Mitigation

News & Analysis as of

Property Acquisition: Five Signs of Trouble Ahead

As much as public agencies want infrastructure projects to go smoothly, they rarely do. Even when a project is seemingly rolling along through right of way acquisition, there are still hurdles that inevitably impact budgets...more

CIPO shines spotlight on patenting in climate change mitigation technologies

With the Paris climate agreement having recently come into effect, climate change mitigation technologies have been the focus of widespread discussion and debate. The Canadian Intellectual Property Office (CIPO) has added to...more

Is breach mitigation the next wave of cybersecurity regulation?

More and more, regulators are focusing their rulemaking power not just on how a company responds (or doesn’t respond) to a data breach, but the steps it took far in advance to prevent or mitigate such a breach. Two...more

Insurer’s Denial of Mitigation Claim for Extra Costs to Prevent Cancellation of Contract Upheld

Many property insurance policies that provide coverage for business interruption losses also include “extra expense” coverage for reasonable and necessary extra costs to temporarily continue as nearly as possible normal...more

U.S. Fish and Wildlife Service Finalizes ESA Compensatory Mitigation Policy

We reported in our April 2016 edition that the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) had recently updated certain Endangered Species Act (“ESA”) regulations and proposed...more

U.S. Fish & Wildlife Finalizes First-Ever ESA Compensatory Mitigation Policy

On December 27, 2016, the U.S. Fish & Wildlife Service (FWS) issued its final Endangered Species Act (ESA) Compensatory Mitigation Policy (Policy) – the first policy to comprehensively address compensatory mitigation under...more

City Planning Grants Reprieve of New Park Fees to Certain Projects

Back on September 7, 2016, the Los Angeles City Council passed the new Parks Dedication and Fee Update Ordinance (“Quimby”) which will affect all new multi-family development projects in the City. The ordinance will take...more

U.S. Fish and Wildlife Service Announces Changes to Mitigation Policy

On November 21, 2016, the U.S. Fish and Wildlife Service (Service) published the final revisions to its Mitigation Policy. The Mitigation Policy, first published in 1981, guides the Service’s recommendations and requirements...more

Slam Dunked! First District Rejects All CEQA And Land Use Challenges To Golden State Warriors Event Center Project And EIR In...

In a lengthy published opinion filed November 29, 2016, the First District Court of Appeal rejected all legal challenges to the City of San Francisco’s Final Supplemental Environmental Impact Report (FSEIR) and related land...more

Wither Subsequent Review? Supreme Court Again Weighs In On CEQA Subsequent Review Standards Following Negative Declarations –...

On November 22, 2016, the California Supreme Court issued a significant Order granting review in Coastal Hills Rural Preservation v. County of Sonoma (2016) 2 Cal.App.5th 1234, and also transferring the matter back to the...more

Sacramento Residential Infill Project EIR Violated CEQA By Basing Less-Than-Significant Traffic Impact Finding Solely On...

On November 7, 2016, the Third District Court of Appeal filed a published opinion mostly upholding the EIR for a 48.75-acre, 328-unit residential infill project (known as McKinley Village) against various CEQA challenges, and...more

Does a shipowner have to sell its ship in order to mitigate its loss?

The greatly anticipated Supreme Court judgment on the New Flamenco is due to be heard later this year. The decision will address principles of mitigation and the assessment of damages for repudiatory breach of a time...more

Identifying and Mitigating Organizational Conflicts of Interest in Government Contracts Mergers and Acquisitions

An organizational conflict of interest (OCI) arises when the performance of one contract undermines a contractor’s objectivity or creates an unfair competitive advantage with respect to another contract. An agency cannot...more

Sixth Circuit: Substantial Risk of Harm and Mitigation Costs Sufficient to Confer Standing in Data Breach Case

On October 12, 2016, the U.S. Court of Appeals for the Sixth Circuit denied a petition for an en banc rehearing of its September 12 decision in Galaria, et al. v. Nationwide Mutual Insurance Company (Nos. 15-3386/3387). In...more

Supreme Court Addresses CEQA Subsequent Review Rules in San Mateo Gardens Case

The California Supreme Court provided needed clarification to some aspects of the operation of CEQA’s “subsequent review” rules (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162) in its highly anticipated opinion, filed...more

Neither CEQA Administrative Record Preparation Statute nor Case Law Precludes Award of Costs to Prevailing Real Party who...

In the published portion of an opinion filed September 12, 2016, the Fifth District Court of Appeal reversed the trial court’s order taxing costs in the amount of $44,889.71 which were claimed by prevailing real party in...more

U.S. Fish and Wildlife Service Proposes New Mitigation Policy

The United States Fish and Wildlife Service ("USFWS") announced the availability of a new draft policy on compensatory mitigation associated with implementation of the Endangered Species Act ("ESA") (81 Fed. Reg. 61032-61065,...more

Sixth District Rejects SMARA And CEQA Challenges To Permanente Quarry Reclamation Plan Amendment And Related EIR

In a published opinion filed August 31, 2016, the Sixth Appellate District Court of Appeal rejected claims under CEQA and the Surface Mining and Reclamation Act (“SMARA”; Pub. Resources Code, §§ 2700, et seq.), and affirmed...more

First District Applies CEQA’s “Subsequent Review” Rules, Substantial Evidence Standard of Review; Upholds Subsequent Mitigated...

The First District Court of Appeal has issued another published decision applying the “substantial evidence” standard of review to a local agency’s decision not to prepare an EIR for approval of revisions to a project for...more

Sixth District Holds CEQA’s “Fair Argument” Test Inapplicable To City Of San Jose’s Discretionary Determination That 1922 Wooden...

A project that may cause a substantial adverse change in the significance of a “historical resource” may, for that reason, have a significant effect on the environment for purposes of CEQA. (Pub. Resources Code, § 21084.1.)...more

CEQ Issues Final Greenhouse Gas Guidance Directing Federal Agencies to Consider Climate Change in their NEPA Reviews

On August 2, 2016, the White House Council on Environmental Quality (“CEQ”) published a final version of its guidance to federal agencies requiring the consideration of greenhouse gas (“GHG”) emissions and effects on climate...more

State Budget Problems Threatening Public Construction Projects: 5 Key Points to Remember

Over the past year, many states experienced budget crises that threaten public works spending and, in some cases, caused entire project shut downs. In Pennsylvania, a stalemate over the budget for Fiscal Year 2016-2017 lasted...more

Representations & Warranties Insurance: Understanding the Underwriting Process, Timeline, and Key Coverage Terms

The use of representations and warranties insurance is becoming increasingly commonplace in M&A transactions, particularly in competitive auction processes where use of the product has become almost ubiquitous. While much has...more

The Mitigation Fee Act Provides the Sole Means for Challenging Development Impact Fees and Recovering Interest

The Mitigation Fee Act (Government Code § 66000 et seq.) provides the requirements for development impact fee programs. Most of the Act’s provisions were adopted in 1987 as AB 1600 and are sometimes referred to as “AB 1600...more

Don’t Be a Pyrrhus – 5 Steps To Help Avoid Making Your Litigation Victory a Loss

In 279 B.C., King Pyrrhus of Epirus defeated the Roman army at the Battle of Asculum. King Pyrrus was not thrilled about the big win for Team Epirus. The victory was very costly – King Pyrrhus lost most of his army and many...more

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