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Data Privacy

Privacy Policy Statement

1. INTRODUCTION
This Privacy Policy describes how Dorsey & Whitney LLP ("Dorsey", "we," "us" or "our") collect, use, and share your personal data when you use the Dorsey website (www.Dorsey.com) and other online services ("Services" or "Digital Services").

The purpose of this Policy is to inform you about our privacy practices and to ensure that you understand the purposes for which we collect and process your personal data. The following is a brief summary of the manner and purposes for which we process your personal data.

2. APPLICATION
This Policy relates to your personal data, i.e. data about you, an individual, from which you can be identified.

This Policy does not apply to any data insofar as it is held, processed, disclosed or published in a form which cannot be linked to a living individual (such as anonymised or aggregated data which cannot directly or indirectly be used to identify you or to obtain information about you) ("Anonymised and Aggregated Data"). We may generate or extract Anonymised and Aggregated Data out of any databases containing your personal data and we may make use of any such Anonymised and Aggregated Data for our purposes as we see fit.

3. CHANGES TO THE PRIVACY POLICY 
Please review the Privacy Policy each time you use the Service. We may update this Policy from time to time, and the updated version of this Policy will be effective upon posting on the Dorsey Services. Please check this page to review the most up-to-date version of this Policy. 

4. RESPONSIBILITY FOR DATA CONTROL AND PROCESSING
Dorsey is the entity which is responsible for the control and processing of personal data that we collect from you when you use the Services.  If you have any questions or concerns about Dorsey’s use of your personal data, please contact our Data Privacy Team at dataprivacy@dorsey.com.

5. COUNTRY OF PROCESSING
We operate the Services from the United States of America (USA) and our data collection and processing activities take place predominantly in the USA. Accordingly, data collected from users when using our Services is collected in the USA. We store and otherwise process data (including personal data) through third party cloud service providers and other IT service providers which may be located or which may operate in other countries.

6. HOW WE COLLECT AND USE YOUR PERSONAL DATA 

(a) Information That You Provide Directly or Authorize Someone Else to Give Us. Dorsey collects personal information about you, such as your contact details, when voluntarily submitted by you. For example, if you choose to complete and submit one of the forms located on our Web site to register for conferences or register to receive information. We may ask you to provide certain information including, but not limited to your name, postal address, email address, telephone number, company name, password, third-party social networking service username and password, birthday, and other data. We retain messages you send through the Service, and any other data you provide to us. We use this data for our business purposes related to our practice of law, and as further detailed below.

(b) Information that we collect automatically. If you browse through the Dorsey.com website or download information, our servers will automatically collect certain information from you. This information includes the: (a) name of the domain and host from which you access the Internet; (b) browser software you use and your operating system; and (c) Internet address of the website and IP address from which you linked directly to this website. We will use information that we automatically collect to manage and improve our website to make it as useful as possible for visitors like you. We do not seek to match data collected automatically with data that you give us voluntarily as referred to above and we do not seek to track specific users or profile their activities on the website.

(c) Analytics information. We collect, measure and analyze traffic and usage trends on the Services, and we use third-party analytics tools to help us. This allows us to understand, among other things, how the Services are being used and ways to improve the Services. Such third-party analytics tools use cookies and persistent device identifiers to collect and store information including, but not limited to time of visit, pages visited, time spent on each page, IP address, unique device ID, advertising tags and type of operating system used.

(d) Cookies. When you use the Service, we sometimes send one or more cookies (small text files containing a string of alphanumeric characters) to your computer that uniquely identify your browser and enhance your navigation on the Service. A cookie may also convey information to us about how you use the Service (e.g., the pages you view, the links you click and other actions you take), and allow us or our third-party analytics tools we use to track your usage of the Services. There are at least two different types of cookies: persistent and session cookies. A persistent cookie remains on your hard drive after you close your browser. Persistent cookies may be used by your browser on subsequent use of the Service. Persistent cookies can be removed by following your web browser's directions for removal of cookies. A session cookie is temporary and disappears after you close your browser. You can reset your web browser to refuse all cookies or to notify you when a cookie is being sent. However, some features of the Service may not function properly if cookies are disabled.

(e) Log File. Log file information is automatically reported by your browser each time you access a web page. When you access or use the Dorsey.com website, our servers may automatically record certain log file information, including but not limited to your web request, Internet Protocol address, browser type, referring/exit pages and URLs, number of clicks and how you interact with links on the Service, domain names, landing pages, and pages viewed.

(f) Clear GIFs/Web Beacons. Clear GIFs (also known as web beacons) allow for the tracking of a user's response to an email or usage of a website in a manner that does not reveal personally identifiable information. We may use clear GIFs or similar technologies to assess responses to emails and usage of the Service. For example, we may use clear GIFs to track when emails are opened and which links are clicked by recipients. You can disable certain abilities of clear GIFs to capture information by blocking cookies.

