parity really did exist in this situation, which

[00:07:54] Speaker 00:
is undisputed.

[00:07:56] Speaker 00:
Well, let me back up.

[00:07:57] Speaker 00:
In a way, it's a critical finding, a condition of competition finding by the commission that there was this overriding competitive factor, the impetus to grid parity.

[00:08:09] Speaker 00:
You do not get that in a lot of these types of trade cases where there is a critical third element.

[00:08:14] Speaker 00:
That was what started the line of cases in Gerald Meadows, and it continues through.

[00:08:19] Speaker 00:
And even Swift Train obviously didn't repudiate that, not that the panel could.

[00:08:24] Speaker 00:
So we have a situation where you know there is an overriding competitive factor that must be considered.

[00:08:33] Speaker 05:
Which was the overriding competitive factor in this case from your viewpoint?

[00:08:41] Speaker 00:
The impetus toward grid parity, the competition by natural gas generating technologies.

[00:08:47] Speaker 00:
They set the low price everybody was striving to get to.

[00:08:52] Speaker 00:
and technological advancements and these federal government incentives helped close the gap.

[00:09:01] Speaker 02:
If the grid parity theory meant that falling gas prices were driving down the price and then therefore demand for CSVP products, isn't it true though that

[00:09:20] Speaker 02:
The market for CSVP products went up dramatically during the period?

[00:09:26] Speaker 02:
Yes.

[00:09:28] Speaker 00:
Well, yes, but that is not a contradiction.

[00:09:35] Speaker 02:
So why isn't it that, according to your grid parity theme, the demand, the market for CSVP products should have logically shrunk rather than expanded as it did?

[00:09:50] Speaker 00:
It expanded for several exogenous reasons.

[00:09:53] Speaker 00:
You had, you know, the federal and state mandates.

[00:09:57] Speaker 00:
You had improving technology that did enable the prices to decline.

[00:10:01] Speaker 00:
You had the crash and probably Silicon costs that enabled some, to some degree, the prices of solar energy to decline.

[00:10:11] Speaker 00:
And you generally had a social awareness, you know, starting in 2009, 2010, that

[00:10:17] Speaker 00:
solar power, renewable energy was the wave of the future.

[00:10:20] Speaker 02:
So then why would the falling gas prices be an overriding factor if the market for CSVP products seemed to be pretty robust?

[00:10:32] Speaker 00:
It was growing.

[00:10:34] Speaker 00:
Because the record is clear on this and the ITC found it as well.

[00:10:39] Speaker 00:
They were always chasing the price of natural gas.

[00:10:42] Speaker 00:
They were successful to some extent.

[00:10:44] Speaker 00:
But if prices were

[00:10:46] Speaker 00:
If you were to remove subject imports, you would still have this drive down of prices toward the grid parity level, toward the level set by natural gas.

[00:10:55] Speaker 00:
In the United States, that is the ultimate determinant of what the prices are going to be.

[00:11:01] Speaker 00:
That is a default determinant of prices in the United States.

[00:11:04] Speaker 00:
You remove subject merchandise, you still have that drive toward grid parity.

[00:11:08] Speaker 05:
Council, I get the feeling that what you'd like us to do is reweigh

[00:11:13] Speaker 05:
the evidence, particularly on the effect of natural gas on the industry.

[00:11:20] Speaker 05:
But that's not our job.

[00:11:21] Speaker 05:
That's the commission's job.

[00:11:24] Speaker 05:
Our job is to determine whether they properly looked at that factor and whether there's substantial evidence in the record to support their conclusion.

[00:11:33] Speaker 05:
Let me read to you what the CIT said about it.

[00:11:37] Speaker 05:
as shall be seen, the commission informed its analysis by evaluating a number of conditions of competition present in the U.S.

[00:11:45] Speaker 05:
CSPV market and the role that each played during the POI with respect to the injuries sustained by the domestic CSPV industry.

[00:11:54] Speaker 05:
One, the emergence of alternative energy technologies such as the increased supply and declining price of natural gas.

[00:12:03] Speaker 05:
Two, the declining cost of polysilicon, et cetera.

[00:12:08] Speaker 05:
The judge, and I've looked both at what the judge said and at what the commission said, I think he accurately describes what the commission did.

