.

Catherine is a leading lawyer on U.S.-China cross-border legal matters; she solves complex legal problems effectively and efficiently.

Catherine is a Partner and Corporate Group Head in the firm’s New York office and chairs the firm’s globally recognized U.S.-China Practice. Catherine serves as a member of the Firm’s Management Committee, the executive body of the Firm.

As a highly skilled attorney and trusted advisor, and one of the most prominent Chinese-speaking business lawyers in the U.S., Catherine is relied on by our clients to handle their strategic corporate transactions and to solve complex legal problems for their business. She has a strong client following among some of the world’s largest corporations, financial institutions and business leaders. She frequently serves as their chief outside legal counsel.

The strategic corporate transactions Catherine handles include foreign direct investment (FDI), greenfield and brownfield projects, mergers & acquisitions, joint ventures, equity and debt financings, and other cross-border corporate and commercial transactions. Her transactional achievements include:

  • designing global corporate and investment structures for multinational corporations to successfully achieve their overseas business expansion goals;
  • representing a series of Chinese companies in securing strategic assets and cutting-edge technologies in the U.S. through mergers, acquisitions and investments; and
  • representing companies and investment funds in strategic investments into industries and technology areas that represent the future economy.

In addition to her transactional experience, Catherine also oversees regulatory compliance (focusing on national security, export control and sanction), government investigation and dispute resolution matters for corporate clients as their chief outside general counsel. She works closely with our regulatory compliance and litigation teams in litigation prevention and risk management, as well as in mapping out important international strategies for our corporate clients. Catherine employs highly successful and proven techniques to solve complex business disputes. Her regulatory compliance and dispute resolution work includes:

  • successfully removing multiple Chinese companies from various U.S. government “blacklists”, including the Military Company List, the BIS Entity List and the Unverified List;
  • successfully preventing multiple Chinese companies from being included in various U.S. government “blacklists”, including the BIS Entity List, the UFLPA Entity List and the FCC Covered List;
  • successfully navigating numerous CFIUS and export control matters in the context of U.S.-inbound corporate investments and cross-border M&A transactions;
  • winning post-closing conflicts regarding net working capital and earn-out payments through effective negotiation and dispute resolution;
  • solving founders’ disputes and shareholder disputes, including several intense incidents that occurred on the eve of corporate IPOs or bet-the-company transactions;
  • protecting minority shareholders’ rights and economic stakes in several controlling shareholder dominated situations;
  • guiding several Chinese public companies or their directors and officers through internal and SEC investigation processes and achieving positive results through effective defense strategies;
  • representing universities and research institutions in NIH, NSF, DOJ and FBI investigations relating to federal research grants; and
  • representing researchers and faculty members across the U.S. in NIH, NSF, DOJ and FBI investigations relating to China ties.

Catherine was elected Partner in 2012, one of our youngest attorneys to make partner.

Outside of her legal work, Catherine is a supporter of the arts and education. She is a Member of the Committee of 100, a Trustee of China Institute and a member of the Board of Governors of the University of St. Thomas School of Law.

For a more comprehensive list of deals and cases Catherine has handled, please see the Experience (Representative Work) section.

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Corporate Global Expansion & Foreign Direct Investment (FDI): Greenfield and Brownfield Projects; M&As; JVs and Other Investments

  • Represented Visirna, a subsidiary of Arrowhead, in the sale of rights to Hypertriglyceridemia Candidate Plozasiran in Greater China to Sanofi.
  • Represented one of the world’s largest solar panel companies in its $200 million+ investment to establish a new solar panel assembly facility in the U.S. in 2023.
  • Represented one of the world’s largest EV battery components companies in its $1 billion investment to establish a new EV battery components manufacturing facility in the U.S. in 2022.
  • Representing a leading China-based e-commerce platform in its ongoing U.S. expansion efforts since 2023.

