From my colleagues Alexandra Mertens and CJ Voss.
Ralls Corp. (“Ralls”), a company owned by two Chinese nationals and affiliated with the Sany Group, a global heavy manufacturing company (“Sany”), amended its lawsuit on Monday in an effort to overturn President Obama’s executive order requiring Ralls to divest itself of four 10 megawatt wind projects under construction near restricted airspace in Oregon (the “Oregon Projects”). Prior to the divestiture, Ralls is required to dismantle and remove all physical structures that have been installed on the site of the Oregon Projects, including at least 12 concrete foundations that have been fully or partially constructed. Citing national security concerns, the executive order gives the multi-agency Committee on Foreign Investment in the United States (“CFIUS”) broad authority to enforce its terms, including by accessing the premises and facilities of Ralls, the Oregon Projects, and Sany.
For additional background, please see our prior posts: Obama Blocks Chinese-Owned Wind Project and CFIUS Intervenes in Chinese-Owned Wind Project.
In response to both the executive order and a prior order issued by CFIUS, neither of which identify the specific nature of the national security risks arising from Ralls’s ownership of the Oregon Projects, Ralls alleges that CFIUS and the President exceeded their statutory authority by issuing the orders and asserts constitutional challenges to the orders, including that the orders violated the Due Process Clause of the Fifth Amendment. In its complaint, Ralls "emphatically denies that its acquisition of the [Oregon Projects] was intended to or will have or raise any risks or threats regarding the national security of the United States, and it denies that any credible evidence of such intent or effect exists.” The complaint goes on to assert that the development of the Oregon Projects will benefit the U.S. by creating jobs and providing a source of clean, renewable energy, albeit a small enough source of energy so as not to significantly impact the local utility’s supply one way or another. The complaint notes that, if constructed, the Oregon Projects would constitute about 0.37% of the utility’s total generating capacity. CFIUS and the President are expected to defend the orders which, according to the authorizing statute, are not subject to judicial review.