[00:12:21] Speaker 00:
He did.

[00:12:21] Speaker 00:
He did.

[00:12:22] Speaker 05:
And we're not going to sit here and ask, did the commission get it right?

[00:12:27] Speaker 05:
That's not our question.

[00:12:28] Speaker 00:
I am not asking you to do that.

[00:12:30] Speaker 00:
I'm going to be very clear.

[00:12:31] Speaker 00:
We are not asking this court to rewrite the evidence.

[00:12:33] Speaker 00:
We are not.

[00:12:35] Speaker 00:
What we are asking you to do is to

[00:12:38] Speaker 00:
reconfirm the legal structure of analysis in cases such as Gerald Meadows and Brodsky and to send it back to the commission.

[00:12:48] Speaker 05:
Are you asking us to require that the commission have done a, quote, but for analysis which requires, in the technical sense, which requires the hypothetical situation without the accused, et cetera?

[00:13:06] Speaker 05:
in this case.

[00:13:08] Speaker 05:
Is that what you're asking for?

[00:13:10] Speaker 00:
Okay, two points.

[00:13:11] Speaker 00:
No, but it would be nice.

[00:13:15] Speaker 05:
And what I mean by that is... But that's the commission's choice.

[00:13:17] Speaker 00:
Right, exactly.

[00:13:18] Speaker 00:
What I mean by that is that in Swiftrain there was a remand and apparently it did not follow the full hypothetical but for structure and there was an appeal to this court on that issue and this court said we aren't... We don't do nice.

[00:13:32] Speaker 05:
What is it that you want?

[00:13:33] Speaker 05:
us to do.

[00:13:35] Speaker 00:
What I want you to do is remand with a request or instruction that the Commission engage in some form of but for analysis.

[00:13:49] Speaker 00:
One can't look at what they've done, never mind what the CIT says, you can't look at what the Commission has done and say they engaged in a form of but for analysis, especially according to what the Supreme Court said.

[00:14:02] Speaker 00:
You can say they've

[00:14:04] Speaker 00:
done the traditional analysis, which is looking, grinding through the factors of the determined volume, price, and impact and all that.

[00:14:12] Speaker 00:
But you can't say, I submit, that what they have done is a but-for analysis.

[00:14:19] Speaker 00:
I'm sorry.

[00:14:19] Speaker 04:
I'd like to have a minute for... You've used all but one minute of your rebuttal, but why don't we hear from the other side?

[00:14:26] Speaker 04:
We'll restore your full five minutes of rebuttal.

[00:14:29] Speaker 00:
Oh, thank you.

[00:14:36] Speaker 06:
Ms.

[00:14:36] Speaker 06:
Alves.

[00:14:38] Speaker 06:
Good morning.

[00:14:39] Speaker 06:
May it please the court.

[00:14:41] Speaker 06:
My name is Mary Jane Alves, and I represent the APOLE, the U.S.

[00:14:44] Speaker 06:
International Trade Commission.

[00:14:47] Speaker 06:
As you've recognized, in this case, the commission unanimously determined that the domestic industry was materially injured by the reason of significant and increasing volume of CSPV products.

[00:14:57] Speaker 04:
Does the commission dispute the proposition from the Supreme Court that the phrase by reason of requires at least a showing of but for causation?

[00:15:07] Speaker 06:
The commission believes that in this case, we have performed a buck for analysis.

[00:15:13] Speaker 04:
Can you answer my question, not just say that if such a requirement exists, which you want to reserve, you met it?

[00:15:22] Speaker 06:
Yes.

[00:15:22] Speaker 06:
To our knowledge, that is what the Supreme Court has said.

[00:15:26] Speaker 06:
The Supreme Court cases, as counsel has indicated, were not subject to much discussion in this case, although they had been in the Swiftrain case.

[00:15:35] Speaker 05:
Speak up a little.

[00:15:36] Speaker 06:
Yes, Your Honor.

[00:15:37] Speaker 06:
The Supreme Court's cases had not been under discussion in this case, although they had been in the underlying Swiftrain case.

[00:15:44] Speaker 06:
We do recognize that a but-for analysis is required.

