NLMK Opposes US Steel's Bid to Intervene in Section 232 Exclusion Denial Case
U.S. Steel Corporation should not be allowed to intervene in a Section 232 exclusion denial case because it has already been denied this right three other times and has no interest that can support intervention, Russian steelmaker NLMK argued in a Nov. 17 brief to the Court of International Trade. The critical flaw in U.S. Steel's intervention bid is that case is about the Commerce Department's action and not about U.S. Steel, NMLK said (NLMK Pennsylvania, LLC v. United States, CIT #21-00507).
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In May, CIT denied U.S. Steel and other domestic steel producers the right to intervene in six challenges to Section 232 tariff exclusion denials (see 2105260037). The court found that the steel producers failed to claim a "legally protectable" interest in the transaction at issue in the case, have a direct relationship with the litigation or show that their interests are not adequately addressed by the U.S. government defense.
U.S. Steel appealed this decision for all six cases. This appeal led U.S. Steel to request a stay in the NLMK exclusion case until the question of intervention is resolved (see 2110280034).
However, U.S. Steel's attempt to "leap into the middle of a dispute" between, in this case, NLMK and the U.S. over the government's alleged failure to follow the Administrative Procedures Act, misunderstands the point of intervention, NLMK said. "While U.S. Steel did participate in the process before Commerce by successfully objecting to NLMK’s exclusion requests, the issue before the Court now is whether Commerce, not U.S. Steel, violated the APA by acting arbitrarily and capriciously in denying NLMK’s requests," the brief said. "On that score, U.S. Steel is simply a bystander; it has nothing to offer."
Also, U.S. Steel cannot continue to argue for intervention given the prior CIT decision and the fact that the identical arguments that the company makes have already been litigated, NLMK said. In its intervention motion, U.S. Steel argued that it was "uniquely interested" in defending the Section 232 exclusion denials since it had the capacity to make the steel products in question. However, this same argument was made and rejected already by CIT, NLMK said.
NLMK argued that the government can adequately defend the exclusion denials since this is a standard required by intervention. "Every judge in the Court of International Trade who has considered the issue has agreed that steel companies cannot intervene in Section 232 challenges because the government adequately protects their interests," the brief said. "... U.S. Steel nonetheless tries to argue that it should be allowed to intervene because it allegedly is 'best placed' to 'ensure the record is complete and accurate' ... . The argument makes no sense. The administrative record includes 'only those documents directly or indirectly considered by the agency.'"