(g) Device Identifiers. When you access or use the Service using a mobile device, we may access, collect, monitor and/or remotely store one or more "device identifiers," such as a universally unique identifier. Device identifiers are small data files or similar data structures stored on or associated with your device that uniquely identify your device. A device identifier may consist of data stored in connection with the device hardware, operating system or other software, or data sent to the device by us. A device identifier may convey information to us about how you browse and use the Service. A device identifier may remain persistently on your device to enhance your navigation on the Service. Some features of the Service may not function properly if use or availability of device identifiers is impaired or disabled.

(h) Location Data. When you access or use the Service using a mobile device, we may access, collect, monitor and/or remotely store "location data," which may include GPS coordinates (e.g. latitude and/or longitude) or similar information regarding the location of your device. Location data may convey to us information about how you browse and use the Service. Some features of the Service, particularly location-based services, may not function properly if use or availability of location data is impaired or disabled.

(i) Professional Communications. Insofar as permitted under applicable law, we may use the information we collect or receive to communicate directly with you in relation to the Services or related services we offer. Subject to your consent to receiving such communications (where legally required), we may use the information to communicate with you in relation to other services that we offer.  For example, we may use the information to send you emails containing newsletters, updates on developments in the law or other information that may interest you.

(j) Use of Certain Service-Type information. We may use information from cookies, log files, device identifiers, location data, clear GIFs and other tools to: (i) remember information so that you will not have to re-enter it during your visit or the next time you use the Service; (ii) provide custom, personalized content or information to you or others; (iii) monitor the effectiveness of the Service; (iv) monitor aggregate metrics, such as total number of visitors, traffic and demographic patterns; (v) diagnose or fix technology problems; (vi) provide advertising to your browser or device; and (vii) conduct research or surveys.

(k) Use of information with Your Consent. We may use your information for any other purpose for which you provide consent.

7. AUTOMATED DECISION-MAKING
We do not envisage that any decisions will be taken about you based solely on automated decision-making that will have a significant impact on you. However, we will update this policy if this position changes.

8. THE PURPOSES FOR WHICH WE USE YOUR PERSONAL DATA
The purposes for which we collect and store your personal data are the following:

(a) To enable us to operate the Services and to enable you to use them efficiently;

(b) Insofar as permitted under applicable law, to communicate with you in relation to our services and legal practice;

(c) To personalize, test, monitor, improve and upgrade the Services;

(d) To assist law enforcement and respond to subpoenas;

(e) To meet our legal obligations and the regulatory requirements to which we are subject, for loss prevention purposes and to protect and enforce our rights and meet our obligations to third parties; and

(f) For our internal business purposes, such as compiling and analyzing usage information for general operational, statistical and business purposes.

9. YOUR RESPONSIBILITIES
It is important that the personal data we hold about you is accurate and current. If you provided us with any details of personal data, please keep us informed if such details change.

10. THE LEGAL BASIS FOR PROCESSING YOUR DATA
The processing of your information is lawful on the basis of the following:

(a) Where relevant, your express consent (if your consent is requested or if you provide personal data to us voluntarily or in response to our request);

(b) Compliance with legal obligations to which we are subject, including to comply with legal process; or

(c) Our legitimate interests in (among other things) providing and administering the Services, conducting commercial research, improving and maintaining the Services, personalising and tailoring content made available to you through the Services,  protecting the security or integrity of our databases, protecting our business or reputation, taking precautions against legal liability, dealing with our assets in the event of a business change, protecting and defending our rights or property, required institutional risk control, or for resolving disputes, investigating and attending to inquiries or complaints with respect to your use of the Service.

11. HOW WE MAY SHARE YOUR INFORMATION
(a) Business Associates and Service Providers. We may share information about you with third-party business associates and service providers that perform services on our behalf in connection with the Digital Services, such as independent contractors who host and maintain our website and email services.  Where your information is shared with such third parties, we ensure that the third party service provider will deal with your information only on our behalf and on our written instructions and solely for the benefit of our business (and not for its own benefit).

(b) Business Change. If we become involved in a merger, consolidation, acquisition, sale of assets, joint venture, securities offering, bankruptcy, reorganization, liquidation, dissolution or other transaction, or if the ownership of all or substantially all of our business otherwise changes, we may share or transfer your information to successor party or parties in connection with such transaction or change in ownership or legal structure.

(c) Necessary Disclosure. Regardless of the choices you make regarding your information and to the extent permitted or required by applicable law, we may disclose information about you to third parties to: (i) enforce or apply the Terms of Use or any applicable end user license agreement; (ii) comply with laws, subpoenas, warrants, court orders, legal processes or requests of government or law enforcement officials; (iii) protect our rights, reputation, safety or property, or that of our users or others; (iv) protect against legal liability; (v) establish or exercise our rights to defend against legal claims; or (vi) investigate, prevent or take action regarding known or suspected illegal activities; fraud; our rights, reputation, safety or property, or those of our users or others; violation of the Terms of Use, our policies or agreements; or as otherwise required by law.

(d) Sharing information. We may share certain service-type information, including information obtained through tools such as cookies, log files, device identifiers, location data and clear GIFs (such as anonymous usage data, referring/exit pages and URLs, platform types, number of clicks, etc.) with our third-party business associates who may use such information for the purposes described in the section titled "How We Collect and Use information."

