.

The TMCA

Legal Developments in the World of Trademarks, Copyrights, Advertising and Beyond

Trademarks

Change is Coming: New Rules for TTAB Opposition and Cancellation Proceedings

January 10, 2017

by Susan Progoff

Download as a PDF

Share this page

The United States Patent and Trademark Office recently issued final rules amending the Trademark Trial and Appeal Board Rules of Practice and raising fees for many transactions involving trademarks.  The new rules and fees will take effect on January 14, 2017, and will apply to all proceedings filed on or after that date and, to the extent practical, to all proceedings that are pending on that date.  A link to the new rules appears here, and a link to the new fees appears here. The new TTAB rules are intended to make proceedings in the Trademark Trial and Appeal Board more efficient and less costly, and formalize many of the Board’s current practices.

Electronic Communications

The new rules move TTAB practice toward paperless filing and docketing by strongly encouraging parties to file documents electronically through ESTTA, the Board’s electronic filing system.  The rules also encourage the parties to communicate with each other electronically by making e-mail the default system for service, and eliminate the practice of allowing parties extra time to respond to documents served by First Class Mail.  The parties may agree in writing to service by means other than e-mail, but because the response time will not change if they do so, the parties may also wish to agree to provide a courtesy copy by e-mail at the time a document is served.

In addition, all documents that are required to be filed with the Board must be filed electronically through ESTTA, with only a few limited exceptions.  If ESTTA is not operating when a document is due, in most, but not all, circumstances the filer may file the document by paper, along with a petition to the Director and the required $200 fee for the petition, requesting leave to file a paper version of the document.  This rule makes plain that there may now be a cost to waiting until the last minute to make a filing.

Commencing an Opposition or Cancellation

As under current practice, parties may obtain extensions of up to 180 days from publication to oppose an application.  A request to extend the time to oppose an application filed under Section 66 may be filed only electronically.  There are no exceptions to this rule.  It therefore is important not to wait until the last minute to request an extension if a Madrid application is involved.  An extension request for an application filed under Sections 1 or 44 should be filed electronically, but if ESTTA is down, the request may be made through a paper filing accompanied by a petition to the Director and the required fee.

The opposition period for all applications is the same as under current practice, i. e., 30 days from publication.  A party may request an initial extension of 30 days upon request, followed by a second request for a 60-day extension upon a showing of good cause, or one extension of 90 days upon a showing of good cause.  It will no longer be possible to request an initial extension of 60 days.  In addition, a party may request a final 60-day extension upon stipulation or with the consent of the applicant.  Beginning on January 14, 2017, there will be a fee of $100 for each electronically-filed extension request up to 120 days from publication, and $200 for a final 60-day extension.  The fees for filing these requests by paper will be $200 and $300, respectively.

The substance of a Notice of Opposition or Petition for Cancellation will not change from current practice, but there will be some important procedural differences.  First, oppositions against Madrid applications must be filed electronically.  There are no exceptions.  Oppositions against applications filed under Sections 1 or 44 and Petitions for Cancellation should be filed electronically, but if ESTTA is down the Notice of Opposition or Petition for Cancellation may be filed by paper accompanied by a petition to the Director and the applicable fee.  If a Notice of Opposition is being filed at the opposition deadline, or a Petition for Cancellation includes any claims based on grounds that are time-sensitive, the notice or petition may need to be filed using the Priority Mail Express procedure set forth in Trademark Rules 2.195-2.198 if ESTTA is down.

In addition, in an opposition against a Madrid application, the cover sheet to the Notice of Opposition will control the grounds and goods or services that are the subject of the opposition.  Once the opposition deadline has passed, the opposer cannot add additional grounds or goods/services to an opposition against a Madrid application.  Thus, it is crucial to confirm that all goods or services that will be the subject of an opposition against a Madrid application and all grounds for such an opposition are listed in the cover sheet before the time to oppose closes.

Finally, the Board will be reinstituting its pre-2007 practice of serving the Notice of Opposition or Petition for Cancellation.  When a Notice of Opposition or Petition for Cancellation is in proper form, the Board will send an e-mailed notice of institution identifying the proceeding and containing a link to the electronic proceeding record to the opposer or its counsel and to the applicant or its attorney in an opposition, or in a cancellation, to the petitioner or its counsel and to the record owner of the registration that is the subject of the proceeding or its domestic representative, and, if the petitioner identifies an owner who is not the record owner, notice will also be sent to the alleged owner.  A petition for cancellation must indicate, to the best of the petitioner’s knowledge, the name, address and current e-mail address of the current owner of the registration.  Because of these new procedures, it is important that the owner of a registration keep its contact information current in the PTO’s registration files.

Discovery

Under the new rules, discovery will be more limited and streamlined than under current practice.  The new rules also afford the parties more flexibility to tailor discovery to the specific needs of their case by, for example, limiting its scope, shortening the response times or agreeing to reciprocal disclosures instead of formal discovery requests.  Also, unlike practice under the present rules, requests must be served early enough in the discovery period that responses will be due before discovery closes.  This means that a party will no longer be able to wait until discovery is about to close to serve its requests.