[00:15:50] Speaker 06:
However, this Court has also provided substantial guidance what a but-for analysis means in the context of this statutory framework.

[00:15:59] Speaker 06:
And I think that's the point that we'd like to emphasize this morning, what exactly that means.

[00:16:04] Speaker 02:
So are you saying that this Court has

[00:16:07] Speaker 02:
articulated a conception of but for that's different from the conception of but for that's been expressed by the Supreme Court for other cases other statutes that use this phrase by reason of well for example your honor this court has emphasized in swift train that there is no magic words test this court has also reiterated in swift train and in prior cases that

[00:16:34] Speaker 06:
What the statute requires here is that the subject imports contribute more than minimally or tangentially to the injury.

[00:16:40] Speaker 06:
Oh, that's only a floor.

[00:16:41] Speaker 06:
That's certainly not sufficient.

[00:16:44] Speaker 06:
Correct.

[00:16:45] Speaker 06:
And in addition, Your Honor, this Court has emphasized, for example, in Matal, that what it is looking for is for the Commission to focus on the cause of the injury and to provide full consideration to the causation issue and provide a meaningful explanation of its conclusions supported by evidence in the record.

[00:17:04] Speaker 06:
I can refer you there to the court's decisions in Matal on pages 873, 875 to 879, and then also the court's decision in Swiftrain at 1359 to 1360.

[00:17:16] Speaker 06:
These are the same concepts that also appeared in this court's decision in Gerald Meadows.

[00:17:24] Speaker 04:
In Gerald... So now I guess I would be interested in your going to what you started to answer when I asked my first question.

[00:17:34] Speaker 04:
Why did the commission, in what it said, adequately address but for causation?

[00:17:43] Speaker 04:
Because the commission fully... By which I mean, right, that the domestic industry would not have been materially in the same sorry state had it not been for the imports.

[00:17:55] Speaker 04:
That's what but for causation means.

[00:17:57] Speaker 06:
Correct, Your Honor.

[00:17:58] Speaker 06:
So the commission went through each of the statutory factors, volume, price, and impact,

[00:18:03] Speaker 06:
It also considered, within the context of each of these statutory factors, other factors that may have been injuring the domestic industry.

[00:18:11] Speaker 06:
As you recognized this morning, the Court of International Trade reviewed the Commission's discussions of each of these other factors significantly, substantially.

[00:18:20] Speaker 06:
Not only the three factors that are in speed here, grid parity, utilities, and incentive programs, but the Court also looked at other factors that the Commission discussed in its opinion, including non-subject imports.

[00:18:33] Speaker 06:
and declining polysilicon costs.

[00:18:36] Speaker 06:
The commission, however, provided an extensive discussion with respect to each of these factors.

[00:18:42] Speaker 06:
And the bottom line here was, with respect to each of these arguments, the records simply did not support a lot of the assumptions underlying the appellant's arguments.

[00:18:51] Speaker 06:
For example, with respect to utilities, they argued that the domestic industry was unable or unwilling to compete for sales to utilities, and that any increase in subject imports merely

[00:19:03] Speaker 06:
involved sales to utilities.

[00:19:05] Speaker 06:
In fact, the record reflected and the Commission stated that the domestic industry and subject producers both made quality products that were highly substitutable.

[00:19:15] Speaker 06:
They both provide similar product technologies and products of particular wattages or cell type or size were not limited to specific market segments.

[00:19:26] Speaker 06:
In other words,

[00:19:27] Speaker 06:
The domestic industry made sales throughout the U.S.

[00:19:30] Speaker 06:
market in all of the various segments to utilities, to residential, for commercial uses.

[00:19:36] Speaker 06:
But it lost market share to subject imports in each of these segments.

[00:19:41] Speaker 06:
In addition, the commission also fully addressed Chinese respondents' claims about incentives.

[00:19:46] Speaker 04:
Can I ask you this question?

[00:19:47] Speaker 04:
I don't remember the details here at all.

[00:19:50] Speaker 04:
I had vague recollection that part of this is a two and a half year

[00:19:56] Speaker 04:
period of investigation, right?

[00:19:59] Speaker 06:
It was for the period of January 2009 through June of 2012, so three and a half years.

