The full U.S. Court of Appeals for the District of Columbia Circuit should take up a lawsuit challenging an Environmental Protection Agency air permitting regulation because a three-judge panel's decision to dismiss the lawsuit conflicts with other decisions of the court, an environmental group said (Sierra Club de Puerto Rico v. EPA, D.C. Cir., No. 14-1138, 4/18/16).

The Sierra Club de Puerto Rico and other public health groups, in an April 18 petition for en banc rehearing, asked the D.C. Circuit to review a unanimous March 4 opinion that ruled the public health petitioners hadn't brought a timely challenge under the Clean Air Act.

In that lawsuit, the public health petitioners alleged that a 1980 regulation included an illegal exemption from the nonattainment New Source Review Program, which requires new and modified industrial facilities in nonattainment areas to meet the lowest achievable emissions rate and purchase offsets for any additional emissions caused by the facility. The judges rejected arguments that a July 2014 decision by the EPA to grant Energy Answers Arecibo LLC a less-stringent permit for construction of an incinerator in a lead nonattainment area in Puerto Rico opened a 60-day window for the parties to seek judicial review.

Brendan Collins, a partner at Ballard Spahr LLP, argued on behalf of Energy Answers Arecibo LLC.