Oregon Amends Consumer Privacy Act
On May 27, 2025, and June 3, 2025, Oregon Governor Tina Kotek signed into law H.B. 3875 and H.B. 2008, each of which amends the Oregon Consumer Privacy Act (the “Act”).
H.B. 3875 expands the Act’s scope to cover all motor vehicle manufacturers that control or process personal data obtained from consumers’ use of vehicle or any component of a vehicle, by removing car makers and affiliates from an exemption for entities that process the data of fewer than 100,000 consumers or derives 25 percent or more of their revenue from selling data. As a result, drivers have the right to opt out of having their personal information sold or used for advertising by car makers.
H.B. 2008 amends the Act to prohibit the sale of precise geolocation data relating to an individual or their device’s present or past location (within a radius of 1,750 feet), and the sale of personal data of children under age 16.
Supreme Court Decision Limits the Opportunity for NEPA to Derail Projects
The U.S. Supreme Court’s recent 8-0 ruling limited the scope of the National Environmental Policy Act (NEPA), the national environmental law that mandates federal agencies to assess the environmental effects of their proposed actions before making decisions. In the May 29, 2025, decision in Seven County Infrastructure Coalition v. Eagle County, Colorado, the Supreme Court found that substantial judicial deference should be afforded to agencies under NEPA, and that NEPA does not require agencies to consider the environmental effects of projects that are separate in time or place from the project at hand.
The case concerned construction of an 88-mile railroad line connecting Utah’s oil-rich Uinta Basin to the national freight rail network to facilitate the transportation of crude oil to refineries along the Gulf Coast. As part of its project review, the Surface Transportation Board (Board) prepared a 3,600-page environmental impact statement (EIS) that addressed significant environmental effects of the project and identified feasible alternatives, as required under NEPA. The Board concluded that the project’s transportation and economic benefits outweighed its environmental impacts and approved the railroad line. Eagle County, Colorado, and several environmental organizations challenged the Board’s EIS and final approval order in federal court. The U.S. Court of Appeals for the D.C. Circuit ultimately vacated the Board’s EIS and final approval order, holding that the Board’s analysis of environmental effects should have included reasonably foreseeable impacts from upstream oil drilling and downstream oil refining projects.
The Supreme Court characterized the D.C. Circuit’s decision as belonging to a line of NEPA cases guided by an overly aggressive judicial approach. According to the Court, NEPA is a purely procedural statute that requires an agency to prepare an EIS, but does not require an agency to weigh environmental consequences in any particular way. The Court further emphasized that NEPA is a “procedural cross-check” to inform agency decision-making, not a “substantive roadblock.” It further criticized the use of NEPA by project opponents as a “blunt and haphazard tool” to stop or slow new infrastructure and construction projects.
When determining whether an agency’s EIS is compliant with NEPA, the Court affirmed that courts should afford “substantial deference” to the agency. The essential determination is “not whether an EIS in and of itself is inadequate, but whether the agency’s final decision was reasonable and reasonably explained.” Thus, courts must defer to agencies so long as they are operating within this “broad zone of reasonableness.”
The Court distinguished Seven County from its recent landmark decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which applied de novo judicial review in cases when an agency interprets a statute. In cases in which an agency exercises discretion granted by statute, judicial review is conducted under the Administrative Procedure Act’s “arbitrary and capricious” standard, under which a court asks whether the agency action was reasonable.
This judicial deference in NEPA cases extends to factual determinations made by agencies about what details are relevant in an EIS. The Court affirmed that an EIS must address the reasonably foreseeable environmental effects of the project at hand. However, the Court also noted that courts should defer to agencies about the scope of analysis, including decisions about how far to go in considering indirect environmental effects from the project at hand and whether to analyze environmental effects from other projects separate in time or place from the project at hand.
Seven County’s limitations on the required scope of agency analysis under NEPA to the direct and indirect environmental effects of the project at hand may streamline agency review of infrastructure, construction, and energy projects. However, uncertainty remains as agencies determine the extent of analysis required during project review, which may differ by agency or types of projects or may change with administrations. The ruling may also cause environmental groups to reconsider when and how to mount challenges to projects under NEPA.
Alexandra Prendergast contributed to this article
Supreme Court Scales Back the NEPA Roadblock to Infrastructure Projects
Overview
On May 29, 2025, the U.S. Supreme Court issued a significant decision clarifying the scope of environmental review required under the National Environmental Policy Act (“NEPA”) for major infrastructure projects. The Court recognized and reined in what infrastructure practitioners have long understood: NEPA strayed far beyond its “procedural” and “informational” roots to become an obstruction to infrastructure projects across the country.
As brief background, a project developer filed an application with the Surface Transportation Board (“STB”) for a proposed 88-mile railroad line in Utah. The STB, pursuant to its NEPA requirements, issued a 3,600-page environmental impact statement (“EIS”) analyzing the environmental effects of the project and ultimately approved the railroad line. Groups challenged the STB’s approval, and the D.C. Circuit vacated the STB’s decision, ordering the STB to analyze the potential “upstream” impacts of the proposed railroad, which included possible increased oil and gas drilling activities in Utah, and potential “downstream” impacts of the railroad, such as increased oil refining in Texas.
The Supreme Court reversed the D.C. Circuit Court’s prior decision, finding that the D.C. Circuit: (1) did not afford substantial deference to the STB required in NEPA cases, and (2) incorrectly ordered the STB to review the environmental effects of projects separate in time and place from the actual 88-mile railroad under consideration.
Substantial Deference to Agencies in NEPA Reviews
First, the Court emphasized that lower courts should provide deference to agencies when evaluating the agencies’ NEPA review of a project. This is because an agency’s environmental review will include “a series of fact-dependent, context-specific, and policy laden choices about the depth and breadth of [the agency’s] inquiry….” Courts should thus afford agencies “substantial deference” when the agencies’ choices are “within a broad zone of reasonableness,” described further as “a rule of reason.”
