News & Analysis as of

Seeking Net Benefits: President Obama Issues New Federal Policy on Addressing and Mitigating Environmental Harm Early in the...

On November 3, 2015, the White House released a Presidential Memorandum intended to encourage federal agencies to consider land use planning more holistically, clearly and consistently, addressing mitigation needs before they...more

Presidential Directive Establishes New Compensatory Mitigation Policy, Expanding Future Costs and Obligations for Federally...

On November 3, 2015, President Obama directed key federal agencies to adopt new or more extensive compensatory mitigation policies over the next six to twenty-four months. Once implemented, these policies could block...more

Coming Soon to a Project Near You: Advance Compensation

Earlier this month, the White House released a Presidential Memorandum on “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.” If that portentous title isn’t enough to make...more

To Mitigate or Not to Mitigate: No Longer a Question for Environmental Reviews?

Even the casual college football observer has probably seen by now the wild final play of the Duke-Miami game on October 31. After the game ended, it was determined that Miami literally stole the win as a result of referee...more

Presidential Memo Imparts “Moral Obligation” on Agencies to Mitigate Impacts of Natural Resource Development

On Tuesday, November 3, the White House released a Presidential Memorandum: “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment” (“Memorandum”). The Memorandum was sent to the...more

Administration Announces New Mitigation Policies

This afternoon, the Administration issued two policies intended to encourage private investment in natural resource conservation and to facilitate application of the mitigation hierarchy—avoiding, minimizing and compensating...more

California Court Holds Pre-Loss Preventative Measures To Avert A Collapse Are Not Covered as Mitigation.

Last week in Grebow v. Mercury Ins. Co., 2015 Cal. App. LEXIS 948, 2015 WL 6166610 (Cal.App., Oct. 26, 2015), a unanimous panel of California’s intermediate level appellate court rejected arguments that expenses incurred to...more

Satisfying State Compensatory Mitigation Requirements Under CEQA On Federal Conservation Lands: CDFW And BLM Agree To Cooperate To...

On October 2, 2015, the Bureau of Land Management (“BLM”) and the California Department of Fish and Wildlife (“CDFW”) entered into a 12-page “agree[ment] to work with each other to conserve biological and natural resources on...more

Land Use & Natural Resources Case Law Update: Third Quarter 2015

The court of appeal upheld the City of Carson’s denial of an application to convert a mobilehome rental park to a subdivision of resident-owned lots. The city’s denial of the application was based on its inconsistency with...more

UK courts get tough on environmental crime: sentencing of environmental offences committed by large companies

There is a widely held belief that environmental laws in the UK are toothless in practice because enforcement authorities are under resourced and typical levels of fines and penalties imposed are far too low. This view...more

Alaska Needs to Drill For More Oil — It’s All the Fault of Climate Change

According to the BBC, Alaska Governor Bill Walker has concluded that more drilling for oil is necessary in order for Alaska to have the funds necessary to pay to mitigate the costs of climate change in Alaska. Such costs...more

Fourth District Addresses CEQA Baseline Issues In Partially Published Opinion Upholding EIR For Carlsbad Shopping Mall Renovation

In an opinion filed September 10, and later ordered partially published on October 9, 2015, the Court of Appeal affirmed the substance of a judgment upholding an EIR for a regional shopping center renovation project in...more

SEP Right for You? EPA Updates its Supplemental Environmental Projects Policy

The U.S. Environmental Protection Agency recently updated its Supplemental Environmental Project (SEP) Policy. Most federal actions for failure to comply with the environmental laws are resolved through settlement...more

Real Estate and Land Use - September 2015 #2

Use It or Lose It: San Clemente Required to Refund $10 Million in Unused Impact Fees: Walker v. City of San Clemente (August 28, 2015, G050552) - Why It Matters: In a strict reading of a local agency’s...more

Recent Changes & Developments Regarding US Department of Defense Foreign Ownership, Control or Influence Mitigation

The Defense Security Service (DSS) has recently undergone several notable staffing changes and announced procedural developments relevant to companies under foreign ownership, control, or influence (FOCI). DSS is the...more

California High Court Humbles Itself Over CEQA Case

The Supreme Court of California recently released its second California Environmental Quality Act decision of 2015, addressing a key issue for state agencies undertaking projects that require off-site environmental...more

Insurance Recovery Law - August 2015 #2

Good News for Corporate Policyholders: Insurer Cannot Refuse Coverage Based on Insured's Assignment of Rights Under Policies After Loss Has Occurred - Why it matters: Reversing its holding in a 2003 case, the Supreme...more

State Agencies Cannot Use State Budgetary Uncertainties to Escape Mitigation Obligations under CEQA

The California Supreme court determined the California State University ("CSU") could not rely solely on earmarked appropriations from the State Legislature for payment of "fair share" mitigation fees the CSU determined...more

UPDATE: CEQA’s Mitigation Requirement: California Supreme Court Agrees With EnviroStructure!

Last February, I wrote about the California State University Board of Trustees’ (CSU) unique stance concerning their responsibilities under the California Environmental Quality Act (CEQA). CSU agrees that like every other...more

Cal State University Cannot Avoid Off-Site Traffic Mitigation Payments Because the Legislature Failed to Approve Funds

City of San Diego v. Board of Trustees of the California State University - Why It Matters: The California Supreme Court has clarified language from its prior decision in City of Marina v. Board of Trustees of California...more

California Supreme Court Holds that State Agencies May Not Escape CEQA Mitigation Requirements Based on Failure of the Legislature...

In a decision that enhances the ability of local interests to obtain mitigation funds from state agencies, the California Supreme Court held that the California Environmental Quality Act ("CEQA") requires the Board of...more

CEQA Alert: California Supreme Court Clarifies Duties of State Agencies in Funding Off-Site Mitigation

On August 3, the California Supreme Court released its second CEQA decision of 2015, addressing a key issue for state agencies undertaking projects that require off-site environmental mitigation. In City of San Diego v. Board...more

State Agencies Cannot Declare Mitigation of Project Impacts Infeasible Based Solely on the Lack of Legislative Appropriations

A public agency may not rely solely on a request to the Legislature to appropriate funding to mitigate a project's adverse environmental impacts and conclude that mitigation is infeasible because the funding cannot be...more

A State Agency’s Duty To Mitigate Significant Environmental Impacts Does Not Depend On A Legislative Appropriation Of Funds For...

The California State University system may not condition its funding of mitigation for off-site impacts of a campus expansion project on receipt of a legislative appropriation earmarked for that purpose, according to a...more

The “Old College Try” Flunks Out: California Supreme Court Holds CEQA Mitigation Obligation For CSU Campus Expansion Projects...

In an August 3, 2015 decision that impacts the California State University’s (CSU) plans to expand its campuses across the state, the California Supreme Court has rejected CSU’s arguments that mitigation of its projects’...more

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