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A trio of judges found that EPA erred in eliminating affirmative defenses for some pollution violations at major facilities.

Smokestack emissions from a power plant. bkking111/Flickr

Environmental and community advocates are seeking do-overs of two recent court decisions tied to different types of air pollution releases.

In a motion filed last week, California Communities Against Toxics, the Sierra Club and several other groups asked the full bench of the U.S. Court of Appeals for the District of Columbia Circuit to revisit a three-judge panel’s unanimous opinion to revive a legal shield for industrial permitting violations for excess releases stemming from plant emergencies.

The panel’s opinion conflicts with prior rulings “as well as with precedent barring end runs around core statutory requirements,” lawyers for the groups wrote in seeking an en banc review. In a Monday order, the court set a Nov. 12 deadline for EPA and industry challengers to respond to the petition.

In last month’s opinion, Judge Neomi Rao, an appointee of President Donald Trump, and the other two panel members found that EPA erred two years ago in eliminating affirmative defenses for violations for major pollution sources that hold Title V operating permits.

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