Reasonably Close Causal Relationship to the Project
Second, the Court reined in the scope of what the environmental review must consider, i.e., the “proposed action.” Future or geographically separate projects that may be built or expanded are not generally part of NEPA’s scope. The Court characterized this finding in legal terms as “proximate causation,” those effects that have a reasonably close causal relationship between the project at hand and the environmental effects of other projects would be included in a NEPA review.
The Court rejected, however, a “but for” causal relationship, providing that even though environmental effects may be reasonably foreseeable, such as increased oil and gas development from the proposed railroad line, lower courts should not second guess an agency’s decision to exclude from NEPA review projects that are separate in time or place from the actual project being considered. The Court noted that the agency may draw a “manageable line” for what it reasonably concludes should be considered. Summarizing this point, the Court stressed that “[a] relatively modest infrastructure project should not be turned into a scapegoat for everything that ensues from upstream oil drilling to downstream refinery emissions.”
Conclusion
While a significant victory for project proponents, this decision does not foreclose the scope of the extent of an environmental review in a NEPA EIS beyond the confines of the actual project. Project proponents should evaluate potential environmental impacts beyond the actual project and analyze whether or not those environmental impacts would be considered “reasonable,” for example:
Does the agency that is making the decision regulate the potentially foreseeable environmental effects?
Are the potentially foreseeable environmental effects geographically separate from the actual project?
Are the potentially foreseeable environmental effects a hypothetical future event?
Are the potential environmental effects speculative?
Privacy Tip #446 – Department of Motor Vehicles Warns Drivers About Smishing Text Surge
Smishing schemes involving Departments of Motor Vehicles nationwide have increased. Scammers are sending SMS text messages falsely claiming to be from the DMV that “are designed to deceive recipients into clicking malicious links and submitting personal and/or financial information under false threats of license suspension, fines and credit score or legal penalties.”
The Rhode Island Division of Motor Vehicles (RIDMV) issued an alert to the public indicating that one of the smishing messages sent to drivers was a “final notice” from the DMV that states that if the driver doesn’t pay an unpaid traffic violation that enforcement penalties, including license suspension will begin imminently. The DMV warned drivers that the text message cites “fictitious legal code and link to fraudulent websites.”
The DMV warned drivers that the messages are not from the DMV and that it does “NOT send payment demands or threats via text message, and we strongly urge the public to avoid clicking on any suspicious links or engaging with these messages. Clicking any links may expose individuals to identity theft, malware, or financial fraud.”
The RIDMV provides these tips to avoid smishing scams:
Do NOT click on any links or reply to suspicious text messages.
Do NOT provide personal or financial information.
Be aware that DMV related information is sent via mail, not text messages.
Report fraudulent messages to the FBI’s Internet Crime Complaint Center (www.ic3.gov) or forward. them to 7726 (SPAM) to notify your mobile provider.
Report the message to the FTC.
These tips apply to all drivers. No state DMV is sending a text message to drivers, so if you get one, it is surely a scam. Do not be lured into clicking on links in text messages for fear of license suspension or other actions by the DMV. If you get a text purporting to be from DMV alleging your license is at risk, don’t click on the link—it’s a smishing scam.
Understanding the Metropolitan Washington Airports Authority Bid Protest Procedures
When participating in a government procurement process, understanding the rules governing bid protests is crucial. For contractors engaging with the Metropolitan Washington Airports Authority (MWAA), strict procedural guidelines must be followed to challenge a solicitation, evaluation, or contract award. Here’s what you need to know about filing a bid protest with MWAA.
Filing a Protest: Strict Methods of Delivery
All bid protests must be formally addressed to the vice president of the Office of Supply Chain Management (OSCM). Importantly, MWAA generally does not accept electronic submissions. Protests must be delivered using one of the following methods:
Registered or certified mail with return receipt requested
Nationally recognized delivery service (with tracking showing date sent and received)
Hand delivery to the MWAA Procurement and Contracts Department
Any protest sent via email or other electronic means may be rejected.
Timing Is Everything: Deadlines for Submission
MWAA distinguishes between two types of protests, each with its own deadline:
1. Protests Based on Solicitation Terms
If the protest is based on the contents or omissions in a solicitation or an amendment:
The protest must be received within 14 days of either the solicitation issuance date or the date of the relevant amendment, whichever is earlier.
Alternatively, if the offer submission deadline falls earlier, the protest must be filed before that deadline.
2. Protests Based on Evaluation or Award
If the protest challenges how offers were evaluated or awarded:
Only offerors who actually submitted a proposal may file.
The protest must be received within seven days after the offeror knew — or should have known — the basis for the protest.
Offerors are deemed to have knowledge of a potential basis for protest on the earliest of the following:
Public bid opening
Receipt of a notice of unsuccessful offer
Recommendation of the contract for board approval
Public posting of the contract award
Protest Requirements: Content Matters
To be considered, a protest must include:
Protester’s name, address, phone number, and email
The solicitation number
A demonstration of the protester’s legitimate interest in the procurement
A detailed basis for the protest, with specific allegations and references to errors or legal violations
Evidence that the protest is timely
The signature of a person authorized to file on behalf of the protester
Importantly, preemptive protests — those filed speculatively before a basis is confirmed — may be denied outright.
Protest Bonds
In certain solicitations, MWAA may require a protest bond to deter frivolous protests. If a bond is required, this will be clearly stated in the solicitation, along with bond amount and format. Failing to submit the required bond will generally result in automatic rejection of the protest, regardless of its merits.
Decision Timeline and Review Process
MWAA strives to handle protests efficiently:
The vice president, OSCM will attempt to respond within seven business days of receipt.
If additional time is needed, the protester will be notified within the same seven-day window.
Only substantiated allegations will be reviewed. Vague or unsupported protests will be denied.
Appealing a Protest Decision
If unsatisfied with the vice president’s decision, the protester may appeal:
To the CEO – within seven days of the OSCM decision letter
To the board – if the contract required board approval, an additional appeal may be made within seven days of the CEO’s decision
For contracts not requiring board approval, the CEO’s decision is final.
Contract Awards During a Protest
If a protest is filed before contract award, MWAA will not proceed with award or issue a notice to proceed while the protest is pending — unless the CEO determines that moving forward is in the MWAA’s best interest.