The scope of discovery will also be more limited.  The new rules expressly incorporate the doctrine of proportionality, which is also made explicit in the revised version of the Federal Rules of Civil Procedure that took effect in December 2015, and has been a hallmark of the Board’s decisions concerning discovery for many years.  In addition, the number of document requests and requests for admission each will be limited to 75, including all subparts.  As with the current practice with respect to interrogatories, a party who believes that it has been served with more than the allowed number of requests may respond by interposing a general objection, after which the propounding party may re-serve the discovery in amended form to comply with the limits imposed by the rules.  A party may move to increase the discovery limits for good cause.  Comments to the rules suggest that good cause may be found when the opposing party is a foreign entity that is not subject to a deposition in the U.S., or when the opposition involves multiple parties or an extensive list of goods or services.  There is one exception to the 75 request limit for requests for admission to allow each party to serve one comprehensive request to authenticate documents that the opposing party produced in discovery.  Such a request must identify the specific documents to which the request applies, and the responding party must admit which specific documents are authentic, and identify any that are not.

In general, a discovery deposition of a witness residing in a foreign country must be taken by written interrogatories unless the Board, upon motion for good cause, orders that the deposition be taken orally or the parties so stipulate.  If an officer, director, managing agent or other witness of a foreign party will be present in the United States during the discovery period, that person may be deposed orally while in the U.S.  There is no obligation on a foreign party to disclose if or when its witnesses will be traveling to the U.S. during the discovery period.  It would be advisable, therefore, to include an interrogatory to a non-U.S. adverse party to request this information specifically if an oral deposition is of interest.

There also were changes to Trademark Rule 2.120(f), which governs motions to compel discovery.  As with current practice, the parties must meet and confer in an attempt to resolve the issues before such a motion may be filed.  The amendments to the rules, however, have imposed new time limits on when a motion to compel may be brought.  A motion to compel a party to serve initial disclosures must be brought within 30 days of when the disclosures were due, or the motion is waived.  A motion to compel involving any other type of discovery request must be made promptly, and in no event may be brought after the first pre-trial disclosures are due.

The changes to the discovery rules will require parties to focus on the information that is most relevant to their cases, and should discourage broad, sweeping requests that amount to a fishing expedition.  These changes will also benefit parties who start discovery early in the discovery period, and who are prompt in raising any discovery disputes.

Trial

Probably the modifications that have received the most attention are the changes to the manner in which evidence may be submitted during a party’s testimony period.  Under current practice, parties typically present evidence through oral testimony of one or more witnesses at a testimonial deposition, which is subject to the Federal Rules of Evidence.  As at a trial in a court, the opposing party or its attorney may make objections to testimony or exhibits marked at the deposition, and may cross-examine the witness.  Testimonial evidence may also be presented in other formats, such as through an affidavit or declaration, but only if the parties agree to that procedure.

This will change under the new rules, which will allow a party to decide unilaterally whether it wishes to present its direct testimony through an oral deposition or whether it prefers to do so through an affidavit or declaration, which can be considerably less expensive and time-consuming.  Under the new Rule 2.123, a party may submit its direct testimony through an affidavit or declaration, which must comply with the Federal Rules of Evidence.  When a party elects to present a witness’s direct testimony in writing, however, the proffering party must make the witness available for cross-examination, which can be done orally if the witness is in the United States, or through written interrogatories if the witness is in a foreign country.  A party electing to cross-examine an opposing party’s witness must bear the expense of the cross-examination, which will consist primarily of paying for the court reporter and copies of the transcripts.  The proffering party will be responsible for the cost of producing the witness.  A notice to cross-examine a declarant or affiant must be served within twenty days of service of the affidavit or declaration, and must be filed with the Board.  The deposition must be completed within thirty days of the date of the notice.

The new rules also specify the procedure for taking testimony from witnesses who are not located in the United States.  Generally, testimony of a non-U.S. witness must be taken through written interrogatories.  Accordingly, if a foreign witness submits a declaration in a TTAB proceeding, the cross-examination must be conducted through written interrogatories.  The new rules, however, provide that if the non-proffering party serves a notice of taking testimonial deposition by written questions of a witness who will be in the United States at the time the deposition will be taken, the party seeking the deposition may, within twenty days of service of the notice, file a motion on good cause to have the deposition taken orally.

In addition to submitting trial evidence by testimony or affidavit/declaration, as in the past a party may submit certain types of evidence, such as printouts of registrations, printed publications, internet materials and the like, through a Notice of Reliance.  The rules have clarified, but not changed, certain aspects of the requirements for evidence that may be submitted through a Notice of Reliance.

Related Categories:

Trademarks

Firm Highlights

Attorney John Cooney Returns to Dorsey in the Finance & Restructuring Group in Minneapolis

News

Attorney John Cooney Returns to Dorsey in the Finance & Restructuring Group in Minneapolis

The image shows classic stone columns and steps, which often represent government buildings, courthouses, or legal institutions.

Insights

The Supreme Court Update - October 14, 2026

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.

Dorsey Recognized in Chambers UK 2027

News

Dorsey’s London Corporate Practice and Partners Earn Chambers UK 2027 Rankings

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.

Regulatory Affairs Partner Randy Dann Joins Dorsey

News

Regulatory Affairs Partner Randy Dann Joins Dorsey

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.

News

Dorsey London Team Secures Positive Rankings from The Legal 500, Including Premium Recognition for Commercial Litigation Team

Regulatory Affairs Partner Jeff Beelaert Joins Dorsey in Boise

News

Regulatory Affairs Partner Jeff Beelaert Joins Dorsey in Boise

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?