Education

  • Harvard Law School (2003)
    • Full Scholarship
  • Fudan University, Shanghai, China (B.A., 1999)
    • with Distinction

Bar Admissions

  • New York

Accolades

  • Chambers Global, Foreign Expert (China), Corporate/M&A: USA, 2020-2026
  • IFLR1000, Notable Practitioner: M&A - Foreign: China, 2025-2026
  • Thomson Reuters, “Stand-Out Lawyers,” 2024-2025
  • The Deal, "Top Women in Dealmaking,” 2023

Languages

  • Chinese
  • English

Insights

Client Alert

Treasury and the IRS Give Guidance on "Material Assistance" Rules

March 6, 2026

On February 12, 2026, the U.S. Department of the Treasury (“Treasury”) and the Internal Revenue Service (the “IRS”) released IRS Notice 2026-15 (the “Notice”), which provides guidance on the “material assistance” rules enacted as part of the One Big Beautiful Bill Act (the “OBBBA”). Among other things, the OBBBA introduced a series of restrictions that disallow certain tax credits otherwise available under Sections 45Y, 48E, 45X, 45Z, 45U, and 45Q of the Internal Revenue Code (the “Code”) where a “prohibited foreign entity” (each, a “PFE”) is involved. Like credits under Sections 45Z, 45U, and 45Q that face strict entity-level disqualifications if the taxpayer is a PFE, credits under Sections 45X, 45Y, and 48E face the same strict entity-level ban, as well as an additional “material assistance” restriction. This restriction disallows tax credits if the taxpayer receives material assistance from PFEs, meaning that the “material assistance cost ratio” (“MACR”) is below certain specified threshold percentages, which vary by product and over time. This Notice is the first formal guidance on the PFE-related rules but is limited to the narrow issue of “material assistance” applicable only to Sections 45X, 45Y, and 48E by (a) explaining how to calculate MACR and (b) clarifying the use of three “interim safe harbors”. A. MACR Calculation Section 3 of the Notice outlines a four-step framework for calculating MACR. As a general matter, taxpayers are required to calculate a separate MACR for each qualified facility and each energy storage technology (“EST”) it operates, or for each eligible component it manufactures. Step 1: Identify the types of manufactured products (“MPs”) and manufactured product components (“MPCs”) included in qualified facilities and ESTs, or the types of constituent elements, materials, or subcomponents (“Constituent Materials”) incorporated in the production of eligible components.1 Step 2: Track (a) the “Direct Costs” of each MP or MPC, or the “Direct Material Costs” of each Constituent Material, and (b) whether each MP, MPC, or Constituent Material is mined, produced or manufactured by PFEs (“PFE-Produced/Sourced”). Unless relying on certain exceptions, taxpayers are required to track each MP, MPC, and Constituent Material on an individual basis. a. De Minimis Exception: This exception permits taxpayers to assign MPs or MPCs of the same type among multiple qualified facilities or ESTs placed in service during the same taxable year, if the Direct Costs of all MPs and MPCs represent less than 10% of the total Direct Costs of each qualified facility or EST. b. Averaging Exception: This exception permits taxpayers to (a) track the average Direct Cost/Direct Material Cost of MPs, MPCs, or Constituent Materials of the same type, and (b) determine whether an MP, MPC, or Constituent Material is PFE-Produced/Sourced by calculating the percentage of such items of the same type that are PFE-Produced/Sourced across qualified ESTs or eligible components produced during specified time periods. The “averaging exception” further suggests that a taxpayer may divide a taxable year into multiple “specified periods” and calculate a separate MACR for each period. c. Binding Contract Exception: The Notice confirms a critical statutory grandfathering rule under Section 7701(a)(52)(D)(iv) of the Code. Upon a taxpayer’s election, the cost of any MP, MPC or Constituent Material, acquired pursuant to a binding written contract entered into prior to June 16, 2025, is entirely excluded from the MACR calculation. Nonetheless, this exclusion is subject to specific timing requirements, including construction commencement and place-in-service deadlines for qualified facilities, and sale deadline for eligible