Conclusion
Navigating the MWAA’s bid protest process demands strict compliance with procedural and timing requirements. Contractors must act quickly, follow detailed filing instructions, and ensure their protest is fully supported. Understanding these rules can make the difference between a timely, considered protest and one that is dismissed without review.
Listen to this post
Course Correction: Supreme Court Steers Toward Greater Predictability in NEPA Reviews
On 29 May 2025, the Supreme Court unanimously declared that a “course correction” was needed for cases under the National Environmental Policy Act (NEPA), holding that a law originally meant to be a procedural check to inform agency decision making has instead grown to paralyze it. Seven County Infrastructure Coalition v. Eagle County reversed a D.C. Circuit ruling that an agency had not done enough in its environmental impact statement (EIS) to review the potential upstream and downstream effects of a proposed railroad line. The Court roundly rejected judicial nitpicking of agency environmental reviews. The Court concluded that agencies are the factual experts when making determinations about environmental impacts, and therefore, should be afforded substantial deference by reviewing courts. Seeking to further streamline the process, the Court signaled that future NEPA actions should be narrower in scope, more concise, and take less time. This change in course will likely result in greater predictability for agencies and developers about the adequacy of NEPA reviews.
NEPA Is Not Meant to Be a “Substantive Roadblock”
When the federal government approves the development of an infrastructure project, NEPA obligates the relevant agency to complete an environmental review, such as an EIS, to identify significant environmental effects of the project and feasible alternatives to mitigate those effects. The purpose of a NEPA review is to inform agencies and the public about possible environmental consequences of a federal decision. In Seven County, the Court reinforced the principle that NEPA is a procedural cross-check, not a substantive roadblock, intended to inform agency decision making, not to paralyze it.
In 2020, the Seven County Infrastructure Coalition applied to the US Surface Transportation Board (the Board) for approval of an 88-mile railroad line connecting an oil-rich area of Utah to the national freight rail network to allow transportation of crude oil to refineries along the Gulf Coast. As part of its NEPA review, the Board prepared a 3,600-page EIS that noted—but did not fully analyze—the environmental effects of foreseeable increases in upstream oil drilling in Utah and downstream refining of crude oil in the Gulf. The Board approved the railroad line, but the adequacy of its NEPA review was challenged by a county and several environmental groups. The D.C. Circuit agreed with those challengers, finding that the Board should have more extensively considered the indirect upstream and downstream effects in its EIS and vacating the Board’s approval of the railroad line.
In an 8-0 decision, the Court reversed. Justice Brett Kavanaugh, writing for five of the justices, seized the opportunity to recalibrate expectations around NEPA review, explaining that NEPA requires a process for an agency’s environmental review, but it does not dictate the ultimate outcome. There are other “substantive” statutes (such as the Clean Air Act and Clean Water Act) that set emissions and effluent limitations and the like, but NEPA is not one of those statutes. Accordingly, the Court reemphasized that “review of an agency’s EIS is not the same thing as review of the agency’s final decision concerning the project.” And it stressed the need for deference to agency determinations at every level of the process—from assessing the significance of environmental effects, to considering feasible alternatives, to deciding what impacts to review.
As part of its level-setting endeavor, the Court pointed to the 2023 NEPA amendments that were part of the Building US Infrastructure through Limited Delays & Efficient Reviews Act (BUILDER Act), where Congress prohibited agencies’ EISs from “going on endlessly” and imposed 150-page limits and two-year deadlines for EISs.
An Agency’s NEPA Review Should Be Limited to the Project at Hand
As to the narrow question before it, the Court concluded that the Board did not have to consider upstream and downstream environmental effects that were “separate in time or place” from the railway project.
The Court noted that while indirect environmental effects of the project itself may fall within NEPA’s scope (even if they might extend outside the geographical territory of the project or materialize later in time), the fact that the project might foreseeably lead to the construction or increased use of a separate project does not mean the agency must consider that separate project’s environmental effects. In other words, “the separate project breaks the chain of proximate causation between the project at hand and the environmental effects of the separate project.” This is particularly true where those separate projects fall outside of the agency’s authority, as was the case for the Board, which did not have jurisdiction over upstream oil drilling or downstream oil refineries.
Justice Sonia Sotomayor, along with Justices Elena Kagan and Ketanji Brown Jackson, concurred in the judgment, noting that the majority opinion could have reached the same result without “unnecessarily grounding its analysis largely in matters of policy.” But they too agreed that the D.C. Circuit had gone too far in imposing NEPA duties on agencies.
Courts Must Afford Agencies “Substantial Deference” in NEPA Review
Emphasizing the limited role of judicial review in NEPA cases, the Court explained that judges should afford “substantial judicial deference” to agencies in NEPA cases. The Court contrasted its decision in Loper Bright Enterprises v. Raimondo,1 where no deference is owed to agencies’ legal determinations, with the highly factual issues that are at play in an EIS. These include whether a particular explanation in an EIS is detailed enough, the likely impacts of a project, whether those impacts are “significant,” and what alternatives are really feasible. Such choices should not be micromanaged by the courts, so long as they fall within the zone of reasonableness.
Key Takeaways
Going forward, project developers may expect to see:
Shorter and More Concise NEPA Reviews
Agencies, particularly prompted by various Administration priorities, may begin to conduct shorter NEPA reviews, consistent with Congress’ 2023 NEPA amendments.
Narrower Focus for EISs
Given the Court’s clear direction that judges should defer to the agencies’ decisions about where to draw the line when considering indirect environmental effects, some agencies may streamline the focus of their EISs.
Increased Deference by Courts to Agency NEPA Reviews
The “only role” for a court in an action regarding a deficient EIS is to confirm that the agency has addressed environmental consequences and feasible alternatives to the relevant project.
Fewer Agency Authorizations Being Vacated on the Basis of an Inadequate EIS
The Court stressed that the “ultimate question” under NEPA is not whether an EIS is inadequate in and of itself, but whether the agency’s final decision is “reasonable and reasonably explained.” Because an EIS is only one component of that analysis, a deficient EIS will not automatically require vacatur of the project’s approval.
