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Dorsey Takes London: Highlights from the INTA Annual Meeting

June 8, 2026

by Connor J. Hansen, J. Michael Keyes, Tiffany Shimada, Janet Wong, and Cathy Dahl

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The Dorsey Trademark, Copyright + Advertising team and the IP Litigation team attended the 2026 International Trademark Association Annual Meeting in London. The Dorsey team was represented by seventeen attorneys from Dorsey’s Minneapolis, Denver, Seattle, Dallas, New York, London, Hong Kong, and Beijing offices. We thoroughly enjoyed our time in London and want to share some highlights from the meeting:

Dorsey’s Reception – Dorsey’s annual INTA reception took place at the Churchill War Rooms, the remarkable underground headquarters where Winston Churchill and Britain’s wartime leadership coordinated military strategy during World War II. Tucked beneath the streets of Westminster and preserved largely as it was left in 1945, the War Rooms offered guests a rare opportunity to step inside a pivotal piece of history while connecting with colleagues, clients, and friends of the firm. From the historic Cabinet Room to the map-lined operations center and exhibits chronicling Churchill’s leadership, the venue provided an unforgettable backdrop for conversation and networking. The combination of a world-class setting, strong attendance, and an international group of guests made the reception one of the standout social events of INTA week and a memorable way to celebrate Dorsey’s relationships across the global trademark community.

Thank you to everyone who joined us at the reception and to the team who made the evening such a success! It was a pleasure to welcome guests to London during such an important week for the global IP community.

Dorsey’s LanhamAITM Platform – As trademark practitioners know, consumer surveys testing for a likelihood of confusion are becoming increasingly prominent and important in federal court litigation and in proceedings before the Trademark Trial and Appeal Board. Since 2022 alone, approximately one-third of court decisions addressing consumer surveys and related expert reports criticize or exclude the research.

Mike Keyes, consumer survey expert and the head of Dorsey’s Consumer Insights Group, and Connor Hansen, a Partner in Dorsey’s IP Litigation Group, debuted LanhamAITM during the INTA conference. LanhamAITM is an AI-powered platform developed by Dorsey to instantly analyze consumer survey research and deliver a curated analysis of how courts have evaluated similar research. It identifies potential flaws in the survey design, methodology, expert qualifications, and other common pitfalls identified by the courts. The platform has already proven to be a valuable tool for the Dorsey team and we are excited for its potential as we continue to refine and expand its capabilities.

Digital Advertising Panel – Dorsey Partner Tiffany Shimada was a speaker on a panel entitled Digital Advertising Under the Microscope: AI Claims, Dark Patterns, and Global Legal Trends. The panel discussed current case law developments around the world, including background and case law progeny of DABUS, and specifically ownership of AI created content through the lens of patent, trademark and copyright laws around the world and how regulatory bodies are influencing the landscape through the confluence of consumer and financial protection laws. Of note was agentic AI and how brands can and should plan for optimization of AI agents in marketing to AI consumers, including machine-readable specs, structured data, and value propositions that resonate with algorithms in addition to human consumers.

Regarding risks, the panel addressed scrutiny over AI washing and regulatory responses to AI washing claims. In particular, the panel addressed the U.S. Federal Trade Commission’s aggressive response to false and exaggerated claims of AI saving consumers and businesses money and efficiencies without proper substantiation. Such claims open the advertiser to actionable claims under Section 5 of the FTC for false and misleading advertising. Further, there is heightened risk for consumers of dark patterns, whereby AI optimizes manipulative interfaces at scale, personalizing friction and choice architecture, and drawing additional regulatory scrutiny for advertisers whether they engage directly or indirectly in dark patterns. In recent high-profile cases, dark patterns have led brands to pay high financial damages as well as reputational damage, which is difficult to predict and even harder to overcome once the damage has occurred and consumer impressions have formed.

Addressing the more practical aspects of using AI, the panel discussed advertising around the world and risk management for IP professionals coordinating global branding and marketing programs, including review of contractual provisions internally as well as for vendors, partners, and talent who may be utilizing AI in their products and services. Finally, the panel discussed how to manage IP portfolios and technology within existing global legal frameworks by keeping humans at the forefront of the process, documenting contributions as between humans and AI in the creation of IP, and making adequate disclosures—all while considering evolving consumer perceptions and technological developments.

The panel was moderated by Jayde Wood, a Partner at Gowling WLG (Canada) LLP. And Tiffany was joined on the panel by speakers Ryan Abbott from the University of Surrey Law School and Enrico Bonadio, Professor of Law, City St. George’s University of London.

Law Firm Committee Meeting – Cathy Dahl provides the following update of the Law Firm Committee meeting, held on May 5, 2026, at the Excel London: We had a great turnout for the Law Firm Committee meeting in London! The LFC focuses on the development of member benefits, services and educational programs specifically for law firms, with a particular focus on materials for mid-level associate and management-level IP professions. Key focuses for the LFC include looking forward to the future of law firms and their technological needs, particularly in connection with artificial intelligence, and providing insight and strategies to best position law firms for success.

Cathy is part of the Mid-Level Law Firm Professionals Subcommittee and leads the Career Pathways project team. The focus for the project team this term is to continue to develop materials that concentrate on options available to mid-level associates, including non-partnership and partnership tracks in a law firm, in-house legal opportunities, alternative careers in a law firm or complementary thereto, and how to navigate and identify potential opportunities based on individual goals and life circumstances. The overall messaging is that creating a career path should be individually intentional and that law firms must be ready to work with legal talent to create pathways that are both individually rewarding and that also benefit the firm.

Refurbishment of Genuine Goods in Korea – Judge Young Gi Kim of the Intellectual Property High Court discussed a recent Korean Supreme Court decision clarifying that refurbishment of genuine goods at the owner’s request for personal use does not constitute trademark infringement, as there is no use of the mark as a source identifier. However, the Court emphasized that this will depend on the facts. Where the refurbishing party plays a leading role, such that the activity goes beyond a personal service and begins to resemble commercial production, infringement may still arise. Relevant factors include control over design, ownership of the finished product, material sourcing and whether the goods enter commercial circulation. The discussion also noted the courts’ increasing willingness to award enhanced damages in cases of willful infringement.

Damages and Injunctive Relief in Japan – A judge from the Tokyo District Court, Intellectual Property Division, highlighted recent cases illustrating the Japanese courts’ pragmatic approach to enforcement. In particular, it was noted that where a defendant refuses to produce financial records, courts may rely on the plaintiff’s asserted figures as the basis for assessing damages, and may adjust royalty rates upward in light of bad faith conduct. In a separate Zoom case, the Tokyo District Court awarded damages for an earlier period of infringement but declined injunctive relief. While the marks were found to be similar, the court considered that the defendant’s mark had, over time, particularly during the COVID‑19 pandemic, gained sufficient independent recognition such that the likelihood of confusion had diminished. These examples highlight the Japanese courts’ flexible approach, both in addressing evidential issues and in assessing remedies by reference to evolving market realities.

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Construing Congressional Silence: With the Natural Gas Act’s Not Addressing Compensation in Pipeline Condemnations, Can Courts Use State Law to Award Attorney Fees?

