Analysis Of Oregon EPR Litigation: Arguments And Conclusions

On August 27, 2026, Judge Michael H. Simon issued a Findings of Fact and Conclusions of Law in the case of National Association of Wholesaler-Distributors v. Feldon, finding that Oregon’s Plastic Pollution and Recycling Modernization Act (RMA) does not violate the Dormant Commerce Clause or the Due Process Clause. Following a five-day bench trial before the U.S. District Court for the District of Oregon in July 2026, Plaintiff National Association of Wholesaler-Distributors (NAW) and Defendant Leah Feldon, Director of the Oregon Department of Environmental Quality (DEQ), submitted extensive post-trial briefing addressing a discrete number of remaining questions about the constitutionality of the RMA.

Background

RMA and Program Structure

Oregon enacted the RMA, which came into effect on January 1, 2022, to restructure the state’s recycling system and shift a portion of the financial responsibility for managing packaging, printing and writing paper, and food service ware to producers. Oregon’s model relies on producer responsibility organizations (PRO) to administer significant portions of the program. The Circular Action Alliance (CAA), a dominant PRO group in the United States, currently serves as the PRO for Oregon’s program. Oregon DEQ regulates the program and approves the PRO’s program plan, while CAA administers producer participation and calculates and charges producer membership fees pursuant to the methodology contained in its approved program plan.

In filings and during trial, NAW characterized CAA as a financially interested private entity exercising governmental regulatory authority over businesses that effectively have no practical alternative but to contract with CAA. Oregon DEQ argued that the legislature permissibly chose to use a PRO to administer producer responsibility and that CAA operates within statutory requirements, is an approved program plan, and is subject to Oregon DEQ oversight and existing administrative and judicial review mechanisms. The program structure and CAA’s oversight were central to many arguments made during trial, and played a large role in Judge Simon’s decision in the case.

Arguments Made during Litigation

Dormant Commerce Clause Challenge

Under this claim, NAW argued that the RMA discriminates against interstate commerce and, independently, imposes burdens on interstate commerce that are excessive in relation to Oregon’s local benefits. NAW alleged that producer fees allocated pursuant to the RMA result in unreasonable regulatory charges imposed substantially on interstate actors to finance Oregon infrastructure.

At issue during trial was a question of whether the RMA merely regulates products sold in or into Oregon or instead burdens interstate distribution networks themselves. NAW’s witnesses described wholesalers and distributors whose operations do not divide neatly at state boundaries. Products may enter a regional distribution center, be allocated among several states, and be priced across product lines and territories. NAW argued that Oregon-specific Extended Producer Responsibility (EPR) costs therefore cannot always be isolated to Oregon transactions and instead affect pricing, sourcing, packaging, inventory, and distribution decisions throughout interstate networks. NAW also pointed to evidence that businesses may spread EPR costs across broader markets rather than passing on the entire cost only to Oregon customers. NAW argued that the result is that consumers outside Oregon may help finance Oregon’s recycling infrastructure.

Oregon responded that the Dormant Commerce Clause does not prohibit a state from imposing regulatory costs on businesses participating in its market merely because those businesses operate nationally or may choose to distribute their costs elsewhere. It argued that the RMA regulates covered products sold in or into Oregon, does not control transactions occurring wholly outside the state, and does not prevent goods from crossing state lines. Oregon relied substantially on modern Dormant Commerce Clause precedent, including National Pork Producers Council v. Ross, 598 U.S. 356 (2023), in arguing that upstream or out-of-state commercial effects do not themselves render a state law unconstitutional.

NAW alternatively made an argument under Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), arguing that the RMA imposes substantial burdens on interstate commerce that are clearly excessive in relation to its local benefits. NAW presented expert and industry testimony concerning compliance costs, fee increases, supply-chain effects, packaging decisions, and the difficulty of complying with different EPR regimes across states. NAW also questioned the magnitude of the environmental benefits Oregon will obtain from the program and whether some program expenditures bear an adequate relationship to individual producers’ impacts.

Oregon argued that NAW largely presented company-specific anecdotes rather than evidence of a constitutionally substantial burden on interstate commerce as a whole. Oregon also maintained that the RMA serves substantial local interests by modernizing Oregon’s recycling infrastructure, expanding recycling opportunities, improving material management, and shifting responsibility for covered waste to producers.