Looking Ahead
The Court has now joined the chorus of criticisms directed at interminable NEPA reviews, with all three branches of government in alignment that the old mode of NEPA must go. Although Congress already sought to streamline the EIS process through the BUILDER Act, given the lag between agency processes and judicial review, the lower courts have yet to internalize what it may mean to review a 150-page EIS conducted in less than two years. This decision also comes at a time when the Administration is seeking to accelerate permitting procedures for domestic energy projects and retooling its NEPA regulations.2 Given these shifts, the rigor of judicial scrutiny of such EISs may need to be adjusted. Seven County gives lower courts the leeway they need to make that shift—indeed, it seems to demand it.
Footnotes
1 603 U.S. 369 (2024).
2 See Press Release, U.S. Dep’t of the Interior, Department of the Interior Implements Emergency Permitting Procedures to Strengthen Domestic Energy Supply (Apr. 23, 2025), https://www.doi.gov/pressreleases/department-interior-implements-emergency-permitting-procedures-strengthen-domestic.
Court of International Trade Sets Aside Presidential IEEPA Tariffs and Federal Circuit Postpones Nationwide Injunction
A three-judge panel of the United States Court of International Trade (“CIT”) issued a landmark decision on May 28, 2025, in V.O.S. Selections, Inc. v. United States,[1] concluding that tariffs imposed by the President under the International Emergency Economic Powers Act (“IEEPA”) exceeded the President’s statutory authority. The court vacated the challenged tariff orders and permanently enjoined their operation nationwide. However, the U.S. Court of Appeals for the Federal Circuit less than twenty-four hours later temporarily stayed the lower court’s order, pending a decision on a more permanent stay until all appeals conclude. Accordingly, the President’s tariffs are presently preserved, as the lower court’s decision has been stayed. A second decision by the D.C. District Court, a different federal court, also held the President’s IEEPA tariffs are beyond the scope of the statute and imposed a more limited injunction for two parties.[2]
These rulings do not affect other tariff measures taken by the Trump Administration, such as section 232 duties against steel and aluminum, and automobiles.
Background
Since January 2025, the President has declared several national emergencies and imposed a range of tariffs on imports from its trading partners. These included:
Worldwide and retaliatory tariffs consisting of a rate of 10 percent on all imports from all U.S. trading partners, with higher rates for certain countries, as a response to persistent U.S. trade deficits and alleged unfair trade practices.
Country-specific tariffs consisting of a 25 percent duty on Canadian and Mexican products (10 percent on Canadian oil and potash) and a 20 percent duty on Chinese products. These were implemented to address declared threats “to the safety and security of Americans, including the public health crisis of deaths due to the use of fentanyl and other illicit drugs” from international cartels, drug trafficking, and related criminal activity.
Multiple states and businesses challenged these tariffs, arguing that the President had exceeded his authority granted by IEEPA and that the actions violated important constitutional principles.
Key Legal Findings
The CIT held that IEEPA does not grant the President unlimited tariff authority. While the statute allows the President to “regulate . . . importation” in response to an “unusual and extraordinary threat” following a declared national emergency, the court held that this language does not authorize the imposition of unbounded tariffs. The court emphasized that any delegation of tariff authority to the President must be clearly limited and guided by an “intelligible principle” to avoid violating the separation of powers. The court also explained that the current tariffs are distinguishable from prior, more limited uses of emergency powers, noting that the challenged tariffs lacked meaningful limitations in scope or duration, effectively entailing unlimited Presidential authority.
The court held that the worldwide and retaliatory tariffs were unbounded by any limitation in duration or scope and, accordingly, ultra vires and contrary to law.
It also held that the country-specific tariffs failed to comply with IEEPA because the statute requires that emergency powers be exercised only to “deal with an unusual and extraordinary threat” and there is no direct connection between the tariffs and the stated threat. Rather, the tariffs were used as leverage in negotiating a solution, which the statute does not contemplate.
The D.C. District Court found that IEEPA does not support the President’s tariffs, and the implementing agency violated the Administrative Procedure Act, but declined to reach arguments specific to the President’s tariffs and IEEPA. It remains to be seen which court will ultimately have jurisdiction, as both have held that they do.
Pending Relief
Though the CIT vacated the President’s tariff orders and permanently enjoined their enforcement nationwide, the Federal Circuit’s administrative stay, pending resolution of the government’s motion to stay pending appeal, postpones the lower courts actions. The tariffs, accordingly, remain in effect for the moment. If implemented, the CIT’s decision would have far-reaching consequences for anyone dealing with merchandise exported into the United States. Practically speaking:
All tariffs imposed under the challenged executive orders would be set aside, and importers would no longer be subject to the additional duties previously in effect under these orders.
The decision indicates that the President’s authority to impose tariffs under IEEPA is not open-ended and must be exercised within clear statutory and constitutional boundaries.
The decision also signals that future attempts to use IEEPA to impose broad tariffs—especially in response to trade deficits or as general leverage—will likely face significant judicial scrutiny.
Next Steps and Key Takeaways
In addition to the Federal Circuit’s quick action to administratively stay the CIT’s order, the government has already appealed the CIT’s decision. Given the fluidity of the current situation, importers and affected parties should monitor developments closely and consult with counsel regarding the status of the ongoing litigation and any duties paid under the relevant tariffs and potential refund procedures. It is also important to recognize that IEEPA is not the sole mechanism available to the Trump Administration for imposing tariffs. Tariffs implemented on steel, aluminum, autos, and potentially future products under “Section 232” investigations are not covered by this decision.
Despite the superior court’s stay, the lower courts’ decisions mark a significant statement of congressional control over tariff policy and, until the appellate courts decide, a limitation on the use of IEEPA to regulate importation.
