FENCES Act
- Sponsor
- Sen. Lummis, Cynthia M. [R-WY]
- Committees
- Environment and Public Works Committee (primary)
- Last action
- Feb 11, 2026
Bottom line
The FENCES Act aims to provide regulatory relief to U.S. states and areas by shielding them from Clean Air Act penalties and nonattainment designations when air quality standards are not met primarily due to factors beyond their direct control, such as transboundary pollution or natural events.
What it actually does
This bill amends the Clean Air Act (CAA) to clarify that emissions emanating from outside the United States, regardless of whether they result from human activity, must be considered when designating nonattainment areas. It prohibits an area from being designated as a nonattainment area if it would otherwise meet air quality standards but for these foreign emissions. Additionally, it exempts states from certain federal sanctions and fees if they fail to attain air quality standards due to foreign emissions, exceptional events, or uncontrollable mobile source emissions, provided the state implements all available control measures.
Proponents argue
Proponents argue that this bill provides essential regulatory relief and economic stability for states and industries that are unfairly burdened by air quality issues largely caused by pollution originating outside their borders or from natural, uncontrollable events. They contend it is unjust to penalize states for pollution they cannot control, allowing them to focus resources on controllable domestic sources without facing federal sanctions and economic repercussions.
Opponents contend
Opponents might argue that this bill could weaken critical environmental protections by creating potential loopholes for states to avoid accountability for air quality standards, thereby potentially delaying necessary action on domestic pollution sources. They may contend that while foreign emissions are a factor, states still bear a responsibility to mitigate all possible sources of pollution within their control to protect public health.
The bill is short and relatively straightforward, allowing for a quick read to grasp its core intent and provisions.
Section 2(a) of the bill, amending Section 179B of the Clean Air Act
Expanding 'Emissions Emanating from Outside the United States' Definition
This provision clarifies that when determining if an area would meet air quality standards 'but for emissions emanating from outside of the United States,' these foreign emissions explicitly include those 'regardless of whether such emissions result from human activity.' This broadens the scope of what can be considered foreign-sourced pollution beyond human-caused industrial or vehicular emissions to potentially include natural phenomena like wildfires or dust storms originating abroad.
Supporters argue
Supporters argue this clarification provides necessary flexibility for states facing significant transboundary pollution, including natural events, ensuring they are not unfairly penalized for factors beyond their control. It aligns the Clean Air Act with the realities of global atmospheric transport.
Critics contend
Critics might argue that expanding this definition could create a loophole, allowing states to attribute more pollution to external, uncontrollable sources, thereby reducing their incentive to implement stringent controls on domestic emissions.
Tradeoffs
This provision navigates the tradeoff between holding states accountable for air quality and recognizing that some pollution sources are genuinely beyond their control, including natural phenomena.
Section 2(b) of the bill, adding subsection (e) to Section 179B of the Clean Air Act
Preventing Nonattainment Designations Due to Foreign Emissions
This provision states that an area cannot be designated as a nonattainment area for any new or revised national ambient air quality standard (NAAQS) if the state can prove to the EPA Administrator that the area would be in attainment with such standard but for emissions emanating from outside the United States (regardless of human activity). This provides a direct pathway for states to avoid nonattainment status under specific circumstances.
Section 2(c) of the bill, inserting new Section 179A into the Clean Air Act
Exempting States from Sanctions and Fees for Uncontrollable Emissions
This new section prevents federal sanctions or fees from applying to states (or areas/sources within them) classified as Severe or Extreme nonattainment for ozone, or Serious nonattainment for particulate matter, if the state demonstrates it would have avoided the deficiency or attained the standard 'but for' one or more of the following: (1) emissions from outside the nonattainment area, (2) emissions from an exceptional event, or (3) emissions from mobile sources that are beyond the state's control, provided the state is fully implementing its authority to control such mobile sources. This exemption requires periodic renewal every 5 years and does not affect the state's underlying obligation to attain standards.
The phrase 'regardless of whether such emissions result from human activity' is inserted multiple times to clarify that foreign emissions, whether natural (e.g., dust storms, wildfires) or anthropogenic, count towards the 'but for' test for nonattainment designations and sanctions.
Section 2(a)(1) and (2), and Section 2(b) (new 179B(e))
Why it matters:This could be seen as standard legislative drafting to ensure comprehensive coverage, or potentially as a subtle expansion of what states can claim as uncontrollable, thereby reducing their regulatory burden.
Case for: Supporters argue it provides necessary clarity and fairness, acknowledging that natural transboundary events can significantly impact air quality and should be considered when assessing state compliance.
Case against: Critics might argue it broadens the scope for states to avoid responsibility for air quality issues, potentially allowing them to attribute more pollution to natural phenomena rather than addressing domestic sources.
Estimated impact: Potentially significant, as it expands the types of emissions that can be excluded from a state's responsibility for nonattainment, affecting a wider range of geographic areas.
This provision allows states to be exempt from sanctions and fees if they fail to attain air quality standards due to mobile source emissions that are 'beyond the control of the State to reduce or eliminate,' provided the state is fully implementing its authority to control such mobile sources.
Section 2(c), adding new Section 179A(a)(3)
Why it matters:This language is crucial for determining the practical scope of the exemption. It could be standard legislative language to provide a conditional exemption, or it could be a point of future contention regarding what constitutes 'beyond control' for states.
Case for: Proponents argue it recognizes the limitations of state authority over certain mobile sources (e.g., federal vehicle standards, interstate trucking) and prevents states from being penalized for issues they cannot fully address.
Case against: Opponents might argue this phrase is vague and could be interpreted broadly by states to avoid responsibility for mobile source emissions, even when more aggressive state-level policies could be implemented.
Estimated impact: Could significantly impact states with large mobile source contributions to air pollution, potentially reducing federal pressure for state-level innovation in this sector and affecting air quality in urban areas.