On November 9, 2026, the Supreme Court will hear oral arguments in Leonard W. Hoffmann v. WBI Energy Transmission, Inc. to determine: “In private condemnations under the Natural Gas Act, should just compensation be determined by reference to state law?” North Dakota ranchers litigated the price of a natural gas pipeline easement during three years of condemnation proceedings, settled on the easement price, and were awarded attorney fees based on state law, but the fees were denied by Eighth Circuit, which held that because the Natural Gas Act (“NGA”) provision authorizing pipelines to use of eminent domain does not address compensation, the Fifth Amendment standard must necessarily apply, that is, “just compensation” for property, but not attorney fees.1 Four other circuits disagree. The Court will resolve the circuit split, likely making some pipeline condemnations less expensive and quicker or, alternatively, more expensive and take longer. Whatever the result, Congressional action could follow. Background Section 7(c) of the NGA requires the Federal Energy Regulatory Commission (“FERC”) to issue a certificate of public convenience and necessity, before new interstate natural gas pipeline facilities can be constructed and operated.2 Significantly, only a private party – not the federal government, not a state, nor a municipality – can obtain certificate authorization.3 The NGA did not initially address property acquisition, leaving certificate holders to rely on state condemnation law to secure necessary property rights to develop their projects, rendering some with “only an illusory right to build.”4 Congress resolved that by enacting NGA Section 7(h), which vests certificate holders with the ability to exercise eminent domain in a federal or state court where the property is located.5 Yet Section 7(h) does not address compensation: it does not indicate whether attorney fees can be recovered; “it does not even expressly require that just compensation be provided.”6 Litigation over the meaning of the Congressional compensation silence ensued. After Years of Litigation, Parties Agreed on Easement Price, but Not Attorney Fees In February 2018, WBI Energy Transmission, Inc. (“WBI”) received certificate authorization to construct and operate approximately 12 miles of 24-inch diameter pipeline through ranch land in western North Dakota, in the heart of the oil and gas producing Bakken formation of the Williston Basin.7 WBI and the ranchers could not agree on an easement price: the ranchers had recently negotiated easement prices with oil pipelines (which do not have eminent domain rights and must pay “market” prices to obtain easements) and sought a similar deal,8 but WBI was unwilling, instead offering only what it paid for a parallel natural gas line easement years earlier.9 So WBI filed in federal district court a complaint to take by eminent domain a permanent easement and temporary rights-of-way to construct the pipeline. Shortly thereafter, with the agreement of the ranchers, the court ordered that WBI could have immediate use and possession of the easements necessary for construction, leaving for trial the amount of compensation.10 The Fifth Amendment guarantees that private property shall not be taken for public use without just compensation.11 WBI and the ranchers disagreed on what constitutes “just compensation.” WBI maintained that compensation should be determined solely by the “before and after rule” – i.e., the difference between the market value of the land free of the easement and the market value burdened with the easement.12 The ranchers argued that other factors should also be considered, such as market rate paid by oil pipelines for easements on the properties.13 WBI filed a motion in limine to exclude evidence and testimony of such payment information, which the trial judge denied,14 leading to a confidential settlement on the value of the easement, with the ranchers’ reserving their right to seek attorney fees and expenses and WBI’s reserving its right to contest. After three years of litigation, the ranchers sought to recover $383,375.76 – that is, $332,274.96 in legal fees and $50,650.86 in costs and expenses.15 WBI claimed that the amount was unreasonable and should be limited to $220,625.52.16 The trial court, recognizing that the NGA was silent on compensation issues, relied on United States v. Kimbell Foods, Inc.17 to analyze whether to “fill in the gap” with North Dakota condemnation law and ultimately concluded it could award attorney fees and costs.18 WBI appealed. Four Circuits Rely on Kimbell Foods and State Law to Award Attorney Fees Courts have recognized the difference between condemnations by the federal government and a private party: “the sovereign need only pay for what it actually takes rather than for all that the owner has lost.”19 “[W]here the federal government is the condemnor there exists a significant concern about the spending of federal dollars, one that does not exist when a private entity is the condemnor . . . pursuing the condemnation ‘for purposes of profit.’”20 As such, four circuit courts have applied federal common law to allow recovery of attorney fees and costs in condemnations under the NGA.21 “In crafting such federal common law, courts need not inevitably … resort to federal rules,”22 but rather, after weighing various considerations set forth in the Supreme Court’s 1979 opinion in Kimbell Foods, can apply state law.23 In particular, the four circuits answered “no” to each of the following three questions posed in Kimbell Foods: “(1) whether the federal program, by its very nature, required uniformity; (2) whether application of state law would frustrate specific objectives of the federal program; and (3) whether application of uniform federal law would disrupt existing commercial relationships predicated on state law.”24 The Eighth Circuit took a different tack. Eighth Circuit Reversed and Barred Attorney Fees, Breaking with Sister Circuits The Eighth Circuit framed the issue this way: “Under North Dakota law, as the district court points out, attorney fees are available in condemnation proceedings. WBI’s view is that federal law applies because it was exercising the eminent-domain power of the United States, which would owe no attorney fees if it did the condemning.”25 The court then held: “Just compensation” under the Fifth Amendment has a well-established legal meaning that usually equates to “market value,” the “full monetary equivalent of the property taken.” * * * But the focus is always on the value of the property itself, not what the owner spends trying to keep it. * * * Under the Fifth Amendment, property owners cannot recover for “indirect costs” like attorney fees and expenses. Only a statute can require more. * * * [T]he Natural Gas Act says nothing about the measure of compensation due to a property owner.  It does not even use the words “just compensation,” let alone say that attorney fees are available or that an agency or state law can provide them. Without such an exercise of “legislative grace,” the default rules applies: “just compensation” under the Fifth Amendment.26 The Eighth Circuit recognized “that different concerns are at stake when the United States is exercising its own power under the Fifth Amendment…. But these are policy arguments better addressed to Congress.”27 Petition For Writ of Certiorari Granted to Resolve Circuit Split The ranchers filed with the Supreme Court a petition for a writ of certiorari to resolve the split between the Eighth Circuit and four other circuits.28 WBI initially opposed the petition,29 but relented after the Solicitor General urged the court to grant petition and uphold the Eighth Circuit opinion.30 The attorneys general of ten states31 and a national network of eminent domain and property lawyers filed amici curiae (friends of the court) briefs in support of the ranchers’ petition.32 Shortly after WBI and ranchers filed supplemental briefs,33 the Supreme Court granted the petition for certiorari on June 26, 2026.34 Ranchers Focused on Statutory Interpretation, Six Amici on Economic Fairness Rather than rely primarily on Kimbell Foods, the ranchers’ merits brief used statutory interpretation to argue that private condemnation lawsuits under the NGA should use state law compensation rules.35 They contend that, in contrast to various ways that the federal government can take land,36 NGA Section 7(h) grants a limited “delegation of power to take property through a condemnation lawsuit – to file what is sometimes called “a straight condemnation,”37 where authorization to take property is not sought, but instead for the court to adjudicate the value of the property: “If the condemnor wants to buy the property at the court’s price, it tenders payment; if not, it can abandon the condemnation.”38 Thus, the ranchers submit that their rights to compensation under the NGA flow not from the Fifth Amendment, but rather from the NGA’s authorizing “the filing of a lawsuit whose purpose is to adjudicate how much they must be paid for their land.”39 If the condemnor were the federal government, compensation would not be greater than the Fifth Amendment minimum, absent statutory authorization;40 but that does not require the same to result in a private condemnation. The ranchers suggest that several additional reasons support using state law to resolve property compensation issues. First, given that real property law “lies at the core of traditional state authority”,41 compensation should consider “North Dakota’s rule that property owners cannot be made to bear the cost of their condemnation….”42 Second, based on the “Court’s longstanding practice of borrowing state substantive law,” the issue is not whether NGA Section 7(h) incorporates state land valuation rules, but “whether the statute preempts them.”43 Third, unless an easement’s