[1] https://www.cit.uscourts.gov/sites/cit/files/25-66.pdf
[2] https://www.courthousenews.com/wp-content/uploads/2025/05/contreras-blocks-certain-trump-tariffs.pdf
Landmark Supreme Court Decision Limits NEPA Review Scope: Agencies Granted ‘Substantial Deference’ in Environmental Assessments
In an 8-0 decision, the U.S. Supreme Court reversed a D.C. Circuit ruling that had blocked construction of a new 88-mile freight railroad line, clarifying the scope of impacts that federal agencies must consider under the National Environmental Policy Act (NEPA). The Court’s majority opinion in Seven County Infrastructure Coalition v. Eagle County, No. 23-975 (May 29, 2025) is a sharp rebuke to what the Court describes as the aggressive interference by certain federal lower courts with the exercise of agency discretion in determining the scope of a NEPA review, a practice the Court found contrary to the intent of NEPA as a “purely procedural statute” designed to assist in agency decision making.
Background
The Uinta Basin Railway is a proposed 88-mile freight rail line intended to connect Utah’s Uinta Basin oil production to the national rail network. In 2020, the Seven County Infrastructure Coalition applied to the U.S. Surface Transportation Board (STB) for construction approval under 49 U.S.C. § 10901.
Pursuant to NEPA, the STB prepared a comprehensive Environmental Impact Statement (EIS), analyzing thousands of pages of potential environmental effects tied to the railway’s construction and operation. The EIS noted, but did not fully assess, potential upstream effects from increased oil drilling in the Uinta Basin and downstream impacts from oil refining along the Gulf Coast. In December 2021, the STB approved construction of the line, citing its economic and transportation benefits.
Eagle County, Colorado and several environmental organizations challenged the approval. The U.S. Court of Appeals for the D.C. Circuit ultimately vacated the STB’s decision authorizing the line’s construction, as well as the associated EIS and biological opinion.1 The D.C. Circuit held that the STB violated NEPA by failing to analyze foreseeable indirect environmental effects of increased fossil fuel development tied to authorizing and operating the line.
The Supreme Court’s Decision
Justice Kavanaugh authored the majority opinion for the Court, joined by Justices Roberts, Alito, Thomas, and Barrett. Justice Sotomayor filed a concurring opinion, joined by Justices Kagan and Jackson. Justice Gorsuch did not take part in the case.
The Court held that the D.C. Circuit erred in two fundamental respects:
1.
Failing to grant proper judicial deference to the STB’s judgment regarding the scope of the EIS.2
2.
Misinterpreting NEPA’s scope by requiring the STB to assess indirect effects of third-party oil and gas development and refining not caused by the project at issue.3
In an introductory discussion, Justice Kavanaugh briefly recounted the history of NEPA’s interpretation by courts and noted that “some courts have assumed an aggressive role in policing agency compliance with NEPA,” while others take a more “restrained” approach.4 Offering a corrective to “continuing confusion and disagreement” among federal courts, the opinion comes down decidedly on the side of judicial restraint. It “reiterate[s] and clarif[ies] the fundamental principles” of NEPA judicial review, including that NEPA is a purely procedural statute that grants broad discretion to agencies, and courts should not interfere if agency decision making falls within “a broad zone of reasonableness.”
Justice Kavanaugh emphasized that NEPA “does not mandate particular results” and, unlike other federal environmental statutes, does not impose any “substantive constraints” on the agency’s decision about a project. Agencies must take a “hard look” at the environmental consequences of their actions in the context of projects under consideration, but they are not required to assess indirect effects of separate federal, state, or private projects, even if the action under review might facilitate those projects.5 Making this scoping determination about indirect effects is clearly within the discretion of the agency preparing the NEPA document, and courts should honor it if it is “reasonable” and “reasonably explained.”6 Further, and of importance to NEPA jurisprudence, the Court instructed that “the adequacy of an EIS is relevant only to the question of whether an agency’s final decision … was reasonably explained.”7
Focusing on the question at issue – whether impacts of potential separate projects upstream and downstream of the proposed railroad must be evaluated in the EIS – the Court criticized the D.C. Circuit’s legal conclusion requiring inclusion of such projects in the EIS analysis. The Court reasoned that the STB had no decision-making or regulatory authority over such projects, and concluded that a separate project “breaks the chain of proximate causation.”8 Crucially, the Court stated that an agency’s determination of project scope–including whether a particular impact is the result of the action itself or of a separate project–is entitled to substantial deference, provided the agency offers a reasoned explanation.9 But the decision goes further, concluding that NEPA’s requirement to consider reasonably foreseeable impacts does not, as a matter of law, require agencies to include the indirect impacts of separate projects for which the lead agency plays no role in an EIS.
Justice Sotomayor’s concurrence emphasized that the majority reasoning should not be used to sidestep meaningful environmental review.10 The concurring opinion agreed with the outcome but emphasized the need for vigilance in ensuring agencies do not avoid meaningful environmental review through overly narrow interpretations of project scope or causation.
GT Insights
The decision is a win for project sponsors–including developers of infrastructure, housing, renewable energy, and industrial facilities–because it narrows the circumstances under which federal agencies must evaluate indirect adverse impacts of a project undergoing NEPA review. The Court reaffirmed that NEPA imposes procedural obligations only; agencies must take a “hard look” at environmental effects, but they are not required to engage in speculative or limitless analysis of impacts from separate projects.11
Much of the decision is a general discussion – citing the Court’s precedents – about the broad discretion agencies enjoy under NEPA and the requirement of judicial deference to that discretion. While some of this language may be dicta, it nonetheless has importance to lower court judges, agencies, and project proponents because it signals that the Court believes that the time and effort spent by agencies in preparing comprehensive NEPA reviews has gone beyond the statute’s intent at the expense of new infrastructure projects. Particularly relevant is the Court’s observation that “intrusive (and unpredictable)” reviews by lower courts “have slowed down or blocked many projects and, in turn, caused litigation-averse agencies to take ever more time and to prepare ever longer EISs for future projects.” The decision at multiple points expresses disapproval of the use of NEPA to delay or block projects that “otherwise comply with all relevant substantive environmental laws,” leading to “fewer and more expensive railroads, airports, wind turbines, transmission lines, dams, housing developments, highways, bridges, subways, stadiums, arenas, data centers, and the like.”
