The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Kerry McGrath, Partner—Environmental
Kerry McGrath’s practice focuses on permitting and litigation under CWA, ESA, NEPA, and other environmental statutes. As counsel on the many significant water cases and regulatory proceedings of recent years, she represents clients on key issues, such as the scope of federally regulated “waters of the United States,” and NPDES permitting issues, such as section 316(b) requirements for utilities and manufacturers, effluent limits, and discharges to groundwater. She often works with industry groups on major rulemakings and regulatory reform initiatives of the EPA, Army Corps, DOI, and NMFS.
Kerry represents developers, mining companies, agriculture interests, utilities, and pipeline companies on jurisdictional determinations, use of nationwide permits and other general permits, expedited permitting procedures, and mitigation requirements under Section 404 of the CWA. Kerry also counsels companies in navigating NEPA reviews, ESA consultation, and incidental take permitting; NHPA reviews and tribal consultation; and related federal environmental requirements. She advises energy companies on permitting electric transmission and other structures across federal lands administered by the National Park Service and the U.S. Forest Service.
Describe your practice area and what it entails.
As part of the Environmental team at Hunton Andrews Kurth LLP, I work across a wide range of cross-cutting environmental, energy, and administrative law issues. This includes regularly working with clients on navigating permitting and compliance issues for complex energy and infrastructure projects. My practice covers the full spectrum of regulatory processes and litigation in the defense of permits under various federal and state acts and statutes including the Clean Water Act (CWA), the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), and National Historic Preservation Act (NHPA), among others.
Additionally, within our Natural Resources practice, I work with industry groups on major rulemakings and regulatory reform initiatives of the EPA, Army Corps of Engineers, Department of Interior, and National Marine Fisheries Service. I also co-lead one of the largest utility coalitions related to water regulatory issues and collaborate with other legal experts within our firm to produce the best results for our clients. It is important for me to stay ahead of the curve and continue to be a thought leader for my clients. Most recently, I have expanded my practice to advise on environmental justice issues.
What types of clients do you represent?
Our Environmental team represents client across all facets of the energy industry. I represent groups from a wide variety of industry sectors, including utilities, oil and gas, renewables, consumer products, housing and development, and related trade associations and industry coalitions. Additionally, I regularly represent developers, mining companies, agriculture interests, utilities, and pipeline companies on jurisdictional determinations, use of nationwide permits and other general permits, expedited permitting procedures, and mitigation requirements under Section 404 of the CWA. In the past, I have advised interstate natural gas pipelines on environmental permitting and siting matters.
What types of cases/deals do you work on?
I also work on a wide range of permitting approvals, permitting defense, environmental reviews, federal permitting, as well as rulemakings and policy developments. Some of my recent cases include representing a client in navigating the NEPA EIS and NHPA processes for a CWA 404 permit for a major transmission line project. I have also assisted a client on federal permitting matters and related litigation, including litigation before the Eleventh Circuit, for new mines, mine extension projects, and development of facilities in Florida, including advising on all aspects of the permitting process, such as requirements under the CWA, ESA, NEPA, Migratory Bird Treaty Act (MBTA), Bald and Golden Eagle Protection Act (BGEPA), and NHPA. I also recently represented an electric utility in the defense of a key NPDES permit for a power plant facility on tribal lands before the EPA Environmental Appeals Board. In addition, I have worked with numerous clients to obtain Clean Water Act discharge permits, involving every major Clean Water Act issue EPA has addressed in the past few years, including “waters of the United States” jurisdictional determinations, application of CWA section 316(b) requirements for cooling water intake structures, application of EPA’s 2015 steam-electric power generating effluent limitations guidelines, hydrologic connection/
Coal Combustion Residual (CCR) issues, and water quality standards.
How did you choose this practice area?
