FENCES Act Shields States from Penalties When Foreign Pollution Causes Bad Air Quality

The new Foreign Emissions and Nonattainment Clarification for Economic Stability Act (FENCES Act) is designed to give states a break when their air quality reports look bad, but the pollution isn’t their fault. Specifically, this bill amends the Clean Air Act to ensure that states and local areas cannot be designated as “nonattainment areas”—a designation that triggers harsh federal sanctions and fees—if the failure to meet air quality standards is due to emissions coming from outside the United States. This is a big deal for border states or those affected by long-range international smog, essentially saying: don’t punish us for pollution we can’t control (SEC. 2).

The Blame Game: Who Gets the Air Quality Ticket?

Currently, if a region fails to meet federal air quality standards for things like ozone or particulate matter, the Environmental Protection Agency (EPA) can hit the state with penalties, restrict federal highway funding, or require costly, mandatory clean-up plans. The FENCES Act changes the rulebook by clarifying that if an area would meet clean air standards but for emissions flowing in from another country, the state is off the hook. This is a direct shield against federal punishment, provided the state can prove the foreign origin of the pollution to the EPA Administrator. For a small business owner in a border town, this could mean avoiding the regulatory red tape and fees that often accompany a nonattainment designation.

The “Beyond Our Control” Clause

The bill doesn’t stop at foreign emissions. It creates a new section (Section 179C) that exempts states from specific federal sanctions and fees if they fail to meet standards in areas with the worst pollution (Severe, Extreme, or Serious nonattainment areas), provided the state can demonstrate the failure was caused by three specific external factors. The first two are clear: emissions from outside the nonattainment area itself, or emissions from an officially declared “exceptional event” (think wildfires or dust storms). The third factor, however, is where things get interesting—and potentially complicated: emissions from mobile sources (like cars and trucks), but only if the state proves those emissions are “beyond its control to reduce” and that it’s already doing everything within its power to control them.

This mobile source exemption is a potential game-changer. While protecting states from foreign smog is one thing, claiming that local traffic pollution is “beyond control” is another. For residents living in a highly polluted area, this provision is worth watching closely. If a state successfully argues that its traffic problem is uncontrollable—maybe because of regional growth or massive interstate trucking—it could avoid federal sanctions without having to implement stricter local measures like enhanced vehicle inspection programs or transit improvements. This could reduce the incentive for states to tackle tough, expensive local pollution problems, potentially leaving the air quality in areas already struggling—and the health of the people living there—stuck in neutral. To keep this exemption, the state must renew its demonstration proving the pollution is from an external cause at least once every five years, meaning the EPA will be busy reviewing these complex claims every half-decade.