HR6409-119

What This Bill Does

The FENCES Act changes Clean Air Act rules for pollution that states argue is beyond their control. It amends section 179B so foreign emissions count regardless of whether they come from human activity. If a state shows EPA that an area would meet a new or revised national ambient air quality standard but for emissions from outside the United States, EPA could not designate that area as nonattainment for that pollutant.

The bill also creates a new section 179C for severe or extreme ozone nonattainment areas and serious particulate matter nonattainment areas. No Clean Air Act section 179 sanction or section 185 fee would apply to a state, area, or source if the state demonstrates that the deficiency or missed attainment deadline would have been avoided but for emissions outside the nonattainment area, exceptional events, or mobile-source emissions that are beyond state control while the state is fully implementing available mobile-source controls. The relief does not remove the underlying duty to establish and implement measures to attain ozone or particulate standards. To keep the relief, the state must renew the demonstration at least once every five years.

Who Benefits and How

States near international borders benefit because they can make a formal showing that foreign emissions prevent attainment and avoid new nonattainment designations. Severe ozone nonattainment states and extreme ozone nonattainment states benefit from a route to avoid sanctions or fees when outside emissions, exceptional events, or uncontrollable mobile sources drive the problem. Serious particulate matter nonattainment states benefit from similar fee and sanction protection. Industrial facilities in affected nonattainment areas benefit if state demonstrations prevent sanctions or section 185 fee exposure. Mobile-source operators benefit when states show those emissions are beyond state control despite available control measures. Border-region employers benefit if fewer sanctions restrict permitting or transportation funding.

Who Bears the Burden and How

State air quality agencies must prepare technical demonstrations for EPA and renew them every five years. EPA air-quality designation staff must evaluate foreign-emissions demonstrations for new or revised standards. EPA enforcement programs lose some sanction and fee leverage when states satisfy the new section 179C test. Residents in polluted nonattainment areas may bear continued health risk because the bill preserves attainment obligations but blocks some penalties. Environmental advocacy organizations may need to challenge state demonstrations rather than relying on automatic sanctions or fees.

Key Provisions

• Expands Clean Air Act section 179B to cover emissions from outside the United States regardless of human activity.
• Blocks nonattainment designations when a state proves the area would attain but for foreign emissions.
• Creates section 179C relief from sanctions and fees for severe ozone, extreme ozone, and serious particulate nonattainment areas.
• Provides relief for emissions outside the nonattainment area, exceptional events, and uncontrollable mobile-source emissions.
• Requires states to continue implementing measures to attain air-quality standards.
• Requires states to renew section 179C demonstrations at least once every five years.