[00:20:04] Speaker 04:
Three and a half years, and a lot can change during that period.

[00:20:09] Speaker 04:
Suppose that Mr. Ellis's picture of the world was right for the last six months and on a going forward basis would be expected to be correct.

[00:20:22] Speaker 04:
but wrong for the first three years so that for the whole period of investigation, it's wrong but not for the last bit and for going forward.

[00:20:32] Speaker 04:
What does the statute say the commission is to do if that were the hypothesis?

[00:20:38] Speaker 06:
The commission makes its determination as a vote day, but it is looking at the information throughout the entire period of investigation.

[00:20:46] Speaker 06:
In this case, the commission made a finding of present material injury.

[00:20:49] Speaker 06:
And so it was not projecting forward whether or not there would be a threat of material injury in the imminent future.

[00:20:55] Speaker 04:
And is the present material injury based on the determination about the three and a half year period as a whole or what it was in June of 2012, the end of it?

[00:21:13] Speaker 06:
The commission's determination is based on the entire period taking into consideration what the current data also show.

[00:21:20] Speaker 06:
So, for example, if there is a sea change and there's a big difference at the end of the period, then certainly the commission would need to explain any such change.

[00:21:29] Speaker 06:
That wasn't the case here.

[00:21:31] Speaker 06:
In this particular case, for example, with respect to government incentives, one of the arguments that respondents make is that government incentives were declining.

[00:21:41] Speaker 06:
In fact, the commission's record reflected that throughout the entire period of investigation, there was a

[00:21:48] Speaker 06:
a very favorable overall mix of incentives from the federal government, state governments, and local incentives.

[00:21:54] Speaker 06:
Moreover, Chinese respondents focus on the expiration of a particular program, the federal section 1603 program.

[00:22:03] Speaker 06:
They argue that this program expired during the period of investigation.

[00:22:07] Speaker 06:
In fact, it wasn't supposed to expire until the last six months of the period of investigation.

[00:22:12] Speaker 06:
And it continued to have positive effects on demand in the U.S.

[00:22:16] Speaker 06:
market.

[00:22:17] Speaker 06:
even after its expiration because in this case the, for example, utilities were allowed to start production or start assembly of their projects so long as their projects were completed by 2016.

[00:22:30] Speaker 06:
So the effects of that program continued to have effects long after the end of the period investigation.

[00:22:37] Speaker 06:
Moreover, as the commission recognized, demand continued to increase throughout this period.

[00:22:42] Speaker 06:
So there wasn't a situation

[00:22:44] Speaker 06:
like that characterized by the Chinese respondents, where the demand was in fact declining, and or that government incentive programs were declining.

[00:22:55] Speaker 06:
And in addition, you've also heard their arguments this morning about whether or not the commission fully considered their grid parity claims.

[00:23:04] Speaker 06:
Again, as you heard, due to declines in the cost of natural gas-generated electricity related to the increased hydraulic shale drilling in the United States,

[00:23:14] Speaker 06:
They argued that any lost sales or lower prices were due to competition with natural gas and not subject imports.

[00:23:22] Speaker 06:
Again, their arguments lacked factual support in the record.

[00:23:27] Speaker 06:
As I mentioned, the record showed a very favorable overall mix of incentives.

[00:23:32] Speaker 06:
As they acknowledged this morning, the cost of the main raw material to produce these products, polysilicon, had declined.

[00:23:38] Speaker 06:
Therefore, CSPV products, as you recognized Judge Chen this morning, were actually very competitive

[00:23:44] Speaker 06:
even with respect to products such as natural gas.

[00:23:48] Speaker 06:
And the record showed that CSPV demand was explosive during this period.

[00:23:52] Speaker 06:
Indeed, when we surveyed questionnaire respondents about the role that demand for conventional energy products played relative to demand for CSPV products, the majority of them either responded that changes in the price of other electricity sources had no change in their demand for CSPV products,

[00:24:11] Speaker 06:
or it actually increased their demand for CSPB products.

[00:24:14] Speaker 06:
So again, as you correctly asked this morning, aren't respondents actually asking you to reweigh the evidence?