(e) Aggregated data. As mentioned above, we may also aggregate or otherwise strip information of all personally identifying characteristics and may share that aggregated, anonymized data with third parties or publish it.  This data does not personally identify you and helps us to measure the success of the Services and its features and to improve your experience.  We reserve the right to make use of any such aggregated data as we see fit.

12. HOW WE PROTECT YOUR INFORMATION
We take certain physical, technological and administrative measures to protect the information you provide through the Services against loss, theft, and unauthorized access, use, disclosure or modification. However, we cannot ensure or warrant the security of any information you transmit to us or guarantee that information on the Services may not be accessed, disclosed, altered or destroyed. Messages and emails sent to or from the Services may not be secure. You should use caution whenever submitting information online and take special care in deciding what information you send to us via email.
We cannot guarantee that transmissions of your personal data will be fully secure and that third parties will never be able to defeat our security measures or the security measures of our partners.  WE ASSUME NO LIABILITY FOR DISCLOSURE OF YOUR INFORMATION DUE TO TRANSMISSION ERRORS, THIRD-PARTY ACCESS OR CAUSES BEYOND OUR CONTROL.

13. YOUR CHOICES ABOUT YOUR INFORMATION

(a) Controlling Your Settings. You can limit your browser or mobile device from providing certain information by adjusting the settings in the browser, operating system or device. Please consult the documentation for the applicable browser, operating system or device for the controls available to you. You can also stop receiving promotional emails from us by following the unsubscribe instructions in those emails. Note that unsubscribe is not available for certain emails concerning your relationship or dealings with us.

(b) Do Not Track. At this time, we do not recognize "do not track" signals sent from web browsers.  In some cases, your browser may offer a “Do Not Track” option, which allows you to signal to operators of websites, mobile applications, and services (including behavioral advertising services) that you do not wish such operators to track certain of your online activities over time and/or across different websites and mobile applications and services. Disabling tracking mechanisms may disable certain features of the Service. To disable tracking, please consult the documentation for your browser, operating system or mobile device. For some devices, it may not be possible to disable tracking mechanisms. You may also disable tracking by certain third-party services by opting out:

14. HOW LONG WE KEEP YOUR INFORMATION 
We will only retain your personal data for as long as necessary to fulfil the purposes we collected it for, including for the purposes of satisfying any legal, accounting, or reporting requirements.

To determine the appropriate retention period for personal data, we consider the amount, nature, and sensitivity of the personal data, the potential risk of harm from unauthorised use or disclosure of your personal data, the purposes for which we process your personal data and whether we can achieve those purposes through other means, and the applicable legal requirements.

15. CHILDREN'S PRIVACY
The Service is not directed to children and is intended for use by adults only. We do not knowingly collect information from individuals under 16 years of age. If you are under the age of 16, please do not submit any information through the Service.

16. THIRD-PARTY SITES AND SERVICES
The Service may reference or provide links to other websites, applications, or resources. If you access any website, application, or resources provided by a third party, our Privacy Policy will not apply. Your interactions with such websites, applications, and resources are subject to the privacy policies of the third parties that operate them. Please review those policies carefully to understand how those parties will treat your information.

17. EU PRIVACY RIGHTS
Users based in the European Economic Area have the following legal rights in respect of their personal data:

(a) The right to require Dorsey to confirm whether or not their information is being processed, the purpose of any such processing, the recipients of any information that has been disclosed, the period for which their information is to be stored and whether any automated decision-making processes are used in relation to their information;

(b) The right to require Dorsey to rectify inaccurate information without undue delay;

(c) Where Dorsey has relied on the ‘consent’ basis for processing that information (see paragraph 9(a) above), the right to withdraw their consent at any time. This right to withdraw consent does not affect the lawfulness of processing based on consent before its withdrawal;

(d) The right to request the erasure of their information. In general, a data subject may be entitled to  require the erasure of their personal data records where:

  • (i) the information is no longer necessary in relation to the purpose for which it was collected, such as where a user chooses to terminate his or her use of the Service; 
  • (ii) where the processing of the information is based on the user’s consent (and the other circumstances described in the ‘Legal Basis for Processing Your information’ and ‘How We May Share Your information’ sections above no longer apply), if the user withdraws his or her consent; or 
  • (iii) where the personal data is processed by Dorsey solely on the basis of our ‘legitimate interest’ referred to in paragraph 10(d) (and the other legal basis set out in paragraph 10 do not apply), if the user objects to the processing of his or her personal data and there are no overriding legitimate grounds for the processing (such as, for example, where the processing of the data is required to meet statutory obligations or for the defence of legal claims). 