components. Step 3: Determine the “Direct Costs” of all MPs incorporated into the qualified facility or EST, or the “Direct Material Costs” of all Constituent Materials used in the production of the eligible component. a. “Direct Costs” of MPs for Qualified Facilities and ESTs: If a taxpayer purchases an MP, the Direct Costs of such MP are simply its acquisition costs (excluding purchaser’s labor costs). In contrast, if a taxpayer manufactures any MP or MPC itself, then the Direct Costs should consist of both the direct material costs and the direct labor costs. b. “Direct Material Costs” of Constituent Materials for Eligible Components2: These are costs that a taxpayer paid or incurred for materials that become an integral part of the eligible component and/or that are consumed in the ordinary course of producing the eligible components. Under this principle, Treasury and the IRS take the position that freight-in costs and tariffs should be included in the calculation of Direct Material Costs. In addition, the Notice provides guidance on calculating Direct Material Costs in the contract manufacturing context. Step 4: Determine the “PFE Direct Costs” of all MPs incorporated into the qualified facility or EST (which should include the cost of all MPCs in each MP), and the “PFE Direct Material Costs” of all Constituent Materials used in the production of the eligible component. The Notice clarifies that whether an MP, MPC or Constituent Material is PFE-Produced/Sourced depends on the PFE status of the supplier as of the taxable year during which the taxpayer paid the Direct Costs/Direct Material Costs of such MP, MPC or Constituent Material. a. “PFE Direct Costs” of MPs for Qualified Facilities or ESTs: The Notice provides specific guidance on how to calculate “PFE Direct Costs” when an MP includes both PFE-Produced/Sourced and non-PFE-Produced/Sourced MPCs. b. “PFE Direct Material Costs” of Constituent Materials (for Eligible Components): The Notice clarifies that, if the direct supplier of a Constituent Material is merely a reseller, then the taxpayer should apply the definition of “PFE” (as defined in Section 7701(a)(51) of the Code) to the entity that actually mined, produced, or manufactured the Constituent Material for all costs associated with those Constituent Materials. This clarification may be read to suggest that the use of a non-PFE to resell PFE-Produced/Sourced Constituent Materials cannot circumvent the material assistance rules. B. Interim Safe Harbors The OBBBA and the Notice provide for several “interim safe harbors” which make the MACR calculation less onerous for taxpayers. a. Identification Safe Harbor and Cost Percentage Safe Harbor The Identification Safe Harbor: It allows taxpayers to use the “2023 - 2025 Safe Harbor Tables”3 to identify MPs and MPCs of a qualified facility or EST, or Constituent Materials of an eligible component. The Cost Percentage Safe Harbor: It allows taxpayers relying on the Identification Safe Harbor to apply a prescribed cost percentage to each MP, MPC and Constituent Material for the calculation of Direct Costs/Direct Material Costs, PFE Direct Costs/PFE Direct Material Costs, and MACR. The Notice imposes certain limitations on taxpayers’ eligibility to use the Identification Safe Harbor and the Cost Percentage Safe Harbor. A taxpayer operating a qualified facility or EST may use these two safe harbors only if such qualified facility or EST is listed as an “Applicable Project” in the 2023-2025 Safe Harbor Tables. A taxpayer manufacturing an eligible component may use these two safe harbors only if such eligible component is listed in Section 4.01(3)(d) of the Notice. To the extent that a taxpayer is eligible to use the Identification Safe Harbor and the Cost Percentage Safe Harbor, it may identify the relevant MPs, MPCs and Constituent Materials (as well as their respective cost percentage) by table reference and disregard any items used in actual production that are not listed in the applicable 2023-2025 Safe Harbor Table. In addition, if the applicable table lists any MP, MPC or Constituent Material that is not used in actual production, such item could also be disregarded for purpose of calculating MACR. b. Certification Safe Harbor The Certification Safe Harbor allows taxpayers to determine whether an MP, MPC