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David Fotouhi is a partner in the Washington, D.C. office of Gibson, Dunn & Crutcher. He practices in the firm’s Litigation Department and is a member of the firm’s Environmental Litigation and Mass Tort practice group. Mr. Fotouhi joined the firm after nearly four years at the U.S. Environmental Protection Agency (EPA), where he served as Acting General Counsel, Principal Deputy General Counsel, and Deputy General Counsel.
Mr. Fotouhi combines his expertise in administrative and environmental law with his litigation experience and a deep understanding of EPA’s inner workings to represent the firm’s clients in enforcement actions, regulatory challenges, and other environmental litigation. He has provided legal counsel and managed defensive litigation under the Administrative Procedure Act (APA) and every major environmental statute, including the Clean Air Act (CAA), Clean Water Act (CWA), Safe Drinking Water Act (SDWA), Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), Emergency Planning and Community Right-to-Know Act (EPCRA), Oil Pollution Act (OPA), Toxic Substances Control Act (TSCA), Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and Endangered Species Act (ESA).
At EPA, Mr. Fotouhi led an office of 245 attorneys and staff. He played a critical role in developing the litigation strategy to defend the Agency’s actions from judicial challenge, including leading successful efforts to defend EPA’s Risk Evaluation Rule under TSCA, EPA’s decision not to impose Superfund financial assurance requirements on the hardrock mining industry, EPA’s rule postponing compliance dates for the 2015 Effluent Limitations Guidelines for steam electric powerplants under the Clean Water Act, EPA’s 2017 Annual Volumetric Rule under the Clean Air Act’s Renewable Fuels Program, EPA’s Clean Air Act guidance on reclassification of major sources under section 112 of the Clean Air Act, and EPA’s registration decisions under FIFRA for certain pesticides. He also led the EPA team that defended the repeal of the Clean Power Plan (CPP) and promulgation of the Affordable Clean Energy Rule to replace the CPP. In each of these matters, Mr. Fotouhi worked directly with DOJ’s Environment and Natural Resources Division.
Mr. Fotouhi played a crucial leadership role in developing the legal rationales underpinning major EPA regulatory initiatives. He worked directly on EPA’s repeal of the 2015 regulatory definition of “Waters of the United States” under the Clean Water Act and promulgation of a replacement definition, known as the “Navigable Waters Protection Rule.” Due in part to Mr. Fotouhi’s efforts, EPA defeated motions to preliminarily enjoin the rule in the Northern District of California, District of Oregon, and Tenth Circuit Court of Appeals (reversing district court injunction), thus allowing the rule to come into effect nationwide.
Mr. Fotouhi also played a central role in the development of the legal rationale for a number of other agency actions, including:
While at EPA, Mr. Fotouhi worked to develop EPA’s positions in two significant environmental cases heard during the October 2019 Supreme Court term, County of Maui, Hawaii v. Hawaii Wildlife Fund and Atlantic Richfield v. Christian. Mr. Fotouhi also led teams of attorneys supporting DOJ’s Civil Division in defending the United States in significant cases under the Federal Tort Claims Act, including In re FTCA Flint Water Cases (E.D. Mich.) and In re Gold King Mine Release in San Juan County, Colorado on August 5, 2015 (D.N.M.).
Before joining EPA, Mr. Fotouhi practiced in the firm’s Environmental Litigation and Mass Tort practice group. In that role, Mr. Fotouhi was a member of litigation teams on a broad range of environmental matters, including CERCLA cost recovery actions, Clean Air Act enforcement cases, and environmental mass tort litigation in state and federal courts. In addition, Mr. Fotouhi represented clients as part of internal investigations, agency adjudications, and petitions for review of final agency actions.
Prior to entering private practice, Mr. Fotouhi served as a law clerk to the Honorable Raymond W. Gruender of the United States Court of Appeals for the Eighth Circuit. Mr. Fotouhi received a B.A. summa cum laude from Vanderbilt University and a J.D. from Harvard Law School.
Harvard University - 2010 Juris Doctor
Vanderbilt University - 2007 Bachelor of Arts
District of Columbia Bar