Where Dorsey has disclosed the information of a user in the European Economic Area to a third party and the user requests the erasure or rectification of the data, Dorsey will take all reasonable steps to inform the third party of such request;

(e) The right to require Dorsey to restrict its processing of a user’s personal data in certain circumstances, such as where the accuracy of that data is disputed or an objection has been raised. In such circumstances, Dorsey will only process that information with the express consent of the user, or for the establishment, exercise or defence of legal claims or for the protection of the rights of another natural or legal person or for reasons of important public interest;

(f) Where data is processed on the basis of data subject consent or for in fulfilment of a contractual obligation, the user’s right to receive his or her personal data from Dorsey in a structured, commonly used and machine-readable format;

(g) The right to object to the processing of personal data where:

  • (i) Dorsey relies solely on the ‘legitimate interest’ basis for processing that data, in which case we will be legally required to stop processing the user’s information unless we have compelling legitimate grounds for the processing which override the user’s privacy rights and interests; or 
  • (ii) the information is used for direct marketing purposes, in which case we will immediately stop processing the user’s information for such purposes;

(h) Users have the right to lodge a complaint with the data protection supervisory authority of the EU member state where the user resides.

18. CALIFORNIA PRIVACY RIGHTS
Under California Civil Code Section 1798.83, if you are a California resident and your business relationship with us is primarily for personal, family or household purposes, you may request certain data regarding our disclosure, if any, of information to third parties for the third parties' direct marketing purposes. To make such a request please fill out the request form. You may make such a request up to once per calendar year. If applicable, we will provide to you via email a list of the categories of information disclosed to third parties for their direct marketing purposes during the immediately-preceding calendar year, along with the third parties' names and addresses. Please note that not all personal data sharing is covered by Section 1798.83's requirements.

19. QUESTIONS/CONTACTING US
If you have any questions regarding this Privacy Policy or if you wish to make a request in accordance with paragraphs 17(d) and/or 18 above, you may email the Data Privacy Team at dataprivacy@dorsey.com or call +1 (612) 340-2600 or contact us by mail at the address below.  Please note that email from unrecognized addresses may be rejected by our security measures and therefore not be received.  If you do not receive an acknowledgment concerning a data privacy request sent by email within 3 business days, please contact us by phone or letter.

Dorsey and Whitney, LLP
Attn: Data Privacy Team
50 South Sixth Street
Suite 1500
Minneapolis, MN 55402-1498
United States of America

Firm Highlights

Insights

The Supreme Court Update - October 8, 2026

On September 29, 2026, the Supreme Court granted certiorari in one case: Department of Homeland Security v. D.V.D., No. 26-426: This case concerns the Trump Administration’s “third-country removal” procedures, where immigrants are deported to countries not listed in the removal orders. In granting certiorari, the Court granted the Government’s application to stay a lower court decision halting the practice, which will allow third-country removals to continue pending resolution of the case. The issues presented are: (1) Whether the district court had jurisdiction over respondents’ claims; (2) whether the district court had authority to enter class-wide declaratory relief and APA vacatur under 8 U.S.C. § 1252(f)(1); (3) whether the Government’s guidance on third-country removals is unlawful under 8 U.S.C. § 1231(b), the due process clause, or FARRA/CAT and its implementing regulations; and (4) such other questions that the Government determines are appropriate for the proper disposition of the case. On October 1, 2026, the Court granted certiorari in three additional cases: Rhoney v. Barbosa da Cunha, No. 26-104: Immigration officials detained Ricardo Aparecido Barbosa da Cunha—a Brazilian citizen who had lived in the United States for approximately twenty years after entering without inspection—and denied him a bond hearing under 8 U.S.C. § 1225(b)(2)(A). The Second Circuit held that his detention was instead governed by § 1226(a), which permits release on bond, because § 1225(b)(2)(A)’s mandatory-detention requirement applies only to noncitizens apprehended while entering the country or shortly thereafter. The question presented is: Whether 8 U.S.C. § 1225(b)(2)(A) mandates the detention pending removal proceedings of aliens who, like Barbosa da Cunha, are present in the United States without having been admitted. Missionaries of St. John the Baptist, Inc. v. Frederic, No. 25-113: A Catholic religious organization sought to build a shrine to the Virgin Mary on land the organization owned adjacent to its church in Park Hills, Kentucky. Local zoning restrictions prohibited the proposed construction. The question presented is: Whether a land-use regulation that prohibits a religious institution from building a religious structure on its own property constitutes a “substantial burden” on religious exercise under the Substantial Burden Provision of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a). Marschner v. Marschner, No. 25-1349: Under the Uniformed Services Former Spouses’ Protection Act (“USFSPA”), a veteran’s longevity-based retirement pay can be divided in a divorce, but retirement pay based on disability and retirement pay that was waived to receive disability pay are indivisible. The question presented is: Does the USFSPA require state courts to refuse enforcement of indemnification provisions in a divorce settlement agreement?

