Bryan Killian is an appellate lawyer who represents clients facing complex, important, or unresolved questions of constitutional, statutory, and administrative law. He has argued more than 35 cases in the US Courts of Appeals for the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Eleventh, and District of Columbia Circuits. Bryan’s practice spans diverse subject areas, including climate change, environmental, tax, arbitration, and American Indian law.
Bryan serves as co-leader of the firm’s Climate Change and Sustainability Working Group and, throughout his career, has had a central role in high-profile litigation over the developing law around climate change. He briefed two of the four lead cases challenging US Environmental Protection Agency’s initial round of regulations concerning stationary-source greenhouse gas emissions under the Clean Air Act (CAA). He also represented fuel producers challenging the constitutionality of California’s Low Carbon Fuel Standard (LCFS). Bryan has represented oil-and-gas companies defending tort suits brought by state and local municipalities, alleging that the defendants are responsible for climate change. Bryan also briefs and argues on behalf of the domestic biofuels industry in state and federal cases related to the federal Renewable Fuel Standard (RFS).
In addition to claims arising from the alleged impacts of climate change, Bryan continues to defend clients on other environmental litigation and enforcement matters. On behalf of one of the owners of the oil well involved in the Deepwater Horizon disaster, Bryan developed successful arguments about choice-of-law and arguments about the scope of the Oil Pollution Act (OPA) and the Clean Water Act (CWA). Bryan has represented multiple companies in connection with CERCLA remediation and allocation disputes involving the federal government.
As part of his tax practice, Bryan has secured employment tax refunds for several railroads, in each case persuading the court of appeals to reverse district court rulings for the federal government. One of those wins opened up a circuit split, which the Supreme Court later resolved in the railroads’ favor. Bryan also has represented patent-holders seeking income-tax refunds concerning their intellectual property, as well as professional employer organizations (PEOs) concerning income-tax questions related to their businesses.
In several class actions, Bryan has briefed and argued motions to compel arbitration, as well as interlocutory appeals, under the Federal Arbitration Act (FAA). Several of those cases involved questions about whether various state-law defenses to arbitration are preempted under the FAA.
Bryan co-leads Morgan Lewis’s American Indian law practice and has been involved in a range of cases arising out of fee-to-trust conversions and tribal jurisdiction over non-Indians.
Bryan regularly teaches a law school course on the theory behind methods of statutory interpretation. Before starting his career as a lawyer, he served as a law clerk to Justice Antonin Scalia of the US Supreme Court and to Judge Paul Niemeyer of the US Court of Appeals for the Fourth Circuit. Bryan was a Bristow Fellow in the Office of the Solicitor General, where he worked on federal civil and criminal appeals and on the federal government’s cases in the US Supreme Court. He is a member of the Fourth Circuit Judicial Conference.
Major victories Bryan has won for his clients include:
Recommended, Dispute resolution: Appellate: courts of appeals/Appellate: supreme courts (states and federal), The Legal 500 US (2019, 2020, 2022, 2023)
Recommended, Industry focus: Energy litigation: oil and gas, The Legal 500 US (2019–2023)
Recommended, Dispute resolution - Appellate - Supreme Court (federal and state), The Legal 500 US (2017, 2018)
Recognized, American Bar Association, On the Rise - Top 40 Young Lawyers (2016)
Recognized, Super Lawyers, Rising Star, Washington, DC (2014–2015)
Bristow Fellow, US Office of the Solicitor General
Member, Fourth Circuit Judicial Conference
Editor and Supreme Court Chair, Harvard Law Review, Vols. 117-118
Duncan Clark Hyde Scholar (top student in Economics), University of Virginia