value is above a statutory minimum,44 the condemnor can only file in state court: “If Congress expected those state courts to look to a source of law other than the one they would ordinarily look to in a property case, one could expect it to have left some hint to that effect in the text. But there isn’t one.”45 Fourth, awarding attorney fees under state law is consistent with the purpose of NGA Section 7(h): Respondent suggests that Congress, out of a desire to fix a problem in Missouri (where interstate natural-gas companies lacked an eminent-domain cause of action), also decided to take some money away from farmers and ranchers in places like Iowa (where the companies already had a cause of action). Surely not.46 Six groups filed amicus briefs supporting the ranchers.47 Among them, Florida property owners, who were involved in a different condemnation proceeding,48 contend that (1) compensation rules for federal government acting in its own name should not apply to private, for-profit companies acting under a limited delegation of eminent domain,49 and (2) “property owners who are without economic wherewithal proceed in an unrepresented fashion and are typically forced to accept a compromise close to the amount of the private licensee company’s low offers because they are not otherwise with the means to prepare their own valuation estimates and defend their respective constitutional entitlement to compensation.”50 This was reinforced by a group of property lawyers: In 2016, under the auspices of the Natural Gas Act (“NGA”), the Sabal Trail natural gas pipeline project in Florida took land from Ryan B. Thomas and offered him $6,800 in exchange. A Florida jury later determined that the measure of compensation for Sabal Trail’s taking was $463,439. Sabal Trail had thus initially offered Mr. Thomas 1.4% of his land’s value. Between the initial offer and the jury’s determination of compensation lay months of litigation work by Mr. Thomas and his attorney.51 The property lawyers also argued that affirming the Eighth Circuit’s decision would strip property owners of state law protections in 21 states.52 WBI Argued NGA Silence on Attorney Fees Intentional, Supported by Three Amici WBI’s merits brief contends that condemnation by a private party is nothing new and does not require a different set of rules from the Federal government’s condemning land: “For as long as the eminent domain power has been exercised by the United States, it has also been delegated to private parties.”53 These private delegatees “knitted together the expanding nation by building railroads, bridges, roads, and telegraph and telephone lines”54 and, absent a Congressional directive, paid the fair market value of the property taken, as required by the Fifth Amendment.55 WBI points to a 1943 case, United States ex rel. Tennessee Valley Auth. v. Powelson,56 which summarized then existing law: “[i]n the absence of a statutory mandate, the sovereign must pay only for what it takes, not for the opportunities which the owner may lose”.57 Indeed, Congress knew how to depart from the Fifth Amendment’s fair-market-value measure of condemnation compensation: “One year before enacting Section 717f(h), in the General Bridge Act of 1946, Congress authorized private parties to condemn land for bridges and expressly required that compensation ‘be ascertained and paid according to the laws of [the] State’ where the property sits.”58 Additionally, WBI argues that the ranchers essentially urge the court to adopt a patchwork of individual state compensation laws, which would undermine what Congress did in enacting NGA Section 7(h) --“eliminate state-by-state variation in NGA condemnations so that certificate-holders could efficiently construct interstate pipelines.”59 Three amicus briefs were filed in support of WBI, including one from the Attorney General, who reiterated: “Just compensation under the Fifth Amendment ‘is for the property, and not the owner. Accordingly, ‘indirect costs to the property owner caused by the taking of his land,’ such as ‘attorneys fees’ are ‘generally not part of the just compensation to which his is constitutionally entitled.’”60 Another amicus brief filed by trade associations claimed that interstate natural gas pipelines are responsible stewards of eminent domain, exercising it only as a last resort, as evinced by a survey indicating that, over a recent nine-year period FERC-certificated pipeline projects more than ten miles in length (25,268 tracts) resulted in only 10% of the tracts requiring condemnation and less than one percent (1%) required litigation.61 Finally, the US Chamber of Commerce emphasized the importance of natural gas to businesses,62 and urged the Court not to create obstacles that would “chill investment in essential infrastructure….”63 Crystal Ball Judicial Tension between “Strict Construction” and Support for Property Rights? Hoffmann could set up a clash between a favored method of the Supreme Court for resolving conflicts and a centuries’ long commitment to protecting a fundamental right. Questions during oral arguments could foreshadow which way the Court will lean. On one hand, the Court could rely on NGA Section 7(h)’s “’plain meaning’ derived from an ordinary understanding of the words and structure of the statutory text.”64 Consider the Supreme Court’s rationale in Dobbs v. Jackson Women’s Health Organization,65 which overruled the landmark Roe v. Wade:66 “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provisions including . . . the Due Process Clause of the Fourteenth Amendment.”67 This type of “strict construction”68 aligns most closely with WBI’s argument that Section 7(h) does not specifically provide for attorney fees, and the silence was intentional, given that Congress expressly permitted recovery of attorney fees in eminent domain actions under the General Bridge Act of 1946, the year before enactment of NGA Section 7(h).69 On the other hand, the ranchers’ arguments resonate with a long line of cases protecting property rights. More than 130 years ago, the Court in Monongahela Nav. Co. v. U.S.70 explained that in condemnation cases the courts should adhere to “the rule that constitutional provisions for the security of person and property should be liberally construed.  A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right….”71 Half a century ago, the Supreme Court, in Lynch v. Household Fin. Corp,72 emphasized: “Property does not have rights. People have rights.”73 Three years ago, all nine justices, in Tyler v. Hennepin County, Minnesota,74 ruled for a property owner, holding that a local government cannot keep the surplus profit after selling a seized home for unpaid taxes.75 The policies in these (and other cases cited by the ranchers) would appear to support landowners’ recovering the costs incurred to defend their property in condemnation proceedings. Whether a strict construction of NGA Section 7(h) permits those policies to be realized in Hoffmann remains to be seen. Implications and Possible Congressional Action The amount of compensation offered by pipelines and the length of condemnation proceedings may change, depending on how the Supreme Court rules. If the Court upholds the Eighth Circuit opinion – and concludes that attorney fees and costs cannot be recovered –a landowner may be presented with an unsavory decision: accept the pipeline’s offer or, alternatively, refuse the offer, go to court, and watch legal fees erode any compensation ultimately received. Worse yet, with litigation unlikely, pipelines may submit “low ball” offers, believing that the landowner will not likely want to risk costly litigation. Conversely, if the Supreme Court reverses the Eighth Circuit and holds that attorney fees and costs can be recovered, the number of condemnation cases could increase, as landowners’ eyeing large payouts reject pipeline offers and take their chances in court. This in turn could increase pipeline costs (that are passed on to ratepayers). In short, depending on the Supreme Court rules, pipeline condemnations could become less expensive and quicker or, alternatively, more expensive and take longer. No matter how the Supreme Court rules, Congressional action could (and arguably should) follow. If the Eighth Circuit opinion is affirmed, Congress may be pressured to protect landowner property rights by amending NGA Section 7(h) to provide for the recovery of attorney and fees and costs. Under similar circumstances in 1954, Congress responded to an unpopular Supreme Court opinion on federal regulatory jurisdiction by amending the NGA.76 But even if the Eighth Circuit opinion is reversed, the result would be a geographical crazy quilt of federal common law stitched together from applicable state condemnation statutes, tying recovery of attorney fees in NGA condemnations to the state law in which the property is located, possibly leading to disparate cost recovery by landowners for the same pipeline project, prompting calls for a clear, uniform rule. 1 Click on the hyperlink in the body to access all motions and briefs submitted in the Supreme Court proceeding. 2 NGA § 7(c), 15 U.S.C. § 717(c)(1)(A) (“No natural-gas company … shall … undertake construction of extension of facilities … unless there is in force with respect to such natural gas-company a certificate of public convenience and necessity….). 3 Id. § 2, 15 U.S.C. § 717a (“’Natural-gas company’ means a person engaged in the transportation of natural gas in interstate commerce….; ‘Person’ includes an individual or a corporation.”). 4 PennEast Pipeline Co. v. New Jersey, 594 U.S. 482, 489 (2021). 5 NGA § 7(h), 15 U.S.C. § 717f(h), Pub. Law No. 80-245, 61 Stat. 459 (1947). Section 7(h), in pertinent part, provides: When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property . . . , it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located, or in the State courts. Id. 6 Tennessee Gas Pipeline Company, LLC v. Permanent Easement for 7.053 Acres, 931 F.3d 237, 243 (3d Cir. 2019). 