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by Sharon Lerner

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The man tapped by President Donald Trump to be second-in-command of the federal agency that protects the public from environmental dangers is a lawyer who has represented companies accused of harming people and the environment through pollution.

David Fotouhi, a partner in the global law firm Gibson Dunn, played a key part in rolling back climate regulations and water protections while serving as a lawyer in the Environmental Protection Agency during Trump’s first administration.

Most recently, Fotouhi challenged the EPA’s recent ban of asbestos, which causes a deadly cancer called mesothelioma. In a brief filed in October on behalf of a group of car companies called the Alliance for Automotive Innovation, he argued that, for the specific uses that were banned, the “EPA failed to demonstrate that chrysotile asbestos presents an unreasonable risk of injury.”

The EPA banned the carcinogen in March, long after its dangers first became widely known. More than 50 other countries have outlawed use of the mineral. The agency had worked toward the ban for decades, and workers died while lobbyists pushed to delay action, as a 2022 ProPublica investigation showed.

Less than a day after Trump’s inauguration this week, the White House webpage that celebrated the historic ban was gone.

Fotouhi’s nomination to be the EPA deputy administrator must yet be approved by the Senate.

The asbestos rule is just one of several environmental issues at the heart of the EPA’s regulatory mission on which Fotouhi has represented companies accused of polluting. The 39-year-old lawyer, who is expected to play a critical role running the agency, represented International Paper in lawsuits accusing the firm of contamination from PFAS, or “forever chemicals”; a tire company that allegedly released a chemical known to kill endangered salmon (the firm disputed the claim and is fighting the lawsuit); and a coalition of businesses in Washington state that sued the EPA over its water quality standards for legacy pollutants known as PCBs.

Environmentalists are calling on Fotouhi to recuse himself from decisions regarding asbestos and other issues he’s recently worked on at Gibson Dunn. “Here’s a guy who wrote a very biased and one-sided attack on the EPA rule on asbestos. I would not want him to come anywhere near EPA decision-making on the asbestos rule,” said Robert Sussman, an attorney who represents the Asbestos Disease Awareness Organization and served as EPA deputy administrator during the Clinton administration.

“I recused myself from everything involving former clients,” said Sussman.

Fotouhi declined to comment for this story. An EPA spokesperson said in a statement, “Every person President Trump nominates for the US EPA will work with the career employees in the EPA Ethics Office to ensure that all applicable ethics obligations are addressed.”

Government ethics law calls for attorneys to recuse themselves for a year from matters on which they provided services in the previous year.

The issue may be a mere formality in an administration that in its first day took steps to roll back environmental and health protections put in place by the previous administration. Within hours of his inauguration on Monday, Trump ordered the withdrawal of the U.S. from the Paris climate accords, halted the approval of leases for new offshore wind projects in federal waters and revoked several executive orders relating to climate change.

It is not unusual for political appointees to the EPA to have ties to industry, especially in Republican administrations. Among the people returning to the agency from Trump’s first term are Nancy Beck, a former lobbyist for the American Chemistry Council, the influential industry trade group; Aaron Szabo, a lobbyist who represented the American Petroleum Institute and contributed to the Project 2025 chapter on the EPA; and Lynn Dekleva, who also worked for the American Chemistry Council and DuPont.

In announcing his nomination of Fotouhi on Truth Social earlier this month, Trump wrote that “David will work with our incredible EPA Administrator, Lee Zeldin, to advance pro Growth policies, unleash America’s Energy Dominance, and prioritize Clean Air, Clean Water, and Clean Soil for ALL Americans.” His expertise could be essential for Zeldin, the former U.S. representative from Long Island whom Trump nominated to run the agency and who has little experience with environmental issues.

While working at the EPA in the first Trump administration, Fotouhi served as deputy general counsel and acting general counsel. He played a central role in a revision of the Waters of the U.S. rule that removed federal protections from wetlands and streams. He later described it as some of his most important work. His Gibson Dunn online biography says he also “played a critical role in developing the litigation strategy to defend” the agency’s decision not to impose financial requirements on companies that extract minerals and ore from rock. Environmentalists had pushed for the requirements to protect taxpayers from being held responsible for costly environmental cleanups.

Fotouhi also advocated for landfills and ponds that contain coal ash to be deemed “clean” even though they didn’t meet the agency’s usual standards — a position favorable to the coal industry, according to one waste expert who worked with him during the Trump administration. “Dave was adamant about that issue,” said the former colleague, who asked not to be named to avoid public involvement in political discussions. The former colleague described Fotouhi as a brilliant lawyer who knows the environmental statutes but “doesn’t hesitate to get creative” to find a way to use them to take industry-friendly positions.

A Harvard-educated attorney, Fotouhi led an office of hundreds of lawyers at Gibson Dunn and has defended clients and provided legal counsel under every major environmental law, according to his bio on the firm’s website. He represented International Paper in two suits over PFAS, persistent industrial chemicals that cause cancer and other diseases. The chemicals were at the heart of two cases in which the company was accused of spreading PFAS-containing biosolids in Maine. The biosolids, or sludge, have been found to contribute to PFAS contamination of food and water throughout the state. (Gibson Dunn is representing ProPublica pro bono in a case against the U.S. Navy.)

Nathan Saunders, a plaintiff in one of the suits, learned in 2021 that his well water in Fairfield, Maine, had extremely high levels of the chemicals. After he learned that PFAS were linked to kidney damage, the discovery made sense to the lifelong Maine resident, whose wife had developed kidney failure more than a decade earlier.

Fotouhi succeeded in getting his client dismissed from the Saunders suit by arguing that there wasn’t information to tie the company’s conduct to the water contamination. Saunders’ attorney, Elizabeth Bailey, described the legal strategy as common among companies facing PFAS contamination suits and difficult for plaintiffs to overcome without access to internal company information. “They say, ‘Yes, there’s contamination, but there’s no way for you to show whose contamination it was and — oh, by the way, if you can’t specifically identify how our contamination got from our location to your client’s location at the very beginning of the lawsuit, we shouldn’t be in this case at all,’” said Bailey.

Fotouhi also attempted to overturn EPA’s water quality standards for toxic chemicals known as PCBs, which have been linked to cancer. In December 2023, he filed a suit against the agency on behalf of Washington state business groups that claimed that the standards are impossible to meet.

If the EPA chooses not to continue fighting the case, those standards could be overturned. The loss would be devastating to waterways, according to Katelyn Scott, water protector at Spokane Riverkeeper, an advocacy organization devoted to protecting the river and its watershed. “Without the EPA at the helm fighting to protect them, our river would be vulnerable to higher levels of pollution that would really put our fish and our people at risk of harm,” she said.

Phillip Landrigan, a physician who has spent decades working to protect public health from environmental threats, said the potential consequences would be similarly dire should the EPA choose to overturn the asbestos ban.

“President Trump came into office saying that he was going to make life better for working Americans,” said Landrigan. Reversing the decades-in-the-making asbestos ban, he said, “would expose working American women and men to a known human carcinogen and fly in the face of that promise.”

Kirsten Berg contributed research.

Update, Jan. 22, 2025: This story was updated to include a statement that an EPA spokesperson provided after publication.

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