Technical updates only. The changes between v3 and v4 reflect the bill's progression from being engrossed in the House to being received and referred in the Senate, including the addition of the Senate referral information and the Clerk's name. No substantive policy changes were made to the bill's text.
FENCES Act
- Sponsor
- Rep. Pfluger, August [R-TX-11]
- Committees
- Environment and Public Works Committee (primary)
- Last action
- Apr 17, 2026
Bottom line
The FENCES Act provides states with greater flexibility to avoid federal penalties under the Clean Air Act by allowing them to attribute air quality nonattainment to factors beyond their direct control, such as foreign emissions or certain mobile sources.
What it actually does
This bill amends the Clean Air Act to expand the circumstances under which states can avoid nonattainment area designations, sanctions, and fees for failing to meet air quality standards. It clarifies that emissions from outside the U.S. (regardless of human activity) and certain mobile source emissions can be excluded when determining attainment status or applying penalties, provided specific state control measures are met.
Proponents argue
Supporters argue the bill provides necessary regulatory relief to states and industries that are unfairly penalized for air pollution originating from outside their borders or from sources they cannot effectively control. They contend it promotes economic stability by preventing punitive measures on areas that are making good faith efforts to comply with air quality standards but are hampered by external factors.
Opponents contend
Opponents might argue that the bill weakens the Clean Air Act by creating loopholes that could allow states to avoid responsibility for improving air quality, potentially leading to increased pollution and adverse public health outcomes. They may contend that it shifts accountability away from domestic efforts and could undermine the overall goals of the CAA.
The bill text is short and relatively easy to read, allowing sufficient time for an informed reader to understand its provisions.
Section 2(a) of the bill, amending Section 179B of the Clean Air Act.
Broadening 'Emissions Emanating from Outside the United States' Definition
This provision amends Section 179B of the Clean Air Act to explicitly state that 'emissions emanating from outside of the United States' include those 'regardless of whether such emissions result from human activity.' This expands the types of foreign emissions that states can claim are contributing to their nonattainment status, potentially including natural phenomena like dust storms or volcanic ash.
Supporters argue
Proponents argue this clarification ensures states are not held responsible for pollution entirely beyond their control, such as natural phenomena from other countries, providing a more equitable basis for air quality regulation.
Critics contend
Opponents might argue this broadens the scope for states to avoid responsibility, potentially allowing them to attribute domestically controllable emissions to natural foreign sources, thereby weakening environmental protections.
Tradeoffs
This provision balances holding states accountable for controllable pollution against acknowledging uncontrollable natural or transboundary factors that impact air quality.
Section 2(b) of the bill, adding subsection (e) to Section 179B of the Clean Air Act.
Preventing Nonattainment Designation Due to Foreign Emissions
This provision prohibits the Administrator of the EPA from designating an area as a nonattainment area for any new or revised national ambient air quality standard (NAAQS) if the state can demonstrate that the area would meet the standard 'but for emissions emanating from outside of the United States (regardless of whether such emissions result from human activity).'
Section 2(c) of the bill, inserting new Section 179C into the Clean Air Act.
Exemptions from Sanctions and Fees for Uncontrollable Emissions
This new section exempts states (or areas/sources within them) from federal sanctions or fees under the Clean Air Act for ozone (Severe or Extreme areas) or particulate matter (Serious areas) nonattainment. This exemption applies if the state demonstrates that the deficiency or failure to attain was 'but for' one or more of the following: emissions from outside the nonattainment area, exceptional events, or mobile source emissions beyond state control (provided the state is implementing all available control measures). This demonstration must be renewed every 5 years.
Explicitly includes emissions from outside the U.S. that are not human-caused (e.g., natural events) in the criteria for avoiding nonattainment designations or demonstrating external influence.
Section 2(a) and 2(b) of the bill, amending Section 179B of the Clean Air Act.
Why it matters:While it is standard legislative practice for clarifying definitions, its impact on expanding the scope of excludable emissions is significant, potentially allowing a broader range of natural events to be cited as reasons for nonattainment.
Case for: Supporters argue it provides a more realistic assessment of air quality challenges, acknowledging that natural phenomena can significantly impact local air quality beyond a state's control, ensuring fairness in regulatory assessments.
Case against: Critics might argue it opens the door for states to attribute a broader range of air quality issues to natural causes, potentially reducing the incentive to address human-caused domestic pollution and weakening overall environmental accountability.
Estimated impact: Could significantly broaden the types of 'foreign emissions' claims, potentially affecting numerous nonattainment areas impacted by natural events like dust storms, wildfires, or volcanic activity originating abroad, leading to fewer nonattainment designations.
States seeking exemption from sanctions or fees due to mobile source emissions must demonstrate not only that such emissions are beyond their control to reduce but also that the state is fully implementing all measures within its authority to control these sources.
New Section 179C(a)(3) of the Clean Air Act, inserted by Section 2(c) of the bill.
Why it matters:Standard legislative practice to add qualifiers and conditions to exemptions, ensuring they are not abused and that states are still held accountable for actions within their purview.
Case for: Proponents argue this ensures states are still doing their part to control mobile source pollution, even when seeking exemptions for truly uncontrollable aspects, maintaining a balance between relief and responsibility.
Case against: Opponents might argue that the 'fully implementing' clause could be a high bar, potentially limiting the practical relief offered by the exemption, or that it creates a new area of contention and litigation regarding what constitutes full implementation.
Estimated impact: This condition could significantly limit the number of states that can successfully claim the mobile source exemption, as demonstrating 'full implementation' can be complex and subject to interpretation, thereby maintaining some pressure for domestic mobile source controls.
States that receive an exemption from sanctions or fees under 179C(a) must renew their demonstration of 'but for' causation at least once every 5 years to maintain the exemption.
New Section 179C(c) of the Clean Air Act, inserted by Section 2(c) of the bill.
Why it matters:Standard legislative practice to ensure that exemptions are regularly reviewed and justified, preventing indefinite application without re-evaluation of current conditions.
Case for: Supporters argue this ensures ongoing accountability and that exemptions are only granted when genuinely warranted by current conditions, preventing states from relying on outdated justifications for non-compliance.
Case against: Critics might argue this adds an administrative burden on states, requiring repeated efforts to prove conditions that may not change significantly over time, potentially diverting resources from actual pollution control efforts.
Estimated impact: Creates an ongoing administrative requirement for states benefiting from the exemptions, ensuring regular review of the underlying conditions and potentially leading to the re-imposition of sanctions if conditions change or demonstrations are not renewed.