EPR Litigation Update: Oregon Court Upholds Packaging Law as Challenges Continue

Madeline Orlando, an attorney at Greenberg Schroerig LLP, discusses the first major litigation outcome on state Extended Producer Responsibility (EPR) packaging laws. The National Association of Wholesaler Distributors challenged Oregon's EPR program on three constitutional grounds: (1) interstate commerce concerns, arguing the law imposes costs on out-of-state businesses for Oregon-specific waste infrastructure; (2) due process violations, claiming producers had no input into fee-setting processes; and (3) improper delegation of authority to Circular Action Alliance (CAA), a private producer responsibility organization handling day-to-day program implementation.

The Oregon District Court upheld the law, reasoning that companies choosing to sell in multiple states must comply with various state laws. The court emphasized that EPR represents legitimate environmental policy within the state's purview, particularly as states bear the burden of failing waste management infrastructure. Regarding interstate commerce, the court found no unconstitutional discrimination, framing compliance costs as part of doing business nationally across multiple state regimes. The decision relied heavily on the National Pork Producers Council Supreme Court precedent, which significantly weakened Pike balancing test arguments.

On the delegation issue, the court found DEQ (Department of Environmental Quality) retained sufficient oversight authority: it approves program plans, reviews fee structures, can reject or revise them, retains enforcement authority, and can revoke CAA's appointment. Although CAA handles day-to-day operations and producers must sign contracts containing mandatory arbitration clauses, the court determined the state maintained constitutional control.

The hosts note this was a facial constitutional challenge, suggesting individual companies with specific facts might raise different as-applied challenges later. The plaintiffs have appealed to the Ninth Circuit, which also covers California and could impact other pending cases. Additional litigation is ongoing in Colorado (federal and state court) and California (with 17 Republican state attorneys generals joining as plaintiffs). While Maryland, Minnesota, Washington, and Maine are still in early implementation phases, other states like New York, Illinois, Massachusetts, and Hawaii are studying or pursuing similar programs. The hosts also discuss a potential federal EPR program push by industry groups, though they view its passage as unlikely.