[00:24:21] Speaker 06:
The commission did acknowledge that there were other factors that collectively exerted downward pressure on prices, but it reasonably found that subject imports, which were substantial in the market and growing, and competing throughout the market,

[00:24:35] Speaker 06:
were a, quote, significant cause of the decline in the prices of CSPV products during the period of investigation.

[00:24:42] Speaker 04:
Just for your information, you've just begun to eat into your friend's time.

[00:24:46] Speaker 04:
Thank you.

[00:24:47] Speaker 04:
You and he can work that out.

[00:24:48] Speaker 06:
I don't want to do that.

[00:24:49] Speaker 06:
Your Honor, if you have further questions, I'd be happy to answer them.

[00:24:52] Speaker 06:
Otherwise, I'm going to yield my time.

[00:24:54] Speaker 06:
Thank you.

[00:25:05] Speaker 01:
Thank you, Your Honor.

[00:25:06] Speaker 01:
May it please the Court.

[00:25:07] Speaker 01:
I thought I would start by addressing the questions that you asked.

[00:25:10] Speaker 01:
And I think the questions on causation are extremely important.

[00:25:14] Speaker 01:
Also the question regarding grid parity.

[00:25:16] Speaker 01:
On causation, both the Commission and the Court of International Trade provided more than sufficient analysis on this point.

[00:25:25] Speaker 01:
As you know from this Court's own rulings, the buy reason of standard requires a showing that subject imports are more than a minimal or tangential

[00:25:33] Speaker 01:
cause of injury.

[00:25:34] Speaker 04:
That's not all it requires.

[00:25:36] Speaker 04:
That's like the two sentence statement about substantial evidence in the old Supreme Court case that say it's more than a scintilla, which is true, but doesn't begin to say what it is.

[00:25:47] Speaker 04:
What it is is actually something higher, which is reasonable.

[00:25:50] Speaker 01:
Correct.

[00:25:50] Speaker 01:
Yes.

[00:25:50] Speaker 01:
And also the statement of administrative action states that the commission has to examine

[00:25:55] Speaker 01:
factors other than subject imports, including things like non-subject imports.

[00:26:00] Speaker 04:
To find that in the absence of the subject imports, the domestic industry would not have been in the same state.

[00:26:08] Speaker 01:
Correct.

[00:26:09] Speaker 01:
And in this case... That is but for causation.

[00:26:12] Speaker 01:
Correct.

[00:26:13] Speaker 01:
And as the government stated, there's no specific words.

[00:26:19] Speaker 01:
The commission has a great deal of flexibility in terms of how it approaches this standard here by reviewing

[00:26:25] Speaker 01:
volume, price, impact of imports, and the alternative causes, it did conduct that required analysis.

[00:26:33] Speaker 02:
What do you think is the state of this court's case law in this area by reason of and causation?

[00:26:41] Speaker 02:
Do you think that we've already articulated some kind of delta between but for causation and our expectation for causation in a conventional kind of case?

[00:26:55] Speaker 02:
as opposed to some special circumstance like a fungible commodity case?

[00:27:03] Speaker 01:
Well, more broadly, I don't think there's a delta between what courts have held in other areas of law versus international trade law.

[00:27:12] Speaker 01:
I think this court has just provided guidance for, when the commission does this very complex causation analysis, what are the factors it has to look at and the alternatives it has to consider.

[00:27:23] Speaker 01:
There is the line of Bratz and Mittal tests, a very limited exception.

[00:27:29] Speaker 01:
Of course, Bratz stands for the prospect that if the dumped product is a commodity product, and thus there are non-subject imports present, then the commission has to determine whether subject imports would simply be replaced by non-subject imports.

[00:27:46] Speaker 01:
But what these respondents, the Chinese respondents, are asking for is much different.

[00:27:51] Speaker 01:
an expansion of the test, not to say that solar panels are a commodity, because they're clearly not, but that the electricity that they produce is a commodity.

[00:28:02] Speaker 01:
And therefore, what the respondents are arguing is that because things other than solar panels, natural gas, oil, nuclear power, can be used to generate electricity, the Commission had to look at whether the domestic industry would have been better off

[00:28:21] Speaker 01:
absent the subject imports.

[00:28:23] Speaker 01:
They did look at that.

