Parties in Canadian Lumber Case File Further Arguments Regarding Impact of 'Loper Bright'
Three parties in a sprawling dispute over Canadian lumber each replied Feb. 21 to the U.S. argument that Loper Bright doesn't apply to judicial review of the Commerce Department’s administrative review of Canadian softwood lumber (see 2502140050) (Government of Canada v. United States, CIT # 23-00187).
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Each previously filed an initial brief on the issue Feb. 5 on request of the trade court (see 2502040045). The parties that filed were “Canadian parties” that included the Canadian government and exporters such as Canfor Wood Products Marketing; consolidated plaintiffs led by Resolute FP Canada; and the Committee Overseeing Action for Lumber International Trade Investigations or Negotiations.
The U.S. argued in its own brief that Loper Bright didn’t apply because, in Loper, the Supreme Court still held judicial deference to agency decisions was applicable when Congress explicitly granted those agencies broad discretion.
To that, the Canadian parties said Feb. 21 that the U.S. was asking the trade court “to disregard the most significant Supreme Court decision addressing judicial review of agency action in at least a decade."
“To accept their pleas would be to ignore the central holdings of Loper Bright that ‘Chevron is overruled,’ that ‘it makes no sense to speak of a ‘permissible’ interpretation that is not the one the court, after applying all relevant interpretative tools, concludes is best,’ and that [c]ourts must exercise their own independent judgment in deciding whether an agency has acted within its statutory authority,’” it said
It pointed out that Commerce’s controversial differential pricing analysis, around which much of the case revolves, had been upheld under Chevron’s reasonableness standard.
It urged the court not to find that Loper Bright had actually “enhanced” the deference Commerce was owed.
And it said that the purpose of deference, including that permitted by Loper Bright, was to recognize that some agencies have particular expertise in certain subjects. But Commerce doesn’t have expertise in statistical tests like the one it employs under its differential pricing method, it said.
Consolidated plaintiffs led by Resolute argued for the same conclusion, claiming that the case Garg Tube v. United States “does not stand for the sweeping proposition that Commerce’s targeted dumping analysis is entirely discretionary” and again arguing the department’s interpretation of antidumping duty law was unreasonable.
And the committee on lumber trade investigations took the opposite stance, saying that it agreed with the government that the U.S. Court of Appeals for the Federal Circuit had established precedent prior to Loper Bright that remains controlliing unless that court decided to overturn it.
Garg Tube, in which CIT also considered Loper Bright’s impact on Commerce’s differential pricing analysis, took the right approach, it said. That case held that the question of whether an exporter’s U.S. prices “differed significantly” was meant to be resolved by the department, as the law “necessarily affords Commerce flexibility to assess the degree of difference depending on the particular context.”