I grew up near the Chesapeake Bay and learning about water conservation and species protection issues in school, which—in turn—sparked my interest in environmental law. While earning my law degree at The George Washington University Law School, I took several courses on administrative and environmental law that further developed my interest. I later participated in Hunton’s summer associate program where I rotated through several practice areas and found myself gravitating towards the complex work and knowledgeable attorneys within the firm’s Environment and Energy practices. I worked on some of my first environmental and energy cases following that summer when I became a full-time associate at Hunton. I began to learn the building blocks of the environmental review process and found myself fully immersed and glued to the idea of becoming an expert in this space while representing a client to obtain a “waters of the U.S.” jurisdictional determination for an industrial facility that was to be converted into a mixed-use development. The mix of legal and policy arguments, as well as coordination among many different groups and agencies that was needed for that case, taught me the value seeing the “big picture” for effective advocacy in environmental and energy law work.
What is a typical day like and/or what are some common tasks you perform?
I regularly coordinate and communicate with clients on regulatory and compliance matters, work on briefs or memoranda providing legal analysis, and meet with regulatory agencies regarding permitting issues. My day-to-day involves evaluation of new policies and regulations, strategy on regulatory approaches, and preparation of presentations on recent developments of importance to my clients, as well as mentoring junior lawyers.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Be curious and learn the ropes of environmental law by immersing yourself in the field and the administrative process, including by reading trade press and staying up to date on trends and developments. One very important skill to develop is an ability to distill complex legal analysis and communicate it clearly to your client. To be an effective lawyer, it is also important to learn the inner workings of your client’s industry and business to anticipate issues and produce successful results.
How do you see this practice area evolving in the future?
It is an exciting time to be an environmental lawyer. We have seen the beginning of a shift in the energy sector and a transformation of energy companies’ fleets and new projects, which will result in different legal obligations and permitting requirements. As the energy industry transforms, there will be new issues and challenges associated with renewable and clean energy projects, such as an increased focus on water and natural resources issues. Additionally, there is an increasing awareness of and emphasis on environmental justice issues that I see directly impacting the energy sector and many other industries. As environmental law continues to evolve, it is increasingly important to work to balance the needs of industry with the care of the environment.
What kinds of experience can summer associates gain in this practice area at your firm?
We give our summer associates practical and substantive experience researching and writing on important legal issues, while helping to develop client work product. We also have our summer associates assist with our firm’s blogs as well as in preparing case materials. Thought leadership is an important aspect of the summer associate program, which personally launched me into my career path of choice and allowed me to gain experience that helped with the development of my practice and elevation to the firm partnership.
In what ways has the coronavirus pandemic affected your practice? How have you adjusted to lawyering in the wake of COVID-19?
I am surprised by how the pandemic has not substantially affected our practice in terms of workload and continuity. Despite these unprecedented circumstances, our clients still have to comply with regulatory requirements and permitting measures, which has presented challenges in some areas. For example, it is more difficult for our clients to conduct fieldwork like monitoring industrial discharges, delineating wetlands, or conducting species surveys. There have also been delays in permitting processes as agencies have diverted resources to COVID-related efforts.
There has been a very positive shift in how we interact and communicate with our clients as well as internally, and I believe our team and our clients have fully embraced a virtual work space. Video calls have become habit and given us increased opportunities to see our clients and colleagues in different parts of the country, with kids and dogs in the background as everyone works from home. Our practice has had an opportunity to collaborate with clients in different ways, from co-hosting webinars to more regular meetings and video calls.
How do you balance the different hats (from litigation to transactional work to regulatory matters) that an environmental lawyer must wear?
I am energized by this aspect of the job. To be a good environmental lawyer, you have to think of matters and projects holistically, from the project development and permitting phases to litigation and implementation. The more you are able to see the whole picture, the easier it becomes to balance and the more rewarding it is to help a client with a given project. On a typical day, I could be working with four different teams within our firm to find the best solution for a client from various different angles of environmental and energy law. We frequently collaborate with other attorneys within the firm who bring their own complementary expertise on health and safety, project finance, and many other areas. I know we have great attorneys at the firm to collaborate with and assist in tackling an array of projects, which assists in providing balance when needed.