FENCES Act
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The FENCES Act would let states avoid Clean Air Act penalties and fees for failing to meet air quality standards for ozone or fine particulate matter if they can show the shortfall came from foreign emissions, wildfires, or other emissions beyond their control.
It would also bar the EPA from designating an area as failing to meet a new air quality standard if the state shows it would otherwise be in compliance but for pollution originating outside the United States, including human-caused foreign emissions.
What this bill would do
What it would do
The bill would amend the Clean Air Act to expand and clarify when states are shielded from consequences of air pollution they say is not their fault. It would create a new Section 179C letting states avoid sanctions or fees for nonattainment in the most severe ozone and particulate-matter areas if they demonstrate the shortfall stemmed from emissions outside the nonattainment area, an exceptional event like a wildfire, or mobile-source emissions beyond the state's control. States would have to renew this demonstration every five years. It would also clarify that foreign emissions covered under existing law's exemption count "regardless of whether such emissions result from human activity," and would bar the EPA from designating an area as nonattainment for a new standard if the state shows it would otherwise comply but for such foreign emissions. The bill does not remove a state's underlying obligation to work toward attaining air quality standards; it only limits sanctions and fees tied to falling short. It does not change the substantive national ambient air quality standards themselves.
Key provisions
- 1Would exempt severe/extreme ozone and serious particulate-matter nonattainment areas from Clean Air Act sanctions and fees if the state shows the deficiency was caused by outside-area emissions, exceptional events, or uncontrollable mobile-source emissions.
- 2Would require states to renew this demonstration at least once every five years to keep the sanctions exemption in effect.
- 3Would bar EPA from designating an area as nonattainment for a new or revised air quality standard if the state shows it would attain the standard but for emissions from outside the United States.
- 4Would clarify that foreign emissions excusing a state from nonattainment penalties can include emissions resulting from human activity, not just natural sources.
Who would be affected
States and local air-quality agencies in areas classified as severe or extreme for ozone, or serious for particulate matter, particularly border and downwind states affected by wildfires, foreign industrial emissions, or cross-border pollution. The Environmental Protection Agency, which reviews these demonstrations, and residents of nonattainment areas are also affected.
Why it matters
States facing persistent air quality violations tied to wildfires, cross-border pollution, or vehicle emissions they say they cannot control could avoid federal sanctions and fees, potentially easing highway-fund or permitting penalties. Critics may see this as weakening enforcement pressure to reduce pollution, while supporters argue it prevents states from being penalized for pollution sources beyond their jurisdiction.
What would change
Changes to existing law
Amends Clean Air Act Section 179B (42 U.S.C. 7509a) (Sec. 2(a)-(b))
Clarifies that the existing foreign-emissions exemption covers emissions regardless of whether they result from human activity, and adds a new nonattainment-designation exemption.
Creates Clean Air Act (Sec. 2(c))
Adds new Section 179C exempting certain severe nonattainment areas from sanctions and fees for deficiencies caused by outside emissions, exceptional events, or uncontrollable mobile sources.
Agencies directed to act
How implementation would work
States seeking the sanctions exemption would submit a demonstration to the EPA Administrator showing that outside-area emissions, an exceptional event, or uncontrollable mobile-source emissions caused their nonattainment deficiency, while also showing they are fully implementing measures within their control. The EPA would evaluate and accept or reject these demonstrations, and states would need to resubmit and renew the demonstration at least every five years to keep the exemption from sanctions and fees in effect.
Legislative status & sources
Latest action
Received in the Senate and Read twice and referred to the Committee on Environment and Public Works.
Official CRS summary
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This bill modifies standards under the Clean Air Act to exempt states from penalties for emissions outside of the state’s control.
The bill provides that certain nonattainment areas (i.e., those classified as severe or extreme for ozone or as serious for particulate matter) are not subject to sanctions for implementation plan deficiencies or for fees for failing to attain national ambient air quality standards (NAAQS) if the state demonstrates it would have avoided deficiencies or attained its standards but for emissions outside of its control (e.g., emissions from an exceptional event like a wildfire). A state must renew its demonstration at least once every five years for exemption from the sanctions or fees to continue to apply.
The bill specifies that an area within a state may not be designated as a nonattainment area regarding any new or revised NAAQS for a pollutant if the state demonstrates it would be in attainment but for emissions emanating from outside of the country, regardless of whether the emissions resulted from human activity.
For purposes of approving a state implementation plan or meeting certain NAAQS, current law provides that a state may demonstrate to the Environmental Protection Agency that but for emissions emanating from outside of the country, it would have attained applicable NAAQS by the attainment date for certain pollutants. The bill specifies that such emissions emanating from outside the country may include emissions that result from human activity.
Legislative subjects
Air quality; Civil actions and liability; Climate change and greenhouse gases; Environmental Protection; Pollution liability; State and local government operations; User charges and fees
Committee report
H. Rept. 119-594