Due Process Clause Challenge

NAW brought two related but independently sufficient theories under the Due Process Clause. First, NAW argued that Oregon impermissibly delegated regulatory authority to a self-interested private entity without sufficient governmental supervision. Second, NAW argued that producers subject to regulation under the RMA incur obligations before knowing the fees that ultimately will be assessed and lack an adequate process for challenging those assessments before a neutral decisionmaker with access to the information necessary to evaluate how the fees were calculated.

For each argument, NAW was required to demonstrate a protected interest that Oregon DEQ is depriving or has deprived its members of without due process. NAW argued that its members have a protected interest under private delegation when a state permits financially interested private parties to regulate others. NAW also argued that compelled producer fees and the statutory requirement that fees conform to the approved program plan create protected property interests. Oregon, in response, argued that there is no constitutionally protected property right to access the Oregon market on a producer’s preferred terms and that the RMA’s enforcement process provides procedures before Oregon DEQ could impose penalties or otherwise deprive a producer of a protected interest.

Oregon asserted that existing Oregon procedures provide sufficient process to aggrieved parties. Its post-trial brief notes that a party may seek the material through Oregon’s public-records process, obtain Attorney General review of a denial, and ultimately seek judicial review. Oregon also argued that no NAW member completed that process before asking the federal court to treat the information as constitutionally inaccessible.

Judge Simon’s Findings of Fact and Conclusions of Law

Dormant Commerce Clause

Judge Simon rejected all three of NAW’s Dormant Commerce Clause theories: discrimination against interstate commerce, unreasonable user fees, and excessive burden to NAW members. He began from the Supreme Court’s instruction that invalidating a democratically enacted state law under the Dormant Commerce Clause is a matter of “extreme delicacy,” appropriate only “where the infraction is clear.” The doctrine’s central concern, he explained, is economic protectionism, state regulation designed to benefit in-state economic interests by burdening out-of-state competitors. The RMA does not have that purpose.

NAW pointed to a statement from Oregon DEQ that multistate producers might spread compliance costs across consumers in several states. Judge Simon found this statement lacking legislative intent to benefit in-state interests: it was made two years after enactment and did not show that Oregon intended to favor local businesses. Instead, Judge Simon concluded that the contemporaneous legislative findings showed that the RMA was enacted to protect public health and natural resources and reduce pollution, greenhouse-gas emissions, and other adverse consequences of packaging waste.

The court found no facial discrimination or proven discriminatory effect within the RMA. NAW lacked standing to challenge the exemption for Oregon governmental bodies because it did not demonstrate that the exemption increased its members’ fees, and its asserted claimed injury was not meaningfully tied to a barrier against interstate commerce. Alternatively, Oregon public bodies were not similarly situated to out-of-state public bodies because Oregon entities already support the state’s waste-management system through taxation. Laws favoring government entities, Judge Simon reasoned, do not implicate the Dormant Commerce Clause in the same manner as laws favoring private in-state businesses. The revenue and immediate-consumption exemptions were facially neutral, and NAW supplied only hypothetical or speculative evidence, not proof, that either exemption actually shifted the competitive balance in favor of Oregon businesses. The court similarly rejected the user-fee theory because NAW had not quantified the alleged free-rider effect or established that CAA’s initial surplus made its fees “clearly excessive,” particularly where the surplus could reduce fees in later years.

Finally, NAW did not demonstrate a “substantial or significant burden” on interstate commerce. Its evidence established that individual businesses might incur costs, reroute operations, or increase prices, but Dormant Commerce Clause “protects the interstate market, not particular interstate firms from . . . burdensome regulations.” Judge Simon rejected NAW’s attempt to characterize effects throughout a national supply chain as an independently unconstitutional extraterritorial burden. Even assuming a sufficient burden, it was not clearly excessive relative to Oregon’s substantial local interests. Waste management is traditionally a state and local responsibility, and the RMA exercises “two fundamental police powers: mitigating waste pollution and protecting the health and safety of its citizenry.”

Due Process Clause

Judge Simon first held that NAW’s state-law private-delegation claim required a threatened deprivation of a protected life, liberty, or property interest. Unlike a challenge to a congressional delegation under Article I, a challenge to a state legislature’s delegation arises under the Fourteenth Amendment, which “does not create property rights; it merely protects them.” NAW therefore could not rely on the alleged structural defect alone. Although the RMA did not itself create an entitlement to a particular fee calculation, the court recognized that ownership of money may constitute a core property interest. Calling the issue a “close call,” Judge Simon assumed without deciding that the membership fees implicated a protected property interest and proceeded to the merits.

