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Kevin A. Gaynor

Experience     |     Education     |     Recognition     |     Activities      |     Publications

Gaynor, Kevin A.

Biography
Kevin enjoys a national practice as an environmental litigator, mediator and as a consultant on environmental matters. His practice focuses on defense of environmental civil and criminal enforcement actions, complex environmental litigation and climate change related matters.

While there is, as yet, no binding federal regulatory program governing carbon dioxide emissions, climate change issues are already being litigated and are playing a key role in the decision-making of businesses whose assets emit carbon dioxide. Kevin has advised clients in many matters touching upon the emerging issue of climate change policy and regulation in a variety of legal contexts.

Before coming to the firm as a partner in 1993, he served in the U.S. Department of Justice, where he was involved in developing national environmental enforcement policies and strategies and as lead counsel in selected cases of national significance.


Representative Experience
Climate Change
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  • Secured dismissal of client from the Kivalina case, the most serious effort by the plaintiffs’ bar to date to obtain damages from carbon emitters for injuries allegedly caused by climate change
  • Drafted an amicus curiae brief in a high-profile Second Circuit appeal on the question of whether climate change policy is a question for Congress and the political branches or whether a court can enjoin carbon dioxide emissions as a nuisance
  • Provided strategic advice to a utility company settling a major EPA lawsuit alleging New Source Review violations at its coal-fired power plants about the regulatory and economic viability of the settlement in light of anticipated future regulatory developments, including those related to climate change and carbon dioxide emissions
Environmental Criminal Matters
Case Citations | View All
  • Defended client from environmental criminal charges associated with a plant explosion that killed and badly injured numerous persons
  • Defended government contractor in EPA criminal investigation involving the alleged illegal discharge of hazardous waste which resulted in a decision by the U.S. Department of Justice to not prosecute
  • Defended client from environmental claims associated with the discharge of drilling mud into coastal waters in the Caribbean which resulted in a decision by the U.S. Department of Justice not to prosecute after a five-year investigation
Environmental Civil Enforcement Matters
Case Citations | View All
  • Defended client in a multi-media enforcement action with particular focus on benzene violations arising from investigation of the plant’s operations after an explosion occurred at the facility
  • Defended three different pipeline companies in enforcement actions brought by the government under Section 311 of the Clean Water Act resulting from numerous and significant releases of oil from the pipelines;  in each case, the client incurred minimal injunctive requirements and among the lowest fines in relation to the amount of oil released of any similar enforcement actions brought by the government
  • Defended a utility in EPA’s NSR initiative which led to what is generally regarded as the most favorable settlement obtained in the initiative and a pre-trial decision by the court cutting off EPA claims for penalties for activities that occurred over five years ago eviscerating EPA’s continuing liability theory in the NSR context
Superfund
Case Citations | View All
  • Successfully mediated a private cost recovery case involving 70 parties and $40 million in clean-up costs at the Cinnaminson Superfund Site
  • Reversed trial court’s decision that client was liable for $10 million successfully arguing that client sold scrap metal as a raw material to the facility at issue and did not arrange for its treatment or disposal; the decision establishes important new precedent on limits of Superfund liability for a secondary material
  • Represented a prior owner of an industrial property in a CERCLA action by the present owner for contribution for clean-up costs; the case was brought in U.S. District Court in the Northern District of New York; after three years of litigation, the client paid less than 10% of the plaintiff’s original demand to settle the case and close to the client’s original settlement offer at the commencement of the litigation
Natural Resource Damages
  • Defended client from natural resource damage and cost recovery claims associated with the largest petroleum spill in the continental United States and seeking reimbursement from the Oil Pollution Fund under act of God theory, which led to an unprecedented NRD settlement package valued at less than $1 million
  • Represented major chemical company in the most significant natural resource damages case on the Gulf Coast and convinced trustees not to pursue client
  • Organized and drafted client testimony on congressional oversight hearings on natural resource damages which led to the State of Pennsylvania withdrawing a natural resource damage action seeking up to $500 million against the client and others and re-evaluating its natural resource damage program
General Environmental Matters
Case Citations | View All
  • Worked with industry leader facing multi-million dollar compliance matters in several states to develop a multi-track compliance strategy to deal with the pending matters, restructure its compliance program and avoid future compliance problems
  • Obtained a temporary restraining order from the DC Court of Appeals preventing EPA from implementing a statutorily required RCRA regulation, (first third land disposal rule) which led to EPA’s modification of the rule prior to oral argument to accommodate my client’s concerns
  • Sued the United States on behalf of a client that incurred over $7 million in clean up costs as a consequence of oil spillage from one of its storage tanks; the suit was based on Section 311 of the Clean Water Act and claimed that the spill was caused by an act of God; the suit was settled, with the client’s insurer and FEMA reimbursing the client for all of its costs
Lateral Experience (1983-1987)
  • Assistant Section Chief of the Environmental and National Resources Division, U.S. Department of Justice; supervised 35 trial attorneys prosecuting federal environmental enforcement cases in the Northeast and Southwest; involved in developing national environmental enforcement policies and strategies
  • Trial Attorney, Environmental Enforcement Section of the Lands Division, U.S. Department of Justice; handled landmark cases in the area of Superfund enforcement, including United States v. Wade and United States v. Metate Asbestos Corp.
  • Assistant United States Attorney, District of Maine; litigated environmental cases and other criminal and civil matters
Prior results do not guarantee a similar outcome.

Education and Professional Background
  • University of Virginia School of Law, J.D., 1973
  • University of Connecticut, B.A., 1970
  • U.S. Environmental Protection Agency, Attorney, 1975 - 1976
  • U.S. Department of Justice, Environmental Enforcement Section of the Environmental and Natural Resources Division, Trial Attorney, 1983 - 1984 (at the advent of the United States' enforcement of Superfund)
  • District of Maine, Assistant United States Attorney, 1984 - 1985
  • U.S. Department of Justice, Assistant Section Chief, Environmental Enforcement Section, Environment and Natural Resources Division, 1985 - 1987
  • Admitted to practice: Connecticut, 1973; District of Columbia, 1978; Maryland, 1991
Professional Recognition
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  • Euromoney's Benchmark Litigation - Local Litigation Star: District of Columbia, 2012 and 2013
  • Legal Media Group's (Euromoney's) Guide to the World's Leading Lawyers - Best of the Best USA in environmental law, 2008 - 2009 
  • Chambers USA: America's Leading Lawyers for Business in environmental law, 2003 - 2013
Activities and Affiliations
  • Past Chair: Environmental, Energy, and Natural Resources Section, D.C. Bar; Government Policy Committee, Natural Resources, Energy, and Environmental Law Section, American Bar Association; Environmental Crimes and Enforcement Committee, Natural Resources, Energy, and Environmental Law Section, American Bar Association
Publications and Presentations
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Kevin A. Gaynor
Partner
2200 Pennsylvania Avenue NW
Suite 500 West
Washington, DC 20037-1701

Tel  +1.202.639.6688
Fax  +1.202.879.8888
kgaynor@velaw.com

Industries/Practices
Arbitration and ADR

Dispute Resolution - International

Energy

Energy/Oil and Gas Litigation

Environmental Litigation and Enforcement

Environmental Regulation and Permitting

Mining and Metals

White Collar Criminal Defense