or Constituent Material is PFE-Produced/Sourced so that taxpayers do not need to independently conduct an exhaustive supply-chain analysis. In addition to certain formality requirements (including providing the supplier’s EIN and signing under penalties of perjury), a valid certification from a direct supplier should be structured as a written attestation that includes one of the following: Option A: The supplier may provide a broad certification that the MP, MPC, eligible component or Constituent Material (as applicable) it supplied was not PFE-Produced/Sourced, and that it does not know (or have reason to know) that any prior supplier in the chain of production is a PFE; or Option B: Instead of providing the broad certification described in Option A, the supplier may alternatively certify the total Direct Costs/Direct Material Costs of the non-PFE-Produced/Sourced MP, MPC, eligible component or Constituent Material (as applicable). However, taxpayers and suppliers should be aware that the abusive use of this safe harbor may result in penalties and could expose them to significant financial and legal risks.  C. What Happens Next? a. Rules that Treasury and the IRS Expect to Include in Future and Present Clarifications Treasury and the IRS indicate that they will include comprehensive rules in forthcoming regulations regarding the “Application of foreign-influence entity rules.” However, Section 5.01 of the Notice already provides an immediate, critical guidance on “effective control.” The Notice states that the statutory control provisions operate independently. For example, if a taxpayer makes a payment to a Specified Foreign Entity (each, an “SFE”) under an IP licensing agreement related to a facility or eligible component, and that agreement was entered into or modified on or after July 4, 2025, the SFE exercises effective control, automatically rendering the taxpayer a Foreign-Influenced Entity. Further forthcoming regulations will include rules to “prevent entities from evading, circumventing, or abusing the application of the PFE restrictions”, which may further clarify the scope of the OBBBA’s anti-circumvention provisions. b. Comment Period and Process Taxpayers are encouraged to submit comments to Treasury and the IRS on general issues relating to PFE and material assistance, as well as on certain specific questions set forth in Section 7.01 of the Notice, by March 30, 2026. c. Reliance on the Notice Taxpayers may rely on Sections 3 and 5.01 of the Notice until the date that is 60 days after the publication of the forthcoming regulations and may rely on Section 4 of the Notice until the date that is 60 days after the publication of the forthcoming safe harbor tables. Dorsey & Whitney can continue to monitor developments and provide updates and analysis regarding this Notice and forthcoming regulations addressing PFE issues. 1 “MP” is defined in Section 3.01(2)(c) of Notice 2023-38, “MPC” is defined in Section 3.01(2)(d) of Notice 2023-38, and certain additional definitions could be found in Section 3.01(2) of Notice 2023-38. 2 Taxpayers relying on Section 45X integrated components rule should be aware of new statutory limitations. 3 “2023-2025 Safe Harbor Tables” include: (a) Sections 5.05, 5.06, 6.02, and 7.02 of Notice 2025-08, (b) Section 3.02 in Notice 2024-41 for a Hydropower Facility or a Pumped Hydropower Storage Facility, and (c) Section 3.04 in Notice 2023-38 for an Offshore Wind Facility. The guidance contained in IRS Notice 2026-15 is interim in nature and precedes the issuance of comprehensive proposed regulations by the Department of the Treasury. Consequently, the interpretation and enforcement of the OBBBA are rapidly evolving. This publication does not, and is not intended to, provide legal, tax or accounting advice, and readers should consult their tax advisors concerning the application of tax laws to their specific facts and circumstances, particularly regarding the complex supply chain and ownership restrictions imposed by the OBBBA. This analysis is not tax advice and is not intended or written to be used, and cannot be used, for purposes of avoiding tax penalties that may be imposed on any taxpayer. The information contained herein is general in nature and based on authorities that are subject to change without notice.