7 Under FERC’s regulations, once issued a “blanket certificate,” an interstate natural gas pipeline may file a “prior notice” for certificate authorization to construct and operate facilities of limited cost, which, if not protested within 60 days after publication in the Federal Register, is authorized by operation of law. 18 C.F.R. § 157.205. On November 30, 2017, WBI filed a prior notice request to construct and operate certain facilities in McKenzie County, North Dakota; because no protests were filed, certificate authorization for the pipeline project was granted by operation of law. WBI estimated the project cost to be $27.2 million (WBI’s Prior Notice Request, Docket No. CP18-21-000 (Nov. 30, 2017) at 8), including $1,115,153 in pipeline right-of-way costs. WBI’s Supplemental Prior Notice Filing, Docket No. CP18-21-000, Exhibit K (Dec. 7, 2017) (Estimated Cost of Facilities). 8 “Leonard Hoffman was offered roughly half the market rate for gas pipeline access across his pastureland….” Chris Bennett, “Lowballed by Eminent Domain, ND Farmers Appeal Landmark Case to Supreme Court,” AG Web (Sept. 16, 2025) https://www.agweb.com/news/business/farmland/lowballed-eminent-domain-nd-farmers-appeal-landmark-case-supreme-court. 9 The pipeline at issue would run parallel to an existing pipeline on the ranchers’ land, which WBI uses to transport gas from the Wild Basin and Garden Creek processing plants to an interconnection with the pipeline system of Northern Border Pipeline Company. Brief of Respondent, Leonard W. Hoffman v. WBI Energy Transmission, Inc., No. 25-159 (filed Sept. 14, 2026) (“Respondent’s Brief”) at 7; id. (“Despite having earlier reached voluntary agreements for WBI’s immediately parallel pipeline at substantially lower rates, petitioners rejected WBI’s compensation offers.”) (citation omitted). 10 WBI Energy Transmission Inc. v. Easement and Right-of-Way Across, 189.9 rods, more or less, Case No. 1:18-cv-078, slip op. (D.N.D. May 7, 2018) (order adopting stipulation). 11 U.S. Const. amend. V (takings clause). 12 See United States v. 1129.75 Acres of Land, 473 F.2d 996, 998 (8th Cir. 1973) (“When land is taken by eminent domain, and the title acquired is not a fee, but merely an easement, the proper measure of damages is the difference between the market value of the land free of the easement and the market value burdened with the easement.”). 13 WBI Energy Transmission, Inc., v. Easement and Rights-of-Way Across 189.9 rods, more less, Case No. 1:18-cv-078, slip op. at 3 (D. ND, April 1, 2021) (Order Denying Plaintiff’s Motion in Limine to Exclude Evidence of Other Transactions). 14 Id. at 17 (“In this case, it may be appropriate for the fact finder to consider comparable pipeline easement transactions, particularly based on the unique natura of pipeline development in the Bakken oil field development occurring in McKenzie County, North Dakota.”). 15 The legal fees were “based upon a total of 1,295.4 hours, billed at hourly rates ranging from $115 to $350.” WBI Energy Transmission, Inc. v. Easement and Right-of-Way Across 189.9 rods, more or less . . . ., 2024 WL 1477719 (D. ND March 5, 2024). “The expenses include payments for court fees, travel expenses, legal research, and expert witness fees.” Id. 16 Each party and various amici curiae have expended considerable time and money to resolve the slightly more than $150,000 difference between the attorney fees and costs actually incurred ranchers and what WBI considered reasonable, underscoring that from the start this appeal has been about whether attorney fees should be awarded, not whether the ranchers’ attorney fees were reasonable. 17 440 U.S. 715 (1979). 18 WBI Energy Transmission, Inc., 2024 WL 1477719. 19 Tennessee Gas Pipeline, 931 F.3d at 244 (citations omitted); cf. Georgia Power, 617 F.2d at 1118 (“Thus by definition a licensed project does not implicate the interests of the United States to the degree that is thought desirable that the project be undertaken by the United States itself.”). 20 Tennessee Gas Pipeline, 931 F. 3d at 249 (citation omitted). 21 See Tennessee Gas Pipeline Company, LLC v. Permanent Easement for 7,053 Acres, 931 F.3d 237, 245 (3d Cir. 2019). The court explained: “Federal common law refers to the development of legally binding federal rules articulated by a federal court which cannot be easily found on the face of a constitutional or statutory provision.” The need for common lawmaking “stems from the inability of legislators to anticipate every possible contingency and the impracticality of judges[‘] returning all unanswered questions to the legislature.” Id. (citations omitted). The Third Circuit explained that “when Congress has not spoken in an area comprising issues substantially related to an established program of government operation, … the Supreme Court has direct[ed] federal courts to fill the interstices of federal legislation according to their own standards.” Id. (internal quotations and citations omitted). 22 Id. (citation omitted). 23 Id. The Supreme Court in Kimbell Foods was tasked with either crafting a uniform, national rule or, alternatively, utilizing state law, to determine whether contractual liens under federal loan programs take precedence over private liens. After establishing and applying a three-part test, the Court ultimately decided that nondiscriminatory state laws should be utilized. 440 U.S. at 740. The 3rd Circuit in Tennessee Gas Pipeline ruled that Kimbell Foods “and its progeny reflect a presumption in favor of state law, one not rebutted here.” 931 F.3d at 255. 24 The 5th Circuit applied Kimbell Foods first in a condemnation involving the Federal Power Act (Georgia Power Co. v. 138.30 Acres of Land, 617 F.2d 1112 (5th Cir. 1980)) and later in an NGA condemnation. Mississippi River Transmission Corp. v. Goerge S. Tabor, 757 F.2d 662 (5th Cir. 1985). The 6th Circuit (Columbia Gas Transmission Corp. v. Exclusive Natural Gas Storage Easement, 962 F. 2d 1192 (6th Cri. 1992), 3rd Circuit (Tennessee Gas Pipeline Co., 931 F. 3d at 245-46), and 11th Circuit also followed suit. Sabal Trail Transmission, LLC v. 18.27 Acres of Land in Levy County, 59 F.4th 1158 (11th Cir. 2023). The geographic footprint of each of these four circuits include significant oil and gas formations and, therefore, associated pipeline transportation systems: Third Circuit (Marcellus Formation), Fifth Circuit (Eagle Ford, Haynesville, and Permian Formations), Sixth (Devonian, Marcellus, and Utica Formations), and Eleventh Circuit (transmission from Marcellus and Utica Formations). These formations account for approximately 75% of the natural gas produced in the U.S. Ryan Bellafontaine, “Mapped: Where is U.S. Natural Gas Produced?” (Aug. 17, 2026) (Sources: EIA 2026) https://www.visualcapitalist.com/sp/sc02-mapped-where-is-u-s-natural-gas-produced/. 25 WBI Energy Transmission, Inc. v. 189.9 Rods, More or Less, 1332 F.4th 1058, 1060 (8th Cir. 2025). 26 Id. at 1060-61. 27 Id. at 1062. 28 Leonard W. Hoffmann v. WBI Energy Transmission, Inc., petition for cert. filed, No. 25-159 (U.S. Aug. 7, 2025) at 8-11. The petition was a long shot. Each year, the Court reportedly receives more than 7,000 petitions for a writ of certiorari, but only hears oral argument for 100 or less. Nora Collins, “The serious decline in petitions before the Supreme Court,” SCOTUS Blog (May 11, 2026) https://www.scotusblog.com/2026/05/the-serious-decline-in-petitions-before-the-supreme-court/. 29 WBI argued that “this case is a poor vehicle for review of the question presented” because North Dakota does not require, but merely allows the award of attorney fees (Brief in Opposition of WBI Energy Transmission, Inc. No. 25-159 (Oct. 2025) at 2) and urged the Court to wait and see if other courts agree with the 8th Circuit. Id. 30 Brief for the United States as Amici Curiae, No. 25-159 (May 22. 2026) at 2. 31 The ten states on brief included North Dakota, Alabama, Arkansas, Florida, Idaho, Indiana, Louisiana, Nebraska, South Carolina, South Dakota, Tennessee, and Texas. Brief of North Dakota, as Amici Curiae in Support of Petitioners, No. 25-159 (Sept. 8, 2025) at 4 (“just compensation” should be determined under state law because, among other things, the NGA “was not intended to displace traditional state authority for assessing real property value.”). 32 Owners’ Counsel of America as Amici Curiae in Support of Petitioners, No. 25-159 (Sept. 10, 2025) at 8 (presenting a survey showing that property owners in nearly half the states “would be stripped of their guaranteed rights if the Eighth Circuit’s choice-of-law analysis were adopted nationwide.”). 33 Respondent’s Supplemental Brief, No. 25-159 (June 8, 2026) at 1 (agreeing that cert should be granted, but “reserv[ing] the right to argue on remand, should it become relevant, that North Dakota law does not in fact include attorneys’ fees in the state’s measure of just compensation.”); Petitioners’ Supplemental Brief, No. 25-159 (June 5, 2026) at 2 (contrary to the Attorney General’s argument, requiring condemnors to pay for attorney fees would not incentivize landowners to draw out disputes to increase a potential fee award, any more than the status quo encourages condemnors to make unreasonable compensation offers). 34 https://www.supremecourt.gov/qp/25-00159qp.pdf; Sup. Ct. R. 16. (if a petition for certiorari is granted, “[t]he case then will be scheduled for briefing and oral argument.”). 35 The ranchers’ merits brief argues that the Kimbell Foods analysis leads to the same result as the statutory interpretation analysis. Brief of Petitioner, Leonard W. Hoffman v. WBI Energy Transmission, Inc., No. 25-159 (filed August 13, 2026) (“Petitioners’ Brief”) at 37-42. 