The decision, however, also emphasizes that the substantial deference that courts should afford agency NEPA determinations in no way should be viewed as inconsistent with its recent decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which eliminated Chevron deference. The Court distinguished between Chevron deference to agency interpretations of statutory language with agencies’ exercise of discretion expressly granted to them by NEPA. The Court found that agency determinations as to the scope and detail of a NEPA review are not statutory interpretations, but rather fact-intensive endeavors to which courts must defer unless the decisions issued in connection with such review violate the Administrative Procedure Act’s “arbitrary and capricious” standard.
The Court explicitly noted that omissions in an EIS are not automatically fatal to an agency approval. So long as the agency provides a rational explanation for its ultimate decision, including decisions about what need not be considered in a NEPA review, courts may not substitute their judgment for that of the agency.12 Also, echoing arguments of some NEPA reform advocates, the Court introduced a new concept that EIS deficiencies need not always result in vacatur, “absent a reason to believe that the agency might disapprove the project if it added more to the EIS.”13
The Court pointed to a broader concern: NEPA litigation has increasingly been used to block or delay projects, resulting in more litigation and fewer projects. The decision may therefore provide needed guardrails for agencies and developers, reducing litigation risk stemming from speculative or tangential environmental claims.14
Seven County stands as a declaration by the U.S. Supreme Court that lower courts should not allow litigants to use the strictly procedural requirements of NEPA in a manner that unnecessarily delays or blocks infrastructure projects approved by federal agencies. It remains to be seen the extent to which the lower courts and federal agencies that grapple with future controversial projects will take that declaration to heart.
1 See Eagle County v. Surface Transp. Bd., 60 F.4th 828 (D.C. Cir. 2023)
2Slip op. at 9, 21.
3 Id. at 6-9, 19-21.
4 Id. at 8.
5 Id. at 20-21.
6 Id. at 9.
7 Id.
8 Id.at 16-17.
9 Id. at 21.
10 Id., Sotomayor, J., concurring at 1-2.
11 Id. at 6-7.
12 Id. at 9.
13 Id. at 14.14 Id. at 23.
Additional Authors: Courtney M. Shephard, Eric Waeckerlin, and Jenna Rackerby
Oregon Expands Consumer Privacy Law to Include Auto Manufacturers—and Possibly Their Dealerships
“Our cars know how fast you’re driving, where you’re going, how long you stay there. They know where we work, they know whether we stop for a drink on the way home, whether we worship on the weekends, and what we do on our lunch hours.” OR Representative David Gomberg
The Oregon Legislature recently enacted House Bill 3875, amending the Oregon Consumer Privacy Act (OCPA) effective September 28. 2025, to broaden its scope to include motor vehicle manufacturers and their affiliates that control or process personal data from a consumer’s use of a vehicle or its components.
While this expansion is clear in its application to vehicle manufacturers, it raises important questions for automobile dealerships, particularly those “affiliated”—formally or informally—with manufacturers. Dealerships should consider whether they may now be subject to the full scope of Oregon’s privacy law. Of course, they may be subject directly to the OCPA in their own right.
The Amendment: HB 3875
HB 3875 modifies ORS 646A.572 to extend the OCPA’s privacy obligations to:
“A motor vehicle manufacturer or an affiliate of the motor vehicle manufacturer that controls or processes personal data obtained from a consumer’s use of a motor vehicle or a vehicle’s technologies or components.”
Who Counts as an “Affiliate”?
To determine whether a dealership is subject to these new obligations, one must examine the OCPA’s definition of affiliate:
“Affiliate” means a person that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with another person such that:
(a) The person owns or has the power to vote more than 50 percent of the outstanding shares of any voting class of the other person’s securities;
(b) The person has the power to elect or influence the election of a majority of the directors, members or managers of the other person;
(c) The person has the power to direct the management of another person; or
(d) The person is subject to another person’s exercise of the powers described in paragraph (a), (b) or (c) of this subsection.
This definition introduces some ambiguity for dealerships. Many dealerships operate as independent businesses, even if they sell only one manufacturer’s vehicles and display that brand prominently. While they may be contractually tied to a manufacturer, they may not meet the legal standard of being controlled by or under common control with that manufacturer as described in the definition.
However, certain dealership groups—particularly those owned or operated by manufacturers or holding companies—may clearly fall within the definition of “affiliate.”
Dealerships should evaluate their corporate structure and agreements with manufacturers to determine whether this definition might apply to them.
Why This Matters
Entities subject to the OCPA must comply with a range of privacy requirements, including:
Providing transparent privacy notices
Obtaining consumer consent for data collection and sharing under certain circumstances
Offering consumer rights such as access, correction, deletion, and data portability
Implementing reasonable data security measures
These obligations extend to any personal data collected through vehicle technologies, such as navigation systems, driver behavior analytics, location data, and mobile app integrations.
Federal Context: FTC Enforcement
Dealerships should also remain aware of federal obligations. Under the Gramm-Leach-Bliley Act (GLBA), auto dealers engaged in leasing or financing must follow privacy and safeguard rules enforced by the Federal Trade Commission (FTC).
The FTC has published detailed guidance for auto dealers, including:
FAQs on the Privacy Rule for Auto Dealers
Safeguards Rule updates for information security programs
What Dealerships Should Do Now
Even if a dealership is not legally an “affiliate” under the OCPA or subject to a similar state comprehensive privacy law, the trend toward regulating vehicle-generated data suggests it’s time to proactively review data practices. Dealerships should:
Conduct a data inventory to identify what personal data is collected, especially from connected vehicle systems.
Update privacy notices and practices in accordance with state and federal law.
Review contracts with manufacturers and vendors for data-sharing provisions and compliance obligations.
Train staff on new privacy responsibilities and how to respond to consumer data requests.
Supreme Court Restores Agency Deference In NEPA Reviews
On May 29, 2025, the United States Supreme Court issued an 8-0 opinion in Seven County Infrastructure Coalition, et al. v. Eagle County, Colorado, et al. that affirmed agency deference in review of environmental documents prepared under the National Environmental Policy Act (NEPA).[1] This important decision will bring much-needed certainty for project developers and financing agencies that should reduce permitting obstacles resulting in greater time and cost savings to developers.