[00:28:25] Speaker 04:
Let me just tell you what's confusing me.

[00:28:26] Speaker 04:
I don't understand why you say the brass metal line of cases is somehow narrow.

[00:28:32] Speaker 04:
It simply articulates that when there are real world facts in the market that affect but for causation, the commission has to address them.

[00:28:41] Speaker 04:
And that's equally true, regardless of whether it's a commodity or whether it's anything else.

[00:28:46] Speaker 04:
The state of the real world facts simply may differ.

[00:28:49] Speaker 04:
I don't understand why you think there's a doctrinal difference.

[00:28:55] Speaker 04:
If there's nothing to address outside the subject merchandise because there's no market effect of something outside the subject merchandise, well then there's nothing to address.

[00:29:08] Speaker 01:
Your Honor, I agree with that, but I would say that the initial cases involved a clear situation of a commodity product

[00:29:18] Speaker 01:
that would therefore be replaced by non-subject imports.

[00:29:22] Speaker 01:
But I agree that the Commission has to look at the entire landscape, it has to look at the other causes of injury, and it certainly did so here.

[00:29:31] Speaker 01:
With respect to grid parity, it focused on this quite clearly in its analysis to say the impetus toward grid parity failed to explain the significant underselling by subject imports.

[00:29:44] Speaker 01:
So it completely looked at that factor

[00:29:46] Speaker 01:
and looked at how demand for solar products increased as natural gas prices declined, as Your Honor pointed out, demonstrating that those factors were decoupled.

[00:29:56] Speaker 01:
So the evidence here was overwhelming.

[00:29:58] Speaker 01:
There was compelling factual evidence, and the analysis was also correct.

[00:30:02] Speaker 01:
Thank you, Your Honors.

[00:30:03] Speaker 03:
Thank you.

[00:30:06] Speaker 03:
Mr. Ellis, you have five minutes.

[00:30:10] Speaker 05:
Mr. Ellis, let me ask you this question.

[00:30:16] Speaker 05:
Hypothetical, but for a world, we would take out the accused products and look at the world as it is.

[00:30:26] Speaker 05:
Let's assume the Commission had done that, articulated it that way.

[00:30:34] Speaker 05:
They looked at the grid.

[00:30:39] Speaker 05:
They looked at competing industries, gas and so on.

[00:30:45] Speaker 05:
and they looked at the products that were in the market, et cetera.

[00:30:50] Speaker 05:
What is it that you think they would have added to their analysis had they done a spelled-out technical but for analysis?

[00:31:04] Speaker 05:
What aspect or what factors would now appear that they didn't look at?

[00:31:12] Speaker 00:
It would simply be a two-way

[00:31:15] Speaker 00:
analysis, competitive analysis of domestic industry, CSPV industry, and the grid and natural gas-based energy.

[00:31:26] Speaker 00:
Would the, the question is, would the U.S.

[00:31:30] Speaker 00:
industry have been any better off if subject imports did not exist?

[00:31:37] Speaker 05:
Yeah, I understand that's the but for question.

[00:31:38] Speaker 00:
But that would have been.

[00:31:39] Speaker 05:
But when you make that analysis, what are you going to look at?

[00:31:43] Speaker 00:
You would look at the same

[00:31:45] Speaker 00:
types of things, but not through the prism of how are subject imports behaving?

[00:31:55] Speaker 00:
What are subject imports doing?

[00:31:56] Speaker 00:
You don't care anymore.

[00:31:57] Speaker 00:
They're gone.

[00:31:59] Speaker 00:
So you have to look at what would the economic conditions of the US industry have been like in the absence of subject imports?

[00:32:05] Speaker 05:
So what was left out of their analysis the way they did it?

[00:32:10] Speaker 00:
They didn't do that at all.

[00:32:12] Speaker 00:
They didn't do that at all.

[00:32:13] Speaker 00:
They simply said,

[00:32:14] Speaker 00:
Here's a lot of things that the subject merchandise imports are doing that are bad.

[00:32:19] Speaker 05:
That's not all they said.

[00:32:23] Speaker 05:
They said, let's look at what the effect of changes in government regulations were.

[00:32:31] Speaker 05:
They looked at the question of what was the downturn in natural gas?