36 Id. at 13-14 (unlike private parties, the federal government can take property by (1) seizing private property directly, leaving the owners to sue for compensation or (2) invoking the Declaration of Taking Act, where a condemnor takes immediate title to property, leaving compensation litigation for another day). 37 Id. at 14, citing Kirby Forest Indus., Inc. v. U.S., 467 U.S. 1, 3 (1984). 38 Petitioners’ Brief at 14. 39 Id. at 15. 40 Petitioners’ Brief at 15-16, citing Library of Congress v. Shaw, 478 U.S. 310, 317 & n.5 (1986). 41 Petitioner’s Brief at 17, quoting Sackett v. EPA, 598 U.S. 651, 679 (2023). 42 Petitioners’ Brief at 18; see also id. at 24 (arguing that, for nearly two centuries, Congress has known that the Supreme Court routinely interpreted federal claims by applying substantive state law), citing McCluny v. Silliman, 3 Pet. 270, 276, 278 (1830 (applying state limitations period to plaintiff’s rights under federal law). 43 Petitioners’ Brief at 26; see Agency Holding Corp. V. Malley-Duff & Associates, Inc., 483 U.S. 143, 158 (1987) (Scalia concurring). Thus, for example, “congressional silence on the [statute of] limitations issue is ordinarily insufficient to pre-empt state statutes….” Agency Holding Corp., 483 U.S. at 162. 44 See NGA § 7(h), 15 U.S.C. § 717f(h) (“the United States district courts shall only have jurisdiction of cases when the amount claimed by the owner of the property to be condemned exceeds $3,000.”). 45 Petitioners’ Brief at 29. 46 Id. at 32. 47 Six amicus briefs supporting the ranchers were filed on August 13, 2026 in Leonard W. Hoffman v. WBI Energy Transmission, Inc., No. 25-159: Brief of Florida Property Owners Ryan Thomas, Lee Thomas Trust, and Sunderman Groves, Inc. (“Florida Property Owners Brief”); Brief of Gary R. Erb and Lynda Like (“Pennsylvania Property Owners’ Brief”); Brief of Owners Counsel of America (“Owners Counsel Brief”); Brief of Landowner Groups, (“Landowner Groups’ Brief”); Brief of Pacific Legal Foundation (“PLF Brief”); Brief of National Association of Realtors, American Farm Bureau Federation, and Realtors Land Institute (“Realtors Brief”). 48 The Florida property owners report that ten years ago Sabal Trail Transmission, LLC (“Sabal Trail”) filed 263 condemnation cases in federal courts for a 247-mile corridor to construct a 36-inch pipeline to transport 1 Bcf/day. Florida Property Owners Brief at 13-14. In August 2026, the Florida property owners received notice that Sabal Trail is evaluating expansion pipeline project running near or along the current route for 482 miles, (id. at 14) increasing the stakes at issue in Hoffmann. 49 Id. at 8-9 (“Federal actors are ultimately accountable to federal officials, sworn to uphold the Constitution, charged with promoting the public good, and held accountable by the voters on Election Day. * * * And, in direct federal condemnations, the federal government retains a continued ownership interest in the property taken . . . .”); see Pennsylvania Property Owners’ Brief” at 2 (while NGA § 7(h) delegates the power to condemn, “it does not transfer every rule or governmental protection that accompanies condemnation by the United States.”); id. at 7, citing U.S. v. Carmack, 329 U.S. 230, 243, n.13 (1946) (distinguishing federal officers acting for the sovereign from private entities authorized to condemn “on behalf of themselves”, whose grants “are, in their very natural grants and of limited powers” that “do not include sovereign powers greater than those expressed or necessarily implied.”). 50 Florida Property Owners’ Brief at 4; id. at 5 (for private licensee companies exercising eminent domain rights under the NGA, “the Fifth Amendment’s measure of compensation should serve as a floor and not a ceiling” -- to do otherwise, “state created rights to attorneys’ fees will be stricken in six of the seven states of the Eighth Circuit, and will be at serious risk in at least 15 other states if the Eighth Circuit’s new-fashioned split widens.”). 51 Owners Counsel Brief at 2 (internal citations omitted). “In the Sabal Trail pipeline litigation, condemnors spent a combined $8.3 million on appraisal work alone across the project.” Id. at 6 (citation omitted); see also Landowner Groups’ Brief at 5 (“The Eighth Circuit’s decision threatens to alter that bargaining framework well before any condemnation proceedings begin. If a company exercising eminent domain … may disregard state compensation protections and pay only the federal constitutional minimum, its fallback position becomes less costly, changing the baseline against which voluntary easement negotiations occur.”). 52 Owners Counsel Brief at 10-17 (list of 21 state statutes providing condemnation protection); see PLF Brief at 4 (distinguishing cases relied on by the 8th Circuit); see also Realtors Brief at 5 (cautioning that the 8th Circuit’s reasoning could incentivize “advocates for more public control of private interests….”) (citation omitted). 53 Respondent’s Brief” at 2, quoting PennEast, 594 U.S. at 495; see Respondent’s Brief at 2, quoting Luxton v. North River Bridge Co., 153 U.S. 525, 530 (1894) (Congress “may at its discretion, use its sovereign powers, directly or through a corporation * * * for the accommodation of interstate commerce.”). 54 Respondent’s Brief at 4. 55 Id. at 2, United States v. Miller, 317 U.S. 369, 374 (1943) (“[T]he courts early adopted, and have retained the concept of fair market value” as the appropriate compensation); United States v. New River Collieries Co., 262 U.S. 341 344 (1923) (“More would be unjust to the United States, and less would deny the owner what he is entitled to.”). 56 United States ex rel. Tennessee Valley Auth. v. Powelson, 391 U.S. 266 (1943). 57 319 U.S. at 281-82. 58 Respondent’s Brief at 2, quoting 33 U.S.C. § 532. 59 Respondent’s Brief at 28 (citation omitted). 60 Brief for the United States, Leonard W. Hoffman v. WBI Energy Transmission, Inc., No. 25-159 (filed Sept. 21, 2026) at 12 (citations omitted). The Attorney General also noted that the Supreme Court had recently ruled that eminent domain power delegated to a certificate holder is “categorical,” that is, absolute and unconditional. Id. at 10, citing PennEast Pipeline Co., 594 U.S. at 498. 61 Brief of the Interstate Natural Gas Association of America and American Petroleum Institute, Leonard W. Hoffman v. WBI Energy Transmission, Inc., No. 25-159 (filed Sept. 21, 2026) at 11. “INGAA” is the natural gas pipeline trade association, while “API” represents all aspects of the oil and gas industry. Id. at 1. 62 Brief of the Chamber of Commerce of the US, Leonard W. Hoffman v. WBI Energy Transmission, Inc., No. 25-159 (filed Sept. 21, 2026) at 4-6. 63 Id. at 9. 64 Bradley C. Karkkainen, “Plain Meaning”: Justice Scalia’s Jurisprudence of Strict Statutory Construction,” 17 Harv. J.L. & Pub. Pol’y 401 (1994). 65 597 U.S. 215 (2022). 66 410 U.S. 113 (1973). 67 Id. at 231. 68 See id. at n.9 (strict construction “refers to a construction that narrows the scope of coverage or application of a statute….”). 69 See West Virginia v. EPA, 597 U.S. 697, 723 (2022) (“We presume that ‘Congress intends to make major policy decisions itself, ….”) (citation omitted). In applying the “major question doctrine,” the Court explained: “The question there [American Elec. Power. Co. v. Connecticut, 564 U.S. 131 (2011)] however, was whether Congress wanted district court judges to decide, under unwritten federal nuisance law, ‘whether and how to regulate carbon dioxide emissions from powerplants. We answered no….”’ 597 U.S. at 731. Another reason supports the efficacy of WBI’s argument: the Roberts Court has been labeled “business friendly,” with business winning on average 71% of the cases before the Supreme Court from 2010-20. Lee Epstein and Mitu Gulati, “A Century of Business in the Supreme Court, 1920-2020,” 107 Minn. L. Rev. 49, 59 & n.36-37 (2022). 70 148 U.S. 312 (1893). 71 Id. at 325. The Court concluded that if the government condemns a series of locks and dams built by a company to make a river navigable, whose passage is compensated with tolls, it must compensate a company not just for the value of the tangible property, but also for the franchise to take tolls. Id. at 344-45. 72 405 U.S. 538 (1972). 73 Id. at 552. After lower courts allowed a credit union to seize a woman’s savings account (without notice) for failure to repay a loan, the Court remanded and explained: “The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a ‘personal’ right ….” Id. (emphasis added). 74 598 U.S. 631 (2023) (J. Gorsuch and J. Jackson concurring). 75 After Hennepin County sold her condominium $40,000 to satisfy a $15,000 tax bill and kept the surplus, a 94-year-old woman filed claims (under the takings clause of the Fifth Amendment and Excessive Fines Clause of the 8th Amendment) against the county, which the trial court dismissed for failure to state a claim, and the 8th Circuit affirmed. 598 U.S. at 635-36. In a companion case, Sackett v. EPA, 598 U.S. 651 (2023), landowners wanting to build a house used sand and gravel to fill in a lot next to a ditch, but the Environmental Protection Agency (“EPA”) considered their land protected wetlands under the Clean Water Act, told the landowners that they could not build, directed them to remove the sand and gravel or face $40,000/day fines. Id. at 662. The Supreme Court reversed the underlying opinion siding with the EPA and limited the scope of the “waters of the United States,” allowing the landowners to build their house. Id. at 684. 76 NGA § 1(c), P.L. 83-323, 68 Stat. 36 (1954) (exempting from federal regulation natural gas companies operating entirely within a single state, effectively overturning FPC v. East Ohio Gas Co., 338 U.S. 464 (1950) that had ruled an otherwise local, in-state gas company was subject to federal regulation because it crossed state lines to receive gas).