Insights

SEC Proposes Expansion of Investment Adviser Performance-Based Compensation Rule

On September 30, 2026, the Securities and Exchange Commission (the “SEC”) proposed amendments to Rule 205-3 under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), which provides an exemption from the general prohibition under Section 205(a)(1) of the Advisers Act on registered investment advisers receiving performance-based compensation (the “Proposal”) so long as performance-based compensation is limited to “qualified clients”.1 Most notably for private fund sponsors, the Proposal would expand the definition of “qualified client” to include any investors that satisfy the “accredited investor” definition under Regulation D. The Proposal may also have implications for private fund managers that rely on exemptions from investment adviser registration under state law because certain state-level investment adviser registration exemptions incorporate or otherwise reference the federal qualified client definition. Expansion of the Qualified Client Definition Under the current Rule 205-3, an investor generally may qualify as a qualified client if, among other alternatives, the investor has at least $1.4 million under management with the adviser or has a net worth exceeding $2.7 million. These thresholds are higher than the financial thresholds applicable to many accredited investors under Regulation D. As a result, an investor may currently qualify as an accredited investor for purposes of investing in a private offering without qualifying as a qualified client for purposes of paying performance-based compensation. The Proposal would expand the qualified client definition to include any natural person or legal entity investor that satisfies the accredited investor definition under Regulation D. The Proposal would also remove the assets under management and net worth thresholds under the current Rule 205-3 qualified client test. For private funds relying on Section 3(c)(1) of the Investment Company Act of 1940, this change could reduce the need to apply a separate qualified client standard to investors that already qualify as accredited investors. Dorsey Observations and Next Steps If adopted as proposed, the expanded qualified client definition could be particularly significant for private fund managers. Most private fund offerings are already limited to accredited investors under Regulation D. However, the Proposal could expand the pool of prospective investors available to emerging private fund managers while reducing the regulatory burden associated with complying with Rule 205-3. The Proposal could also benefit advisers operating below the SEC registration threshold that rely on a state private fund adviser exemption. A number of states have adopted exemptions modeled on the North American Securities Administrators Association (“NASAA”) private fund adviser exemption, which may condition relief for advisers to certain funds relying on Section 3(c)(1) on each beneficial owner satisfying the federal qualified client definition. However, state requirements vary, and any effect of the Proposal would depend on the text of the applicable state exemption and how it incorporates Rule 205-3. Many emerging private fund managers may have a larger network of accredited investor relationships than qualified client relationships during the early stages of their investment advisory business. Currently, under Rule 205-3, private fund managers may receive performance-based compensation from investors who do not satisfy the qualified client definition if those investors were admitted to their private funds prior to registration with the SEC. Following registration with the SEC, however, managers may continue to permit investors that are not qualified clients to invest in future private funds but may not receive performance-based compensation from those investors with respect to such investments. In addition, because the net worth and assets under management thresholds for qualified client status are adjusted for inflation every five years, the pool of qualified client investors may diminish over time as previously eligible investors no longer satisfy the applicable thresholds. The Proposal could provide the dual benefit of greater flexibility for private fund managers to establish and maintain relationships with accredited investors as their businesses scale and they become registered with the SEC, and greater flexibility for certain accredited investors to participate in investment strategies that historically have been restricted to much larger institutional investors. Unless and until the Proposal is adopted, investment advisers should continue to comply with the existing qualified client requirements. If the Proposal is adopted, private fund sponsors should consider whether corresponding changes are appropriate for their subscription documents, investor questionnaires, and other offering materials. Advisers that are state-registered or rely on a state-level exemption should also consult the laws and regulations of each relevant jurisdiction before changing investor eligibility standards or performance-based compensation practices, because adoption of the federal amendments may not automatically modify state requirements. Comments on the Proposal will be due 60 days after publication in the Federal Register. 1 Investment Adviser Performance-Based Compensation Modernization, Investment Advisers Act Release No. IA-7022 (Sept. 30, 2026), available at https://www.sec.gov/rules-regulations/2026/09/s7-2026-28#33-11443proposed.