[00:32:37] Speaker 05:
What effect did that have?

[00:32:38] Speaker 05:
They looked at all of that, and then they factored it all together to decide whether

[00:32:45] Speaker 05:
Ultimately, the industry was injured in regard to the subject import.

[00:32:54] Speaker 05:
What's wrong with that?

[00:32:56] Speaker 00:
If one wants to do a full formal but for analysis, there are econometric ways and you can delete a certain mass of data.

[00:33:05] Speaker 00:
and say, what would the world have looked like in the absence of that data?

[00:33:08] Speaker 05:
Is that what you're arguing for?

[00:33:09] Speaker 00:
I'm not saying that's compulsory.

[00:33:11] Speaker 00:
That is what, in answering your question, that is what this sort of analysis could look like.

[00:33:16] Speaker 04:
But why?

[00:33:17] Speaker 04:
It seems to me you've just identified one possible form of concrete evidence.

[00:33:23] Speaker 04:
And why isn't the right response to that is every single piece of evidence that you submitted in support of your proposition that your imports were not what, in fact, caused the

[00:33:35] Speaker 04:
all of the suffering of the domestic industry, they addressed every bit of it.

[00:33:42] Speaker 00:
Well, the examples they gave, by the way, about the answers they gave about how grid parity interacted with, or how subject imports interacted with grid parity were, you know, conclusory and minimal.

[00:33:57] Speaker 00:
They just said that the grid parity, the drive to grid parity does not explain the underselling.

[00:34:02] Speaker 00:
But they don't explain, they don't say why, it's just said.

[00:34:07] Speaker 00:
And the other thing that they talk about is that demand went up anyway.

[00:34:10] Speaker 00:
As I discussed with Judge Chen, there are reasons why demand could have been going up.

[00:34:15] Speaker 00:
So there really isn't a discussion.

[00:34:19] Speaker 00:
I put it this way.

[00:34:21] Speaker 00:
There are many, many facts in this record.

[00:34:26] Speaker 00:
But there is not an analysis of how the industry would have fared in the absence of subject imports.

[00:34:33] Speaker 05:
Well, the ultimate question is causation.

[00:34:37] Speaker 05:
That's the ultimate question.

[00:34:40] Speaker 05:
And in any complex set of circumstances, it's difficult to say what is coincidence and what is causation.

[00:34:50] Speaker 05:
There's no formula for doing that.

[00:34:54] Speaker 05:
It's a question of judgment.

[00:34:56] Speaker 05:
It's a question of assessment.

[00:34:59] Speaker 00:
Am I wrong about that?

[00:35:01] Speaker 00:
Well, there are formulas, in fact, if one wants to engage in them.

[00:35:07] Speaker 00:
In any event, even if it's a question of judgment, it has to be applied pursuant to a legal rule that will get you a meaningful result.

[00:35:18] Speaker 00:
And here we just have a lot of facts that are put through the filter of the statute.

[00:35:23] Speaker 05:
The legal rule, according to the statute, is by reason of.

[00:35:27] Speaker 00:
What's wrong with that?

[00:35:32] Speaker 00:
Nothing.

[00:35:33] Speaker 00:
But how do you articulate, how do you apply that, those three words?

[00:35:38] Speaker 00:
The court has said, this court has said repeatedly, that there is something called a butt for analysis.

[00:35:43] Speaker 00:
And going back to your question to other counsel, the court seems to have, some of the cases have- You need to wrap up here.

[00:35:55] Speaker 04:
Whoa, sorry, okay.

[00:35:55] Speaker 00:
The court seems to have articulated a view that there are, in fact, different levels or different mechanisms

[00:36:03] Speaker 00:
by which the by reason of standard is applied in a regular case versus a case that has the triggering conditions identified in Mittal and Brotsk.

[00:36:14] Speaker 00:
And we think that the commission itself in this case has found the fundamental factual point that is that triggering mechanism requiring a more of a but for analysis and just grinding through the facts.

[00:36:27] Speaker 04:
Thank you very much.

[00:36:28] Speaker 00:
Thank you.

[00:36:28] Speaker 04:
Thanks to all counsel.

[00:36:30] Speaker 04:
Please be submitted.