News

Dorsey & Whitney Advises Beijing Xunzhong on Two Consecutive H Share Placings Raising HK$418.5 Million

International law firm Dorsey & Whitney LLP acted as Hong Kong legal advisors to Beijing Xunzhong Communication Technology Co., Ltd. (“Xunzhong”) as to Hong Kong law in connection with two consecutive placings of new H shares under general mandate (the “First Placing” and the “Second Placing”, respectively, and together, the “Placings”). Xunzhong’s H shares are listed on the Main Board of the Hong Kong Stock Exchange (Stock Code: 2597). Winbull Securities International (Hong Kong) Limited acted as sole overall coordinator and placing agent on both Placings. The First Placing of 11,190,000 new H shares at HK$28.20 each was completed on September 17, 2026, followed by the Second Placing of 3,550,000 new H shares at HK$29.00 each on October 30, 2026. The Placings raised approximately HK$315.56 million and HK$102.95 million in gross proceeds, respectively, or approximately HK$418.51 million in aggregate (approximately HK$415.96 million in aggregate net proceeds). Both Placings were conducted under the same general mandate granted by shareholders at Xunzhong’s 2025 annual general meeting, and each was completed within one week of the signing of its placing agreement. Completing placings in consecutive months is relatively uncommon in the Hong Kong market, and doing so called on the technical depth of Dorsey’s Hong Kong Capital Markets team. Working closely with Xunzhong to understand its business needs and prepare the transaction documents, the team addressed in quick succession the remaining capacity under the general mandate, disclosure of the use of proceeds and the maintenance of Xunzhong’s public float, enabling both Placings to be completed seamlessly. “We are pleased to have advised Xunzhong on both Placings,” said Rachel Han, Partner and Co-Head of Dorsey’s Asia Capital Markets practice. “We appreciate the trust placed in our team and the close collaboration among all parties involved. We look forward to supporting Xunzhong as it continues to execute its growth strategy and pursue future capital markets opportunities.” Xunzhong is principally engaged in cloud-based communications services and enterprise digitalization services in the PRC. As disclosed in its announcements, the net proceeds of the First Placing are allocated to developing Xunzhong’s new computing power operation services business, while those of the Second Placing will be used to integrate model-as-a-service (MaaS) and AI agent capabilities into its existing cloud communications platform-as-a-service (PaaS) platform and software-as-a-service (SaaS) products. Approximately 55% of the net proceeds of the Second Placing will be used for computing power equipment upgrades for the MaaS system, approximately 35% for MaaS, PaaS and SaaS platform upgrades, and approximately 10% for working capital and general corporate purposes. With a single MaaS platform and shared computing power supporting its PaaS and SaaS offerings, Xunzhong intends for its MaaS, PaaS and SaaS capabilities to complement and reinforce one another, and to address customer needs from multiple angles, from embedding AI in customer communications and business workflows to maintaining stable performance at scale and keeping customer data within controlled environments. Partner and Co-Head of Dorsey’s Asia Capital Markets practice Rachel Han and Of Counsel in the Capital Markets and Corporate Compliance group Carlton Ng, along with Associate Kristy Ting, led the Dorsey Hong Kong Capital Markets & Corporate Compliance group in advising Xunzhong on both Placings.

Insights

The Methane Regulatory Pendulum Swings Again: EPA Proposes Sweeping Changes to Federal Standards for the Oil and Natural Gas Sector

