Federal Court Puts Oregon Extended Producer Responsibility Program On Limited Hold Ahead Of Upcoming Trial
A federal district court judge in Oregon recently enjoined the Oregon Department of Environmental Quality (DEQ) from enforcing the state’s first-in-the-nation Extended Producer Responsibility (EPR) law—the Plastic Pollution and Recycling Modernization Act. The court’s February 6 injunction is limited in that it only pauses enforcement of Oregon’s EPR law as to the National Association of Wholesale-Distributors and the organization’s members, the plaintiff in this lawsuit. The case is National Association of Wholesale-Distributors v. Feldon, et al., Case No. 3:25-cv-01334.
The court granted the preliminary injunction on the basis of the plaintiff’s claims that the law violates the U.S. Constitution’s Dormant Commerce Clause and the Due Process Clause of the Fourteenth Amendment. The court’s order cited “serious questions” as to the merits of these issues and noted that the likelihood of irreparable injury and balance of hardships warranted the pause. In short, the plaintiff argues that the Oregon EPR program violates the Dormant Commerce Clause because, among other things, the law unduly restricts interstate commerce as the relevant packaging and distribution systems are nationwide, because in many cases the fees imposed by the program exceed profit margins on the products being distributed, which has the effect of shutting out distributors from the state, and because the law captures packaging and other materials that not only enter and remain in the state but also that pass through and leave the state. Regarding the alleged Due Process Violations, the plaintiff argues that, among other things, the Oregon EPR law’s reliance on a private, third-party Producer Responsibility Organization (PRO)—the Circular Action Alliance (CAA)—to administer significant elements of the program is unconstitutional because it has been given significant regulatory authority and the CAA is directed by founding member organizations that are also regulated by the EPR law itself.
The court dismissed other claims raised by the plaintiff under the Oregon Constitution, the Unconstitutional Conditions Doctrine, and the Equal Protection Clause. The court also dismissed as defendants several individual DEQ members named in their official capacity. The plaintiff has until February 20, 2026, to replead any of these claims.
The court has set a five-day court trial beginning on July 13, 2026, to consider the merits, although the court’s decision is likely to face a lengthy process of challenges and appeals from the losing party. Should the plaintiff ultimately prevail on these constitutional arguments it will have significant implications well beyond Oregon, as six other states—California, Colorado, Maine, Maryland, Minnesota and Washington—have already passed a similar EPR law and are actively rolling out those programs. For example, on February 6 the Maryland Department of the Environment published its proposed regulations for implementing the state’s EPR law. Many other state legislatures are also in the process of considering a similar EPR program. And, CAA has already been engaged, or is being considered, by several of these states as the third-party PRO responsible for administering the EPR program.
In light of this injunction, what is the current status of Oregon’s EPR law? DEQ has issued a press release confirming that the law itself remains in effect and characterizing the decision as “narrow” and “temporary.” To answer a number of recent questions from regulated entities, CAA issued its own guidance document. Per that release, CAA is continuing to implement Oregon’s EPR program and that “[b]ased on current DEQ direction and the approved [Oregon EPR] framework, all registration, reporting and fee processes continue unchanged for obligated producers. The injunction does not pause or alter [Oregon EPR] requirements for the vast majority of producers [that are not the National Association of Wholesale-Distributors and its members].” CAA also confirmed that despite the injunction it will continue to implement the approved and established compliance schedule for Oregon, including program fee payment and reimbursement schedules.
Producers that are currently enrolled with CAA to comply with Oregon’s EPR law–whether they are members of the National Association of Wholesale-Distributors or not–should continue to monitor upcoming Oregon EPR deadlines and associated deadlines set by CAA and independently determine next steps regarding compliance while this limited injunction stands. Shook, Hardy & Bacon will continue to provide client alerts regarding this lawsuit and related state EPR updates.
The court granted the preliminary injunction on the basis of the plaintiff’s claims that the law violates the U.S. Constitution’s Dormant Commerce Clause and the Due Process Clause of the Fourteenth Amendment. The court’s order cited “serious questions” as to the merits of these issues and noted that the likelihood of irreparable injury and balance of hardships warranted the pause. In short, the plaintiff argues that the Oregon EPR program violates the Dormant Commerce Clause because, among other things, the law unduly restricts interstate commerce as the relevant packaging and distribution systems are nationwide, because in many cases the fees imposed by the program exceed profit margins on the products being distributed, which has the effect of shutting out distributors from the state, and because the law captures packaging and other materials that not only enter and remain in the state but also that pass through and leave the state. Regarding the alleged Due Process Violations, the plaintiff argues that, among other things, the Oregon EPR law’s reliance on a private, third-party Producer Responsibility Organization (PRO)—the Circular Action Alliance (CAA)—to administer significant elements of the program is unconstitutional because it has been given significant regulatory authority and the CAA is directed by founding member organizations that are also regulated by the EPR law itself.
The court dismissed other claims raised by the plaintiff under the Oregon Constitution, the Unconstitutional Conditions Doctrine, and the Equal Protection Clause. The court also dismissed as defendants several individual DEQ members named in their official capacity. The plaintiff has until February 20, 2026, to replead any of these claims.
The court has set a five-day court trial beginning on July 13, 2026, to consider the merits, although the court’s decision is likely to face a lengthy process of challenges and appeals from the losing party. Should the plaintiff ultimately prevail on these constitutional arguments it will have significant implications well beyond Oregon, as six other states—California, Colorado, Maine, Maryland, Minnesota and Washington—have already passed a similar EPR law and are actively rolling out those programs. For example, on February 6 the Maryland Department of the Environment published its proposed regulations for implementing the state’s EPR law. Many other state legislatures are also in the process of considering a similar EPR program. And, CAA has already been engaged, or is being considered, by several of these states as the third-party PRO responsible for administering the EPR program.
In light of this injunction, what is the current status of Oregon’s EPR law? DEQ has issued a press release confirming that the law itself remains in effect and characterizing the decision as “narrow” and “temporary.” To answer a number of recent questions from regulated entities, CAA issued its own guidance document. Per that release, CAA is continuing to implement Oregon’s EPR program and that “[b]ased on current DEQ direction and the approved [Oregon EPR] framework, all registration, reporting and fee processes continue unchanged for obligated producers. The injunction does not pause or alter [Oregon EPR] requirements for the vast majority of producers [that are not the National Association of Wholesale-Distributors and its members].” CAA also confirmed that despite the injunction it will continue to implement the approved and established compliance schedule for Oregon, including program fee payment and reimbursement schedules.
Producers that are currently enrolled with CAA to comply with Oregon’s EPR law–whether they are members of the National Association of Wholesale-Distributors or not–should continue to monitor upcoming Oregon EPR deadlines and associated deadlines set by CAA and independently determine next steps regarding compliance while this limited injunction stands. Shook, Hardy & Bacon will continue to provide client alerts regarding this lawsuit and related state EPR updates.