News

Dorsey & Whitney Partner Michael W. Droke Releases Fourth Edition of Cooperative Business Law: A Practical Guide with Enhanced Insights for Today's Cooperatives

Industry-leading reference updated with practical tips and current cooperative law developments Dorsey & Whitney LLP is pleased to announce the publication of the fourth edition of Cooperative Business Law: A Practical Guide to the Special Laws Governing Cooperatives, authored by Dorsey Partner Michael W. Droke. Drawing on more than 20 years of direct experience as outside general counsel to major agricultural and food industry cooperatives, Droke has updated this essential resource with new practical tips, real-world guidance, and insights into emerging cooperative law issues that matter to cooperative leaders and their advisors. Since its initial publication, this comprehensive guide has become the standard reference for attorneys, executives, and cooperative governance professionals navigating the unique legal landscape of cooperative organizations. The new fourth edition builds on that foundation by incorporating practical lessons learned from recent cooperative transactions, governance challenges, and regulatory developments. "I am grateful for Dorsey's continued support of this work and for the opportunity to contribute to the cooperative community," said Droke. "Over the past 20 years, I've had the privilege of serving as outside general counsel to some of the nation's most successful cooperatives. The practical insights gained from that work inform every page of this edition. I wanted to create a resource that helps cooperative leaders and their legal advisors tackle real business challenges with confidence." The Fourth Edition features: Practical tips and real-world case examples drawn from decades of cooperative practice Guidance on cooperative formation, governance, member rights, and voting structures Current analysis of antitrust and Capper-Volstead Act issues affecting modern cooperatives Insights into financing, mergers and acquisitions, and corporate restructuring for cooperatives Member relations strategies and dispute resolution approaches specific to cooperative structures About Michael W. Droke Michael W. Droke is a Partner at Dorsey & Whitney LLP and Firmwide Co-Chair of the Food, Beverage & Agriculture practice group. He serves as outside primary counsel for numerous cooperatives, providing comprehensive legal guidance on all aspects of cooperative operations, governance, member relations, corporate restructuring, financing, and mergers and acquisitions. His representative clients include National Co+op Grocers, Darigold, the Northwest Dairy Association, Organic Family Farms Cooperative, Chelan Fruit Cooperative, and Sacramento Natural Foods Co-op. A former business executive who brings a dual perspective to his practice, Droke combines legal expertise with practical business acumen. He has served as an outside board member and general counsel for major cooperatives and maintains deep involvement in the cooperative community through regular presentations and participation in industry organizations including NCBA CLUSA, the National Society of Accountants for Cooperatives, and the National Council of Farmer Cooperatives. About Dorsey & Whitney's Cooperative Law Practice Dorsey & Whitney's Cooperative Law practice group is a recognized national leader in cooperative law with more than 45 years of experience serving agricultural cooperatives, rural electric cooperatives, purchasing cooperatives, consumer cooperatives, worker cooperatives, and cooperative start-ups across the nation. The practice includes 20 dedicated lawyers who advise cooperatives and other agriculture-related organizations on formation and organization, voting rights and governance, antitrust and Capper-Volstead Act compliance, tax issues, project development and finance, mergers and acquisitions, real estate, labor and employment, environmental compliance, and all other aspects of cooperative business operations. Cooperative Business Law: A Practical Guide to the Special Laws Governing Cooperatives, Fourth Edition, is available from major book retailers and online booksellers.