Few environmental regulations better illustrate Washington’s regulatory “ping-pong” than EPA’s methane standards for the oil and natural gas sector. Over the last decade, successive administrations have repeatedly expanded, narrowed, rescinded, reinstated, and revised federal methane requirements, leaving industry to navigate a shifting compliance landscape with each change in administration. EPA’s October 27, 2026 proposal to reconsider significant portions of the 2024 oil and natural gas New Source Performance Standards (“NSPS”) and Emission Guidelines (“EG”) under Subparts OOOOb and OOOOc represents the latest swing of the regulatory pendulum. If finalized, the proposal would substantially reduce compliance obligations in several areas, particularly with respect to lower-producing wells, associated gas flaring, equipment and control-device standards, and the Super Emitter Program. EPA estimates that the proposal would result in approximately $45 billion in savings, while preserving what the agency considers appropriate methane emission controls. EPA’s proposal was published in the Federal Register on October 29, 2026. Comments must be received on or before December 16, 2026.  Significantly, EPA is not using this rulemaking to reconsider its general authority to regulate methane emissions from the oil and natural gas sector. Rather, the agency is addressing specific requirements adopted in the 2024 methane rule, while broader questions concerning greenhouse gas regulation are being addressed in separate proceedings. The present proposal therefore focuses on the appropriate design and scope of particular methane regulations, rather than resolving the threshold question of whether methane may be regulated under the Clean Air Act at all. I.    EPA Proposes to Eliminate the Super Emitter Program Among the proposal’s most consequential changes is the complete elimination of the Super Emitter Program. Adopted in 2024, the program created a regulatory framework under which EPA-certified third parties could identify large methane releases using approved remote-sensing technologies. Upon receiving a qualifying notification from EPA, owners and operators were required to investigate the reported emissions event, report findings to EPA, and take corrective action where necessary. EPA now proposes to repeal the Super Emitter Program in its entirety. The agency questions the program’s legal and policy foundations, including the role of third parties in identifying emissions events and triggering regulatory obligations. EPA also questions whether the program is necessary or effective given other requirements applicable to regulated sources and whether its expected emissions reductions justify its costs and implementation challenges. Because the program was incorporated into both the NSPS applicable to new, modified, and reconstructed sources and the EG applicable to existing sources, its removal would affect federal requirements as well as the presumptive requirements that States otherwise would be expected to address in Clean Air Act § 111(d) plans. Importantly, EPA’s proposed repeal does not prevent States from developing and implementing their own Super Emitter Program based on the existing requirements, which several states are already doing.  II.    EPA Reconsiders Associated Gas Requirements Another centerpiece of EPA’s proposal is its reconsideration of the 2024 rule’s restrictions on flaring associated gas from oil wells. The 2024 rule determined that the best system of emission reduction (“BSER”) generally required operators to capture and beneficially use associated gas by routing it to a sales line, using it onsite, or reinjecting it, rather than routinely flaring it. Although EPA provided certain transition periods and compliance flexibilities, particularly for wells facing infrastructure constraints, the rule ultimately established a framework strongly favoring capture and utilization over flaring. Since promulgation, EPA has received significant feedback regarding gathering-system limitations, gas quality issues, and other practical barriers operators face in securing outlets for associated gas. In response, EPA proposes to replace the existing capture-focused approach with a substantially more flexible standard. EPA argues that the 2024 rule relied too heavily on the availability of third-party gathering and processing infrastructure that is often beyond an operator’s control, raising questions regarding achievability and cost-effectiveness. Under the proposal, BSER would be based on routing associated gas to a flare or other control device capable of achieving at least a 95 percent reduction in methane and volatile organic compound (“VOC”) emissions. Operators could continue to capture gas for sale, use it onsite, or reinject it where feasible, but those practices would no longer be required. EPA also proposes that if a portion of associated gas is routed to sales or used for another purpose, the remaining portion must comply with the 95 percent standard. For example, if a company can route 40 percent of its associated gas to a sales line, the company would need to route the other 60 percent to a control device with a 95 percent reduction, or to a flare. EPA is also soliciting comment on less sweeping alternatives that would preserve the basic structure of the 2024 associated-gas program, while providing additional compliance flexibility. In particular, EPA requests comment on whether it should retain the current capture-and-sales framework but expand the circumstances under which temporary flaring is permitted or extend the duration of temporary flaring allowances where operators face infrastructure constraints. EPA appears to recognize that gathering-system availability, processing constraints, and other third-party factors can affect an operator's ability to route gas to sales, even where the operator ultimately intends to comply with the capture requirements. These requests for comment suggest that EPA is considering whether targeted revisions to the existing framework could address implementation concerns without fully abandoning the 2024 rule's underlying preference for gas capture and beneficial use. III.    EPA’s Reconsideration of the “No Identifiable Emissions” Standard EPA's proposal would substantially revise the 2024 rule’s “no identifiable emissions” (“NIE”) requirements applicable to certain covers and closed vent systems (“CVS”) associated with storage tanks. Under the existing rule, covered equipment generally must operate without identifiable emissions, creating a compliance framework that focuses heavily on the absence of observable emissions rather than solely on equipment design or overall control effectiveness. Since promulgation, industry has argued that the standard effectively functions as a zero-emissions requirement that may be difficult to satisfy under all operating conditions, even where equipment and vapor control systems are properly designed, maintained, and operated. Moreover, EPA stated in the preamble to the 2024 rule that any identified emissions would constitute a deviation of the emissions limitation, resulting in a framework under which the observation of emissions could itself establish noncompliance. EPA now proposes to separate the requirements into distinct design and operational components and to fundamentally alter how compliance with the operational NIE requirement is evaluated. EPA proposes to distinguish between deviations of the design requirements and deviations of the operational NIE requirements. Under the proposed approach, failure to repair an identified emission or defect within 24 hours would constitute a deviation of the design requirement, although not necessarily an underlying violation. Separately, operators could demonstrate compliance with the operational NIE requirement by making repairs as soon as practicable, with an initial repair attempt within five days and final repair within 30 days, or by qualifying for the existing delay-of-repair provisions. A deviation of the operational requirement would occur if the applicable repair deadlines are not met and the delay-of-repair provisions do not apply. The proposal also establishes a new framework for addressing recurring or “chronic” emissions events. After the third emissions event or defect from the same cover or CVS within a year, the owner or operator would be required to conduct an investigative analysis within 10 days to determine whether the underlying cause relates to equipment design, operation, maintenance, or prior repair efforts. The results of that investigation would have important compliance implications. If recurring emissions are attributable to a design flaw, EPA would treat the issue as a deviation of the design requirements. If the emissions result from inadequate prior repairs, the deviation would be attributed to the repair requirements. If operations, maintenance, or other site practices are responsible, the deviation would be classified under the operational requirements. EPA would also require implementation of corrective measures identified through the analysis, including design modifications within 90 days and operational or maintenance-related corrective actions within 30 days. Taken together, these revisions would shift the NIE standard away from a framework in which the mere presence of emissions may establish noncompliance and toward one that focuses on whether operators identify emissions, complete timely repairs, investigate recurring problems, and address the root causes of repeated emissions events. IV.    Solicitation of Comment on “Legally and Practicably Enforceable” Standard EPA is also soliciting comment on the definition of “legally and practicably enforceable” (“LPE”), which industry has identified as one of the more problematic existing requirements. Under the 2024 rule, EPA adopted an interpretation of LPE that many commenters argued effectively disqualifies numerous state regulatory programs, permits, and other federally enforceable mechanisms from serving as the basis for remaining below applicable Subpart OOOOb storage tank thresholds. In particular, stakeholders have asserted that the current LPE framework makes it difficult for state air permitting programs and other state regulatory requirements to satisfy EPA's criteria, thereby causing more storage tanks and other emission units to remain subject to Subpart OOOOb requirements than would otherwise be the case. EPA now requests comment on whether its current interpretation of LPE is overly restrictive and whether alternative approaches would better account for the manner in which state permitting and regulatory programs are administered and enforced. The request is significant because a broader interpretation of LPE could allow a wider range of federally enforceable state permits and regulatory requirements to satisfy exemption criteria under OOOOb, potentially reducing the number of storage tanks and other sources subject to direct NSPS regulation. As a result, the LPE issue has implications that extend beyond compliance mechanics and could materially affect the scope of sources regulated under the federal methane program. V.    Revised Requirements for Marginal Wells EPA is also proposing significant revisions to the treatment of lower-producing wells under Subparts OOOOb and OOOOc. The agency notes that marginal wells constitute a substantial portion of the nation’s producing well inventory but account for a relatively small share of overall production. At the same time, EPA discusses studies estimating that marginal wells contribute a disproportionate share of methane emissions from oil and natural gas production. The agency is evaluating whether the 2024 rule appropriately accounts for the operational characteristics, emissions profiles, and compliance costs associated with these wells. To address those concerns, EPA is proposing two alternative approaches to well-site subcategorization. Under the first option, EPA would distinguish between marginal and non-marginal well sites. EPA proposes to define a marginal well as a well that produced no more than 15 barrels of oil equivalent (“BOE”) per day over the prior 12-month period and a marginal well site as a site consisting exclusively of marginal wells with total site-wide production of no more than 15 BOE per day over the same period. EPA is also soliciting comment on whether marginal wells should be further subdivided based on production levels, including a potential distinction between sites producing 6 BOE per day or less and sites producing more than 6 BOE but no more than 15 BOE per day, which could result in additional regulatory flexibility for the lowest-producing wells. Under the second option, EPA would distinguish between conventional and unconventional well sites and tailor requirements based on that classification, including reduced requirements for conventional wells. The agency is seeking comment on which framework better reflects the operational and emissions characteristics of different well sites, as well as whether additional subcategories should be established within the marginal-well population and the extent to which compliance requirements should differ among categories. VI.    LDAR, Pneumatic Controllers, Control Device Monitoring, and Facility Modifications EPA's proposal also includes several targeted revisions to the 2024 rule's leak detection and repair (“LDAR”) requirements. Most notably, EPA proposes additional flexibility in the use of advanced monitoring technologies and seeks to move away from compliance frameworks that rely heavily on a single detection method. The agency is proposing changes intended to facilitate the use of multiple monitoring technologies, including optical gas imaging and other alternative detection approaches, and is seeking comment on whether technology-neutral compliance options can achieve equivalent emissions reductions at lower cost. EPA also proposes revisions for components and equipment that are particularly difficult to monitor using conventional LDAR methods, reflecting concerns that certain 2024 requirements may not be practical or cost-effective in the field. More broadly, EPA questions whether some of the monitoring frequencies adopted in 2024 appropriately balance compliance burdens and emissions-reduction benefits and seeks comment on additional opportunities to tailor LDAR obligations based on emissions risk and source characteristics. EPA also proposes technical revisions to requirements governing control devices and related equipment. These include changes addressing continuous pilot-flame requirements, flame-monitoring data deviations, control-device alerts, visible-emissions test conditions, temporary or backup control devices, temporary process controllers, and control-device categories. The agency’s stated objective is to provide additional compliance flexibility while maintaining appropriate emissions controls. The practical effect will depend on the final requirements and the equipment and circumstances to which each amendment applies. The proposal also addresses pneumatic controllers and equipment leaks at gas processing plants. For certain high-pressure process controllers at transmission compressor stations, EPA proposes a separate regulatory approach based on its reassessment of technical feasibility and cost. The proposal should not be read as establishing a general exemption for pneumatic controllers across the industry. EPA also proposes changes to other equipment-specific requirements, including requirements applicable to pumps, storage vessels, and equipment leaks at gas plants, in response to concerns raised following promulgation of the 2024 rule. Finally, EPA proposes changes to certain requirements governing liquids unloading and other well-site operations, as well as technical corrections and clarifications to the existing regulatory text. These provisions form part of EPA’s broader effort to address implementation concerns and reassess the costs and expected emissions reductions associated with selected requirements in the 2024 rule. Operators should evaluate the specific proposed amendments applicable to their facilities rather than assume that the proposal would provide across-the-board relief from existing monitoring, equipment, or control-device obligations. VII.    Implications for States and Future Congressional or Administrative Action EPA’s proposal would substantially revise several consequential elements of the 2024 methane rule, but it would not eliminate regulation of existing oil and natural gas sources under Clean Air Act § 111(d). As a result, states remain subject to the existing obligation to develop and submit plans for existing sources. If the proposed revisions are finalized, states currently developing those plans may need to reevaluate key program elements, including requirements relating to associated gas, well-site subcategories, the Super Emitter Program, and other compliance obligations. The proposal does not itself extend the January 22, 2027 deadline for state-plan submissions established under the existing framework. The Congressional Review Act (“CRA”) remains a potential source of uncertainty. Depending on when EPA submits a final rule to Congress and the applicable congressional-session timing, a future Congress and President could seek to disapprove the rule under the CRA. A successful disapproval would invalidate the rule and generally restrict the agency from issuing a rule in substantially the same form absent subsequent statutory authorization. The CRA’s lookback provisions can affect the period during which a rule remains subject to congressional review, so the risk cannot be assessed solely by reference to the calendar year in which the rule is finalized. The timing of finalization and submission to Congress, together with the applicable congressional calendar, will determine the extent of that exposure. Finally, unlike the CRA, which can nullify a recently promulgated rule through legislative action, a future administration seeking to unwind this rule would generally need to proceed through a new notice-and-comment rulemaking. EPA would need to revisit the underlying BSER determinations, cost analyses, technical feasibility findings, and enforceability conclusions that support the final rule. Because this proposal is grounded heavily in findings regarding achievability, legal and practical enforceability, and cost-effectiveness, a future administration would need to develop a sufficient record supporting different conclusions before reinstating more stringent requirements. Consequently, the final rule may prove more durable than prior pendulum swings, even if it remains politically controversial.