Articles

“Foreign Entity of Concern” and Its Impact under the Inflation Reduction Act

December 27, 2023

This article is the first in a special series on overseas expansion of Chinese EV and EV battery companies. Why has the definition of “Foreign Entity of Concern” drawn widespread attention? “Foreign entity of concern” (“FEOC”) is a term that frequently appears in many recently enacted laws in the United States, including the CHIPS and Science Act, the Inflation Reduction Act (“IRA”), and the Infrastructure Investment and Jobs Act (the “Jobs Act”). In general, an entity designated as an FEOC and/or any products containing any components or materials produced or processed by an FEOC will be disqualified from being eligible for financial incentives and tax credits under these laws. Therefore, the definition of FEOC holds significant importance for Chinese companies doing business with the U.S., as well as Chinese-owned companies operating within the U.S., particularly in industries such as semiconductor chips, electric vehicles (“EVs”), EV batteries, and their interconnected supply chains. On December 1, 2023, the U.S. Department of Energy (“DOE”) released proposed guidance defining FEOC under the Jobs Act (the "Proposed Guidance"), which holds particular relevance to Internal Revenue Code Section 30D – the Clean Vehicle Tax Credit – as well as the IRA. This comprehensive guidance aims to provide clarity on the definition of FEOC and the specific applications of the FEOC restrictions, carrying substantial implications for Chinese EV and EV battery manufacturers as well as their suppliers and customers. What local content requirements does a clean vehicle need to meet to be qualified for the Section 30D tax credit under the IRA?The IRA, enacted by the Biden-Harris administration in 2022, serves multiple purposes, including economic stimulus, job creation, and the promotion of American domestic manufacturing. A key focus of this law is to amplify the federal government’s financial support to the clean energy sector. To stimulate the sales of clean vehicles in the U.S., the U.S. federal government will provide a consumer tax credit of up to US$7,500 for each purchase of a qualified EV, of which US$3,750 is allocated to an EV meeting the "critical mineral" requirement, and the other US$3,750 is assigned to an EV that meets the "battery component" requirement. How does the FEOC restriction disqualify certain EVs from the coverage of the Section 30D tax credit under the IRA?In April 2023, the Treasury Department and the IRS released guidance on the clean vehicle provisions under the IRA, reaffirming the rule relating to the excluded entity provision of the Section 30D tax credit. Starting in 2024, vehicles containing battery components manufactured or assembled by an FEOC will be ineligible for the $3,750 tax credit. Starting in 2025, vehicles whose batteries contain certain “critical minerals” extracted or processed by an FEOC will also be ineligible for the other $3,750 tax credit. According to this rule, if any supplier to an automotive OEM is identified as an FEOC, the resulting EV containing battery components and/or critical minerals produced or processed by such a supplier will be disqualified from the corresponding tax credit, and the automotive OEM will lose the subsidy advantages. In essence, when selecting suppliers for battery components and/or critical minerals, an automotive OEM or battery manufacturer will be incentivized to choose a non-FEOC supplier. Which suppliers of battery, battery components or critical minerals would be considered FEOCs according to the Proposed Guidance? Within the framework of the IRA, a particularly ambiguous facet of the FEOC definition pertains to foreign entities that are “owned by, controlled by, or subject to the jurisdiction or direction of a government of a foreign country that is a covered nation[1].”  The Proposed Guidance released on December 1 provided a further interpretation of such definition. As per the Proposed Guidance, a foreign entity is an FEOC only if it falls under either scenario A or B below.  A foreign entity is subject to the jurisdiction of a covered nation’s government. Under the Proposed Guidance, a foreign entity is “subject to the jurisdiction” of a covered nation’s government if: (i) the foreign entity is incorporated or domiciled in, or has its principal place of business in, a covered nation; or (ii) with respect to the critical minerals, components, or materials of a given battery, the foreign entity engages in the extraction, processing, or recycling of such critical minerals, the manufacturing or assembly of such components, or the processing of such materials, in a covered nation. A foreign entity is owned by, controlled by, or subject to the direction of a covered nation’s government.Under the Proposed Guidance, an entity is “owned by, controlled by, or subject to the direction” of another entity (including the government of a covered nation) if: (i) 25% or more of the entity's board seats, voting rights, or equity interest are cumulatively held by that other entity, whether directly or indirectly via one or more intermediate entities; or (ii) with respect to the critical minerals, battery components, or battery materials of a given battery, the entity has entered into a licensing arrangement or other contract with another entity (a contractor) that entitles that other entity to exercise effective control over the extraction, processing, recycling, manufacturing, or assembly (collectively, “production”) of the critical minerals, battery components, or battery materials that would be attributed to the entity. Note that as per the definition of “foreign entity,” a U.S. subsidiary of a non-U.S. company is also deemed as a “foreign entity”, thus it could be considered an FEOC if it falls under either A or B above.  