FENCES Act
Key claim: The FENCES Act would exempt states from Clean Air Act sanctions, fees, and nonattainment designations when air-quality shortfalls are caused by emissions outside state or national control, including foreign emissions and exceptional events such as wildfires.
Abstract
(HR6409 · 119th Congress) Foreign Emissions and Nonattainment Clarification for Economic Stability Act or the FENCES Act This 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 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) 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). 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 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. Latest action (2026-04-17): Received in the Senate and Read twice and referred to the Committee on Environment and Public Works.
Why this matters
Nonattainment designations trigger significant compliance costs — stricter New Source Review, offset requirements, transportation conformity, and potential federal sanctions on highway funding — that fall on states even when the underlying emissions originate abroad or from uncontrollable wildfire events. The FENCES Act would shift where that burden lands, offering relief to western and border states increasingly affected by transboundary pollution and smoke, while raising questions about how remaining air-quality gaps get closed. It sits at the intersection of NAAQS implementation, wildfire policy, and cross-border emissions attribution.