Insights

EPA Limits Title V Re-Litigation of NSR Permits

Overview On September 25, 2026, the U.S. Environmental Protection Agency (“EPA”) published a final rule that significantly limits the ability of third parties to use the Clean Air Act (“CAA”) Title V permitting process to revisit New Source Review (“NSR”) permitting decisions years after those decisions were made. The rule establishes that NSR permitting determinations generally must be challenged during the original permitting proceeding, thereby providing regulated sources with greater permitting certainty and finality for major capital projects. Published in the Federal Register titled Clarifying the Scope of “Applicable Requirements” Under State Operating Permit Programs and the Federal Operating Permit Program (Docket ID No. EPA-HQ-OAR-2023-0401), the rule amends 40 C.F.R. Parts 70 and 71 to codify EPA’s interpretation regarding when requirements established under other CAA programs may be reviewed, modified, or implemented through the Title V operating permit program. The rule becomes effective 30 days after publication. The rule addresses two principal issues: (1) the relationship between NSR preconstruction permitting and Title V operating permits, and (2) the treatment of the General Duty Clause under CAA section 112(r)(1). Most significantly, the rule provides greater certainty for sources navigating the NSR permitting process. EPA’s amendments are intended to ensure that NSR permitting decisions made through an approved public process are generally not revisited later through Title V permit proceedings. The rule responds to a circuit split between the U.S. Courts of Appeals for the Fifth and Tenth Circuits. In Environmental Integrity Project v. EPA, 969 F.3d 529 (5th Cir. 2020), the Fifth Circuit upheld EPA’s interpretation, concluding that it was consistent with the text, structure, and purpose of Title V. In contrast, the Tenth Circuit reached the opposite conclusion in Sierra Club v. EPA, 964 F.3d 882 (10th Cir. 2020), finding that the then-existing regulatory definition of “applicable requirement” did not support EPA’s position. By amending the regulatory language on which the Tenth Circuit relied and codifying the interpretation approved by the Fifth Circuit, EPA has established a nationwide framework governing the interaction between NSR and Title V. NSR and Title V: EPA Establishes a Uniform Nationwide Framework At the core of the rule is EPA’s effort to define the respective roles of NSR and Title V. The rule codifies the approach EPA has applied since 2017: once a source obtains an NSR permit under an EPA-approved permitting program, and that permit was issued following public notice with an opportunity for comment and judicial review, the permit establishes the NSR-related “applicable requirements” of the State Implementation Plan (“SIP”) or Federal Implementation Plan (“FIP”) for Title V purposes. Under this framework, Title V is not a vehicle for re-examining underlying NSR permitting decisions. EPA does not intend to use the Title V process to revisit applicability determinations, emissions calculations, control technology determinations, permit conditions, or other issues resolved through the NSR permitting process. This principle applies regardless of the stage of the Title V proceeding; whether the NSR permit was issued pursuant to a SIP or FIP; the type of NSR issue involved; or whether the NSR permit is incorporated into Title V sequentially or concurrently. Limited Exceptions EPA recognizes several circumstances in which NSR issues may still be reviewed through the Title V program: No NSR permit was issued at all; The permit was issued without public notice and an opportunity for comment and judicial review; or The issue involves substantive overlap between Title V and NSR requirements, such as the adequacy of monitoring provisions. As a result, the rule does not insulate unpermitted projects or foreclose review of matters that independently arise under Title V. Key Regulatory Amendments The rule revises the definition of “applicable requirement” in 40 C.F.R. §§ 70.2 and 71.2. Paragraph (1): Where an NSR permit is issued with public notice and an opportunity for comment and judicial review, the permit establishes and defines the applicable SIP or FIP requirements for Title V purposes. Paragraph (2): All NSR permit terms, including terms contained in minor NSR permits, constitute applicable requirements that must be incorporated into Title V permits. Paragraph (4): CAA section 112(r)(1) (the General Duty Clause) is expressly excluded from the definition of “applicable requirement,” while section 112(r)(7) Risk Management Program requirements remain included. EPA also amended 40 C.F.R. §§ 70.8 and 70.12 to clarify that alleged defects in requirements established outside the Title V process generally do not provide a basis for EPA objection to a Title V permit or for a Title V citizen petition. General Duty Clause Exclusion The rule also codifies EPA’s longstanding position that the General Duty Clause in CAA section 112(r)(1) is not an “applicable requirement” for Title V purposes. EPA points to several considerations supporting that conclusion, including the distinction between the General Duty Clause and Title V permit terms, the provision’s origins in the Occupational Safety and Health Act’s general duty clause, and the different enforcement structures applicable to the General Duty Clause and Title V permit requirements. Importantly, excluding section 112(r)(1) from the definition of “applicable requirement” does not eliminate EPA’s authority to enforce the General Duty Clause independently of the Title V program. The final rule instead clarifies that the General Duty Clause need not—and should not—be incorporated into Title V permits as an applicable requirement. Practical Implications for Regulated Sources Greater Finality for NSR Permits  For projects requiring PSD, nonattainment NSR, or minor NSR permits, the permitting process becomes the primary forum for resolving disputes regarding applicability determinations, emissions calculations, control technology requirements, offsets, and permit conditions. Once an NSR permit is issued through a qualifying public process, regulated sources should face substantially reduced risk that those same issues will be challenged years later through Title V permit proceedings. Reduced Risk of Collateral Permit Challenges Stakeholders have sometimes sought to use Title V permit issuance, renewal, revision, or citizen-petition proceedings to challenge underlying NSR determinations. The final rule makes clear that Title V is not the appropriate vehicle for challenging whether an applicable requirement was correctly established in the first instance. This should reduce the risk of permit delays and uncertainty associated with collateral challenges to previously issued NSR permits. The rule does not, however, eliminate all Title V challenges relating to an NSR permit. Challenges concerning the Title V permit itself—including whether it appropriately incorporates applicable requirements or contains adequate compliance provisions—remain possible. Increased Importance of the Initial NSR Proceeding Because Title V generally will not provide a second opportunity to challenge the substantive validity of an NSR determination, the administrative record developed during the NSR process becomes increasingly important. Permit applicants should ensure that applicability analyses, emissions calculations, control technology evaluations, modeling demonstrations, and supporting technical documentation are thoroughly developed during the original permitting proceeding. For significant projects, applicants may therefore have an additional incentive to identify and resolve potential permitting issues before the NSR permit is issued rather than assuming that unresolved issues can be addressed during a subsequent Title V proceeding. Potential Incentive for Broader Public Participation EPA also notes that permitting authorities may choose to provide public notice and an opportunity for comment for a broader range of NSR permits because permits issued through a qualifying public process receive the benefit of the finality framework established by the rule. Some permitting authorities may conclude that greater public participation at the NSR stage is preferable to uncertainty during subsequent Title V proceedings. Conclusion The final rule is principally a permitting-certainty measure. For sources that obtain NSR permits through a public process, EPA has substantially limited the ability of third parties to revisit underlying NSR determinations through the Title V program. As a result, regulated entities should benefit from greater finality regarding key permitting decisions, reduced risk of collateral permit challenges, and increased certainty when planning and implementing capital projects.