However, a subsidiary of an FEOC is not automatically considered as an FEOC unless the subsidiary itself falls under either scenario A or B above. “Government of a [covered nation]” is defined to include even individual government representatives. Which individuals would be counted as “government of a [covered nation]”?The DOE proposed to interpret “government of a foreign country” to mean: (i) a national or subnational government of a foreign country; (ii) an agency or instrumentality of a national or subnational government of a foreign country; (iii) a dominant or ruling political party of a foreign country; or (iv) a current or former senior foreign political figure. The DOE further explains that “Senior Foreign Political Figure” in (iv) of the definition means: (a) a senior official, either in the executive, legislative, administrative, military, or judicial branches of a foreign government (whether elected or not), or of a dominant or ruling foreign political party, and (b) an immediate family member (spouse, parent, sibling, child, or a spouse’s parent and sibling) of any individual described in (a). The DOE also provided explanations of the above interpretation specifically regarding China. For more details, please refer to Section C of the proposed interpretive rules released by the DOE. How can a Chinese supplier of battery, battery components or critical minerals determine whether their products may affect their clients’, i.e. automotive OEMs’, FEOC compliance? Based on the Proposed Guidance and the examples of indirect control delineated by the DOE, in the table below, we analyzed different types of Chinese EV and EV battery suppliers under the definition of FEOC.  Please note that the terms of “state-owned enterprise”, “enterprise with non-controlling state ownership” and “non-state-owned company” in the table below carry the meanings commonly used in the Chinese context. In this context, “state-owned” denotes equity ownership equal to or exceeding 50% held by the state; "non-controlling state ownership" means equity ownership between 0% to 50% held by the state; and "non-state-owned company" refers to a company without any state ownership. However, it is crucial to be mindful that the definition of “government of a [covered nation]” under the Proposed Guidance is very broad. For example, as discussed in paragraph 5 above, certain individuals may be deemed as “government of a [covered nation]” according to the Proposed Guidance. A company controlled by such individuals may be deemed as controlled by the “government of a [covered nation],” and thus becomes an FEOC. Furthermore, for the purpose of determining a company’s FEOC status, it is imperative not only to review its direct and indirect equity ownership but also to delve into factors such as the board seats, voting rights, and contract arrangements. For example, certain type of companies in the table below may not be considered as an FEOC based on its equity ownership alone; however, it could still be considered as an FEOC if more than 25% of its board members are individuals falling within the extensive category of “Senior Foreign Political Figure”. Types of Companies FEOC Status 1. Chinese state-owned enterprise (incorporated in China), and its wholly-owned subsidiaries FEOC, since it is directly or indirectly controlled by Chinese government through majority equity ownership. 2. Equity joint venture (incorporated, domiciled or with its principle place of business outside of China, the “JV”) with its controlling stake held by a Chinese state-owned enterprise (the “Parent”) If the Parent owns 25% or more equity or voting rights in JV, the JV is likely to be deemed as an FEOC. If the Parent owns less than 25% equity or voting rights in the JV, andif 25% or more of the board members of the JV are CCP members or current/former Senior Foreign Political Figures, the JV may be deemed as an FEOC; if fewer than 25% of the board members of the JV are CCP members or current/former Senior Foreign Political Figures, but 25% or more of the board members of the Parent are CCP members or current/former Senior Foreign Political Figures, the Proposed Guidance does not offer a clear answer as to whether the JV is an FEOC. It is possible that indirect foreign government control via board members of the Parent may be extended to the JV, potentially resulting in the JV to be deemed as an FEOC. As the DOE is currently soliciting public comments to the Proposed Guidance, this issue may be further clarified in the final version of the rules established in the Proposed Guidance. 