In approving an 88-mile railroad line in northeastern Utah, the Surface Transportation Board prepared a comprehensive Environmental Impact Statement (EIS) consisting of more than 3,600 pages and analyzing impacts to local wetlands, land use, and recreation. The EIS declined to analyze the potential effects of upstream oil and gas drilling or downstream oil refining as outside the Surface Transportation Board’s jurisdiction. On appeal, the D.C. Circuit vacated the approval of the railroad line, finding that the Surface Transportation Board failed to take the requisite “hard look” at all of the environmental impacts of the railway line as it impermissibly limited its analysis of upstream and downstream projects.[2]
The Supreme Court reversed the judgment of the D.C. Circuit and held that the Surface Transportation Board appropriately reviewed the environmental effects of the proposed railroad line under NEPA. The Court affirmed a number of important aspects of judicial review under NEPA:
NEPA is a procedural statute and simply prescribes the necessary process for an agency’s environmental review of a project;
Under NEPA, an agency’s only obligation is to prepare an adequate report and NEPA imposes no substantive constraints on the agency’s ultimate decision to approve a project;
A court’s review must be at its “most deferential” when reviewing the sufficiency of an agency’s analysis of project alternatives and environmental impacts; and
Agencies retain discretion to determine where to draw the line with respect to indirect impacts.
In recent years, courts have “strayed and not applied NEPA with the level of deference demanded by the statutory text” and have “engaged in overly intrusive (and unpredictable) review in NEPA cases.”[3] The Court correctly notes that these court decisions “have slowed down or blocked many projects and, in turn, caused litigation-averse agencies to take ever more time and to prepare ever longer EISs for future projects.”[4]
Energy infrastructure project developers have long faced substantial uncertainty with respect to court review of agency NEPA actions. Project costs have skyrocketed as opponents have weaponized NEPA to block the development of essential energy infrastructure. Today’s Supreme Court decision is a welcome and overdue affirmation of agency discretion.
Footnotes
[1] Seven Cty. Infrastructure Coalition, et al. v. Eagle Cty., Co., et al., No. 23-975 (May 29, 2025).
[2] Eagle Cty. v. Surface Transp. Bd., 82 F.4th 1152, 1196 (2023).
[3] Opinion at 12.
[4] Id.
Listen to this post
Executive Use of Corporate Aircraft: Navigating Tax, SEC Disclosure and Other Key Considerations
Companies are increasingly allowing their chief executive officers and, in certain circumstances, other executives to use corporate jets (which may be chartered flights or fractionally or fully owned aircraft) for personal use due to various reasons. Although this benefit may be a relatively small percentage of an executive’s overall compensation package, it is still likely significant to the executive and may assist companies in attracting and retaining top talent. Further, commercial travel can pose security risks for high-profile executives; some companies permit these executives to use corporate jets due to safety and privacy concerns. Lastly, flying private may allow executives to save time and work more productively while traveling. For example, while traveling for personal reasons, executives may be able to conduct meetings and attend to any pressing business matters that arise mid-flight.
Despite these benefits, executive use of corporate jets may have complex implications, including tax consequences, SEC disclosure (publicly traded companies only) and other key considerations. As discussed in a separate Proskauer blog post, the IRS also recently announced a new audit campaign targeting the use of corporate jets, although it is unclear whether this will remain a focus of the new administration.
Tax Considerations for Private and Public Companies
Private and public companies, including private equity sponsors and other investment managers, and their employees must consider the tax consequences of allowing an executive or investment professional to use corporate jets for personal use. Specifically, under IRS rules, the value of an executive’s personal use of a corporate aircraft is treated as imputed income to the executive and is taxable compensation, subject to tax reporting and withholding. The most common method for calculating the value of the imputed income is by using the Standard Industry Fare Level (SIFL) method, which is based, among other things, on the distance flown, aircraft weight and number of passengers on a private jet. The value calculated under the SIFL method is reported as W-2 income to the executive and is subject to payroll taxes, although this amount is often significantly less than the fair market value of the benefits provided to the executive or the actual cost to the company of operating the jet. Additionally, although an employer’s cost of operating a non-commercial aircraft is generally deductible as an ordinary business expense, employers may not be able to deduct any entertainment expenses associated with personal travel under the Tax Cuts and Jobs Act (TCJA).
In order to determine the potential tax consequences of allowing an executive to use a corporate jet for personal use, companies must separately evaluate whether each passenger on a corporate jet is flying for a valid business purpose (e.g., while an executive may have a valid business purpose for flying on a corporate jet, the executive’s spouse may be traveling for entertainment in certain circumstances). If certain passengers (but not others) are traveling for entertainment, the portion of flight expenses allocated to those guests traveling for entertainment may be considered a taxable fringe benefit to the executive hosting the guests and, as an entertainment-related expense, may not be deductible to the employer under the TCJA. Importantly, these tax implications would apply even if a corporate jet has empty seats available for use at no additional cost.
SEC Disclosure Obligations for Public Companies
In addition to the foregoing tax implications, with respect to public companies only, personal use of company aircraft by the company’s named executive officers (NEOs) must also be disclosed in the company’s proxy statement under SEC rules. In particular, Item 402 of Regulation S-K requires disclosure of perquisites and other personal benefits if the total value exceeds $10,000 in a fiscal year. Importantly, the incremental cost to the company of providing this benefit, and not the value imputed to the executive, is used for purposes of this disclosure. As a result, this disclosure typically includes the cost of fuel, maintenance of the aircraft, crew costs, landing fees and in-flight catering and services, although fixed costs like the depreciation of the aircraft or any base salaries paid to staff generally are not required to be disclosed unless these costs are increased due to the executive’s personal use. In addition, if any single perk exceeds the greater of $25,000 or 10% of total perks, its specific value must be itemized, which may result in increased scrutiny from investors and regulators.
