The FENCES Act modifies how the Clean Air Act handles air pollution that comes from outside the United States. Currently, when the EPA sets air quality standards for regions, it already allows states to exclude foreign emissions from their calculations. This bill clarifies and expands that exemption in two main ways. First, it makes clear that states can exclude any emissions coming from outside U.S. borders—whether they come from human activities like factories or from natural sources like dust storms. Second, it creates a new protection for states in severely polluted areas: if a state can prove that it would meet federal air quality standards except for pollution drifting in from other countries, the state won't face federal penalties or fees for missing those standards. However, this doesn't let states off the hook entirely—they still have to keep working to improve their own air quality and implement whatever pollution controls are within their power. States that want to use this foreign emissions exemption have to prove their case to the EPA and renew that proof every five years.

FENCES Act

Pfluger, August

Foreign Emissions and Nonattainment Clarification for Economic Stability Act or the FENCES ActThis 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&nbsp;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)&nbsp;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).&nbsp;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&nbsp;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.