Insights

Energy Law: Month in Review - September 2026

Welcome to Dorsey’s Energy Law: Month in Review. We provide this update to our clients to identify significant developments in the previous month. Please reach out to any of the authors, listed above, to discuss these issues. Regulatory Developments Massachusetts Ratchets Up State and Local Regulation of AI Data Centers In early September, Governor Maura Healey of Massachusetts signed an executive order requiring that artificial intelligence data centers secure the approval of local communities as a precondition to proceeding with a given project. According to the terms of the order, data center developers will need to secure a “community benefits agreement” as a precondition to receiving permits from numerous state agencies, including the Department of Environmental Protection, the Energy Facilities Siting Board, and the Massachusetts Environmental Policy Act Office. Beyond requiring community benefits agreements, the order also mandates that developers mitigate utility costs to consumers, prohibits the use of nondisclosure agreements, and requires various state agencies to develop measures to limit data center impacts on the environment. North Carolina Regulators Decline Approval of Duke Energy Gas Turbine On September 18, 2026, North Carolina Utilities Commission (NCUC) denied Duke Energy’s application for a certificate of public convenience and necessity required to construct a gas-fueled combustion turbine at its Smith Energy Complex in North Carolina. The NCUC objected strongly to the $584 million price tag and noted that Duke appeared to be constructing the facility “based on anticipated data center customer additions.” The NCUC rejected that anticipated growth as “insufficiently reliable for the Commission to act at this point.” In rejecting Duke’s application, the NCUC also noted that Duke had signed the White House Ratepayer Protection Pledge, in which it represented that it would not shift data center costs to consumers. The NCUC observed that the record did not demonstrate how Duke “intends to adhere to its commitments under the Ratepayer Protection Pledge with regard to the Proposed Facility.” Notably, commission staff had actually supported the construction of the turbine, citing concerns about Duke’s reserve margins. The NCUC noted that it “understands the Public Staff’s expressed concerns,” but those concerns were outweighed by the NCUC’s reservations, including questions of demand. Department of Energy Approves Funds for Grid Improvement The U.S. Department of Energy (DOE) recently announced that it would fund 31 grid-improvement projects in 26 states. The funding initiative is part of the DOE’s “SPARK” initiative. The funding will include $1.9 billion in federal funding from DOE and $3.35 billion in recipient cost-sharing funding. The funds will go to projects designed to improve grid reliability and lower electricity costs. Recipients plan to reconductor over 1,500 miles of transmission lines and will deploy grid-enhancing technologies across approximately 21,000 miles. DOE stated that this initiative will make available over 23 additional gigawatts of electricity. Texas Moderates Rules Governing Data Center Interconnection The Texas Public Utility Commission adopted new regulations governing large-load interconnections. The rules impose a flat study fee of $100,000 for all proposed interconnections, which departs from the initial proposal to impose study fees using a tiered system based on project size. Additionally, the final rule eliminates the PUC’s previous proposal to impose a non-refundable interconnection fee of $50,000 per MW of contracted peak demand. The final rule also moderates the initially proposed regulations governing Electric Reliability Council of Texas (ERCOT) notifications for large-load customers’ non-utilized capacity. The proposed rules would have required notifying ERCOT within 30 days of missing a scheduled energization milestone by six months. The final rules, however, do not require informing ERCOT unless a scheduled energization milestone is missed by 24 months. FERC Denies TransAlta 202(c) Cost-Recovery Plan The Federal Energy Regulatory Commission (FERC) recently rejected TransAlta’s plan to recover $19.9 million in expenses stemming from a DOE order in which DOE prohibited TransAlta from retiring its coal-powered Centralia power plant. TransAlta had previously intended to retire the facility at the end of 2025. TransAlta’s cost recovery plan proposed spending an additional $23 million on repairs to continue operating the unit. FERC’s main objection had to do with geographic scope. TransAlta’s recovery plan called for recovering costs from California Independent System Operator (CAISO) and the Southwest Power Pool (SPP), but the DOE’s order requiring operation of the plant was designed to ensure reliability in the Northwest assessment area (Montana, Oregon, Washington, and parts of northern California and northern Idaho). Accordingly, FERC was unwilling to allow cost recovery from CAISO and SPP when the order that precipitated the additional costs only related to the Northwest assessment area. FERC informed TransAlta that it would only approve cost recovery from load-serving entities in the Northwest assessment area. FERC’s decision comes amid a rush of DOE emergency orders requiring the continued operation of coal-fired generating units. Litigation Appeals Court Upholds Washington Hydropower Plant With Caveats In a September 21, 2026, opinion, the Washington Court of Appeals largely upheld a Clean Water Act water quality certification by the Washington Department of Ecology for the Goldendale Energy Storage Project, a proposed pumped-water storage hydropower system adjacent to, but off-stream from, the Columbia River. A nonprofit (Columbia Riverkeeper) and the Confederated Tribes and Bands of the Yakama Nation appealed the certification, contending that it failed to impose necessary conditions and monitoring requirements to protect the water quality of the Columbia River. Most saliently, the plaintiffs argued that the project had the potential to leak 100 acre-feet of water per year into tributaries of the Columbia River. The Court of Appeals broadly rejected plaintiffs’ challenge to the state’s conclusion that “the project was designed not to leak.” That said, the Court of Appeals did reverse on one narrow issue. Specifically, the court determined that the state’s conclusion that “leakage from the project’s tunnels would be monitored and reported” was not supported by the evidence because the certification “does not explicitly require monitoring and reporting to determine whether there is any leakage.” Accordingly, the court remanded the matter to the state to impose monitoring and reporting requirements but otherwise affirmed the certification. Legislative Developments California Legislates Restrictions on Data Center Energy Use and Grid Costs On September 21, 2026, California Governor Gavin Newsom signed seven bills broadly regulating data centers in the state. SB 1168 directed the California Public Utilities Commission to assess the energy used by data centers. It also requires the PUC to pass costs of transmission and distribution upgrades and load increases on to data centers, rather than customers. SB 886 and SB 887 compel data centers to pay for infrastructure upgrade and generation costs, and wildfire mitigation costs, in addition to imposing environmental review. The statutes additionally increase local oversight of data centers. AB 1577 imposes a monthly reporting requirement that requires data centers to supply energy consumption and efficiency data to the California Energy Commission. AB 2383 contains incentives for data centers to use onsite clean energy generation. Finally, AB 2469 and AB 2619 require data center developments to assess water supply and develop a water scarcity plan. The statutes also mandate statewide water reporting as a precondition to obtaining and renewing business licenses.