Other Key Considerations
In addition to the tax and SEC disclosure considerations, other key considerations should be analyzed. For example, internal policies and recordkeeping procedures should be established and monitored and, from a corporate governance perspective, appropriate approvals from the board or its committees (e.g., audit or compensation) should be obtained. Once approved, periodic reporting and monitoring may be advisable. Further, other regulatory considerations should be reviewed, particularly, where corporate-owned aircraft is used (e.g., FAA rules).
Proskauer Perspectives
Given these considerations, companies that permit executives to use their private aircraft should carefully track and retain information relating to their use. It is also best practice for companies to establish clear policies and guidelines regarding using aircraft for personal travel, including the process for obtaining pre-approval for any personal use. A company’s finance, tax, legal and human resources functions should also coordinate to ensure an executive’s imputed income is correctly tracked and reported and any personal use by an executive is properly disclosed in accordance with the SEC disclosure rules. Companies may also consider requiring executives to reimburse them for the costs associated with any personal use, which may mitigate some of the issues discussed in this blog post.
Although allowing executives to use a company’s private aircraft can be an attractive benefit for executives, businesses should proactively manage any associated tax, governance and operational issues and, for public companies, SEC disclosure obligations as well. By addressing these issues in a thoughtful and comprehensive manner, companies can support their management team by avoiding unnecessary surprise tax consequences and also reinforce investor confidence through consistent governance practices that contribute to long-term corporate stability and trust.
Autonomy On Hold: Nevada Senate Bill SB395 Seeks to Hit the Brakes on Fully Driverless Vehicles
Nevada has long been at the forefront of autonomous vehicle (AV) technology, with the state boldly moving toward fully driverless cars as a normal part of its infrastructure. However, as AV technology continues to advance and increase the number of vehicles on its roads, public policy, regulatory, and safety concerns have come into play. Senate Bill 395 (SB395), introduced in the 2025 legislative session, seeks to correct these issues by modifying major provisions for the operation of autonomous vehicles in Nevada.
SB395 will change the operation of autonomous vehicles from state to state. At present, completely autonomous vehicles may be driven without a human driver present, provided certain conditions are satisfied. SB395 would, however, regulate these autonomous cars by placing further operating restrictions on them and altering the need for human presence to drive them. This is primarily due to the growing concern about AV safety and preparedness to support advanced real-world driving conditions.
Key Provisions of SB395:
Human Operator Requirements – The most significant alteration in SB395 is the need for a human operator to be on board in fully autonomous vehicles—at least in the short run—until the technology is proven to be completely safe and reliable. This requirement is intended to provide an immediate human intervention in the event of unforeseen circumstances or system failure.
Increased Safety Standards – The legislation demands increased safety standards in autonomous vehicles, such as the creation of new testing procedures to assess the actions of cars in challenging driving circumstances, and enhanced manufacturer standards to prove their vehicles can navigate all kinds of road conditions in a safe and secure manner.
Insurance and Liability Adjustments – SB395 would also mandate car manufacturers to maintain certain types of insurance to protect against the risk of damages caused by AV-related accidents. This could include greater liability coverage because self-driving cars bring about new risks.
Data and Reporting Mandates – The bill would demand more data gathering and reporting requirements on autonomous car manufacturers. This would allow regulators in the state to track the performance and safety record of AVs, ensuring that the technology is responsibly developed.
Potential Benefits of SB395:
Enhanced Safety: By requiring the presence of human drivers and imposing stricter safety regulations, SB395 could also end accidents caused by technical malfunctions or unforeseen incidents. The bill addresses the problems caused by accidents in which AVs have not functioned as they ought to during emergency situations where a safety device is most needed to protect the public.
Public Trust in Autonomous Vehicles: While driverless vehicles are said to revolutionize transportation, most of the public is suspicious of their safety. By establishing SB395 into law, the Nevada legislature believes it will build trust with AV technology through the implementation of human oversight and other safeguards.
Long-term Industry Growth: Through the enactment of legislation that allows for the phased introduction of fully autonomous vehicles, SB395 provides a pathway for the AV industry to grow in a sustainable and managed manner. The bill ensures that autonomous vehicles can be tested and deployed safely while also encouraging innovation within the industry.
Challenges and Potential Drawbacks:
Impact on Industry – Nevada has led the way in regulating autonomous vehicle testing, and some argue that imposing further limitations would weaken the state’s proactive stance. Further human oversight and rigorous regulation could stifle the growth of autonomous vehicles, making them slower.
Economic and Operating Costs – Deployment of SB395 would also bring added costs for operators and manufacturers, who would be forced to pay more for additional tests, insurance, and meeting new regulations. These charges can be levied on the masses, thus slowing down the universal deployment of autonomous cars.
Looking Ahead: The Future of Autonomous Vehicles in Nevada
As autonomous vehicle technology continues to develop, Nevada’s role as a testing ground for AVs remains significant. SB395 is a major move toward balancing the potential of innovation with the need for public safety and regulatory oversight. While it may slow the roll-out of fully autonomous vehicles, it sets the stage for an era where autonomous vehicles can integrate into society more safely and responsibly.
As autonomous vehicle laws continue to evolve, working with a knowledgeable car accident lawyer can help individuals understand how new regulations like SB395 might impact accident liability and insurance issues.
The result of SB395 will have implications far beyond Nevada, establishing a precedent for other states contemplating similar legislation for self-driving cars. It will also affect manufacturers’ strategy regarding safety, insurance, and the introduction of fully autonomous technology in the next few years.
Endnotes:
Nevada Legislature. Senate Bill 395 – 83rd Session (2025). Retrieved from: leg.state.nv.us ↩
National Highway Traffic Safety Administration. “Automated Vehicles for Safety.” Accessed 2024. ↩
Insurance Information Institute. “The Future of Insurance in Autonomous Vehicles.” 2023. ↩
American Automobile Association (AAA). “Public Opinion on Autonomous Vehicles.” 2023. ↩
U.S. Department of Transportation. “Automated Vehicle Policy.” FMCSA, 2023. ↩
Autonomous Vehicle Industry Association. “Current Safety Protocols for Autonomous Vehicle Testing.” 2022. ↩