3. JV with its controlling stake held by an enterprise with non-controlling state ownership (the “Parent”) If the state ownership or voting rights in the Parent amounts to 25% or more, the JV is likely to be deemed an FEOC. If the state ownership or voting rights in the Parent amount to less than 25%, andif 25% or more of board members of the JV are CCP members or current/former Senior Foreign Political Figures, the JV may be deemed as an FEOC; if fewer than 25% of the board members of the JV are CCP members or current/former Senior Foreign Political Figures, but 25% or more of the board members of the Parent are CCP members or current/former Senior Foreign Political Figures, the Proposed Guidance does not offer a clear answer as to whether the JV is an FEOC. It is possible that indirect Chinese government control via board members of the Parent may be extended to the JV, potentially resulting in the JV to be deemed as an FEOC; if each of the JV and the Parent has less than 25% board members as CCP members or current/former Senior Foreign Political Figures, the JV is not likely to be deemed as an FEOC. 4. JV with non-controlling equity interest held by an enterprise with non-controlling state ownership (the “Parent”) If, by multiplying the ownership percentages (by equity or by voting rights) at both the JV level and the Parent level, the resulting state ownership (by equity or by voting rights) in the JV is no less than 25%, the JV may be deemed as an FEOC. If, by multiplying the ownership percentages (by equity or by voting rights) at both the JV level and the Parent level, the resulting state ownership (by equity or by voting rights) in the JV is less than 25%, andif 25% or more of board members of the JV are CCP members or current/former Senior Foreign Political Figures, the JV may be deemed as an FEOC; if fewer than 25% of the board members of the JV are CCP members or current/former Senior Foreign Political Figures, but 25% or more of the board members of the Parent are CCP members or current/former Senior Foreign Political Figures, the Proposed Guidance does not offer a clear answer as to whether the JV is an FEOC. It is possible that indirect foreign government control via board members of the Parent may be extended to the JV, potentially resulting in the JV to be deemed as an FEOC; if each of the JV and the Parent has less than 25% board members as CCP members or current/former Senior Foreign Political Figures, then the JV is not likely to be deemed as an FEOC. 5. Non-state-owned company incorporated in China FEOC, since it is incorporated in China and subject to the jurisdiction of the Chinese government. 6. Wholly-owned subsidiary (incorporated, domiciled or with its principal place of business outside of China, the “Subsidiary”) of a non-state-owned company that is incorporated in China (the “Parent”) Although the Subsidiary is wholly owned by an FEOC, the Subsidiary is not automatically considered as an FEOC. Since there is no state ownership in such Subsidiary, the determination of whether the Subsidiary is an FEOC depends on the composition of the board of the Subsidiary and the board of the Parent.If 25% or more of board members of the Subsidiary are CCP members or current/former Senior Foreign Political Figures, the Subsidiary may be deemed as an FEOC. If fewer than 25% of the board members of the Subsidiary are CCP Members or current/former Senior Foreign Political Figures, but the Parent’ board comprises 25% or more CCP Members or current/former Senior Foreign Political Figures, the Proposed Guidance does not offer a clear answer as to whether the Subsidiary is an FEOC. It is possible that indirect foreign government control via board members of the Parent may be extended to the Subsidiary, potentially resulting in the Subsidiary to be deemed as an FEOC. Given that the Subsidiary represents the majority scenario of legal entities used by Chinese EV and EV battery companies in their investments in the United States, the final version of the Proposed Guidance to be published after public comments being solicited may include revised provisions or further clarifications on this issue. If each of the Subsidiary and the Parent has less than 25% board members as CCP members or current/former Senior Foreign Political Figures, the Subsidiary is not likely to be deemed as an FEOC. The determination of FEOC status is extremely complex, requiring a careful facts-based review on a case-by-case basis. Should you have any inquiries regarding the determination of FEOC status of your company, please feel free to reach out to the authors of this article for further consultation. [1] A covered nation refers to any of (A) the Democratic People’s Republic of North Korea; (B) the People’s Republic of China; (C) the Russian Federation; and (D) the Islamic Republic of Iran.  For the purpose of this article, we only discuss the rules relevant to China.

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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.

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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).

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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?

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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.