Event/Resource

Corporate Counsel Symposium 2026 Materials Hub

Materials Symposium Agenda Sessions 8:30 am - 9:30 am CT Session A: The Corporate Compass: Finding True North When Ethical Duties Conflict Philip Kaplan, Senior Legal Counsel, Howden Re Lucia Suljic, Vice President, Corporate Legal, Canon USA Nicole Stanton, Partner & Deputy General Counsel, Dorsey & Whitney LLP This panel addresses ethical obligations of in-house counsel, including balancing obligations and duties that may conflict with each other. How should a responsible in-house lawyer deal with those challenging situations? Rather than stick to an academic discussion, this panel will revolve around a series of practical scenarios that are designed to be realistic and timely, including situations where counsel is asked to represent both the company and an individual, how and when to disclose uncomfortable facts and inconvenient documents, issues involving changing firms and companies, and multijurisdictional practice. The panel will feature discussion from two experienced in-house lawyers and Dorsey’s Deputy General Counsel. Session B: Managing Rapid Regulatory Change in International Trade and Cross-Border Investment Nathan Brower, Executive Vice President, General Counsel, Nature’s Sunshine Greg Ogunsanya, Senior Vice President, General Counsel and Corporate Secretary, H.B. Fuller Kathryn Wood, Senior Vice President & General Counsel, DecoPac, Inc. Dave Townsend and Lawrence Ward, Dorsey & Whitney LLP This program is designed for attorneys advising on cross-border transactions, international trade, regulatory compliance, and corporate governance matters. Panelists will examine recent developments in U.S. trade and investment law and policy, as well as their impact on international collaborations, corporate compliance, and mergers and acquisitions. The discussion will explore how general counsel and in-house legal teams assess and manage evolving trade-related risks within their organizations. Particular focus will be given to developments during the first two years of the second Trump Administration, including changes in tariff policy, tariff refunds, export controls, economic sanctions, and national security reviews of foreign investment. Through a discussion of regulatory trends and practical case studies, attendees will gain a deeper understanding of the legal risks and compliance obligations associated with cross-border business activities, and hear about practical strategies for advising clients and managing compliance obligations in a rapidly changing trade and investment environment. 9:45 am - 10:45 am CT Session A: The Elon Musk Cases: What Tesla and Twitter Can Teach Your Board of Directors Loren Unterseher, Managing Partner, Oxbow Industries, LLC Shulamite White, Chief Legal Officer and Head of People, Motive Technologies Kirsten Schubert, Tom Swigert, and Jonathan Van Horn, Dorsey & Whitney LLP Recent cases involving Elon Musk and his businesses have had significant impact on principles governing board of directors’ fiduciary duties and corporate processes. This panel will examine recent litigation involving Elon Musk, Tesla, and Twitter, and its effects on the law governing the duties of directors and executives, including the executive compensation and director compensation processes, conflicts that may arise when a single executive has control over multiple businesses, and the ramifications of tweets or other public statements by an executive. Session B: All Eyes on DEI: Managing Diversity Efforts Amid Regulatory Scrutiny and Potential Litigation Maggie Dalton, Senior Commercial Attorney, Cargill; Board Co-Chair, Twin Cities Diversity in Practice Laura A. Vannelli, Legal Counsel, Mayo Clinic Susan Lorenc and Jack Sullivan, Dorsey & Whitney LLP The legal and regulatory landscape surrounding diversity, equity, and inclusion (DEI) initiatives has changed dramatically over the past two years. Law firms and legal departments are continuing to grapple with how to recruit, retain, and develop talent from a wide range of personal backgrounds, in a world where previously accepted recruiting and employment practices are facing increased scrutiny and litigation. This program will provide a practical overview of the current legal regime, including recent federal enforcement actions and litigation trends associated with DEI initiatives. Panelists will discuss practical ways in which organizations can pursue and retain legal talent and increase inclusion while minimizing legal, business, and reputational risk. 11:00 am - 12:00 pm CT Session A: Governance in an Age of Increasing Unpredictability James Chosy, Senior Executive Vice President and General Counsel, U.S. Bancorp Todd Hartman, Executive Vice President and Chief Legal and Risk Officer, Best Buy Co., Inc. Alan Rosselot, Associate General Counsel & Assistant Secretary, Delta Air Lines, Inc. Cam Hoang and Robert Rosenbaum, Dorsey & Whitney LLP More than ever, ensuring that boards are well-informed and forward-thinking is critical to a company’s success. Join our panel of corporate governance experts as they share their experiences advising boards through crisis and unpredictable events; capitalizing on, but also checking, disruptive technologies; and positioning the company to succeed in an environment of shifting government priorities. Session B: A Day in the Life of a Trademark, Copyright & Advertising Attorney: A Hypothetical Case Study Alexander Kim, Vice President and General Counsel, Binks Nate Whitaker, Chief Legal Officer and General Counsel, Crumbl Cathy Dahl and Tiffany Shimada, Dorsey & Whitney LLP What issues are companies facing daily while developing rights in intellectual property, protecting those rights, and staying in compliance with myriad potential issues related to advertising, social media, relationships with influencers, and environmental or governmental claims? This panel will feature two in-house counsel who are navigating these issues, utilizing a hypothetical case study, with the support of two Dorsey attorneys helping to develop a roadmap for meeting business objectives and minimizing the risk of claims. 12:00 pm - 1:15 pm CT Keynote Address Dr. Rebecca Heiss, Stress Physiologist Dr. Rebecca Heiss is a stress physiologist, author, and sought-after speaker who helps audiences transform fear and stress into fuel for greater performance and resilience. Her research has been recognized as “transformative” by the National Science Foundation, and she is the author of two books, Springboard and Instinct. Through her Fear(less) message, Rebecca inspires audiences with practical, science-based strategies to train our brains to work for us – not against us – and navigate change and uncertainty with greater confidence.