On private delegation, the court declined to find that Oregon DEQ was entrusting a self-interested private entity with governmental power to regulate its competitors. Although CAA and other producer-run PROs may have interests adverse to some members, that fact was not dispositive because a private organization may assist the government if it “functions subordinately to” the agency and remains subject to governmental “authority and surveillance.” Producers were not legally compelled to join CAA; they could seek approval for another PRO or privately recycle covered products. More importantly, Oregon DEQ retained ultimate decision-making authority. The evidence showed that Oregon DEQ reviewed CAA’s fee methodology and covered-material cost values, required substantive changes, performed its own cross-subsidization calculations, and engaged in an iterative review with CAA before approving the plan. Judge Simon found that it was constitutionally sufficient that CAA’s recommendations could not take effect without Oregon DEQ’s approval. Because the RMA supplies governing criteria, with CAA playing a subordinate role and Oregon DEQ retaining final authority, Judge Simon concluded that there was no unconstitutional private delegation.

The court also rejected NAW’s claim that producers lacked adequate procedures to challenge fees. Judge Simon initially reasoned that CAA membership was voluntary because producers could establish another PRO, use private recycling, accept civil enforcement, or leave the Oregon market; thus, paying CAA fees did not necessarily constitute an involuntary deprivation. The retrospective fee cadence rationally advanced the legitimate purposes of adequately funding recycling and making producers internalize the costs associated with the products entering Oregon’s system. CAA’s arbitration provision did not render the statute unconstitutional: it arose from CAA’s contract, permitted judicial intervention in appropriate circumstances, and operated alongside informal dispute resolution. The RMA’s actual governmental enforcement mechanism provided still greater protection: notice and an opportunity to cure, an administrative hearing, judicial review, and no payment obligation until appeals were exhausted. Judge Simon deemed that process “more than adequate under the Fourteenth Amendment.”

Policy

Judge Simon framed the decision around federalism, state experimentation, and judicial restraint. His opening paired the rule that companies selling in multiple states ordinarily must comply with each state’s laws with Justice Louis Brandeis’ warning in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), that “[t]o stay experimentation in things social and economic is a grave responsibility.” In Judge Simon’s view, the RMA represents Oregon’s continuation of more than fifty years of experimentation and leadership in waste-management policy, beginning with its 1971 Bottle Bill. Oregon may serve as a “laboratory” for a new approach to packaging waste, and parallel laws in other states may help demonstrate which EPR models work and which require improvement. If national uniformity ultimately becomes necessary, Congress can establish it through federal legislation and preemption; “Judicial intervention, however, is not needed in this case.”

Substantively, Judge Simon accepted the RMA as a legitimate effort to internalize the environmental and public costs of packaging waste. EPR laws seek to ensure that a product’s price reflects costs that otherwise fall on municipalities, taxpayers, and other third parties. The RMA therefore shifts end-of-life management costs toward producers whose products enter Oregon’s recycling and disposal systems. Judge Simon analogized this approach to established land-use policies requiring regulated actors to internalize the negative externalities of their conduct, describing that concept as a “hallmark of responsible” regulation. He found the RMA directed toward concrete state interests: modernizing recycling infrastructure, reducing pollution and greenhouse-gas emissions, conserving resources, and protecting health and human well-being.

The decision does not hold that Oregon selected the best possible EPR structure, that CAA’s calculations are perfectly transparent, or that producers’ practical concerns are unfounded. Instead, Judge Simon repeatedly separated policy criticism from constitutional invalidity. The RMA requires fees to be only “approximately proportional,” and the Constitution does not demand the level of precision or transparency that NAW preferred. Questions about “the wisdom of the legislation” and “the appropriateness of the remedy chosen,” he wrote, are not the court’s concern.

Commentary

The results of this litigation are noteworthy, well beyond Oregon. EPR programs increasingly rely upon PROs to collect fees from regulated producers and use those funds to finance recycling and waste-management programs. NAW v. Feldon is the first in a series of challenges to ask difficult questions about the constitutional limits of that model: how much regulatory authority a state may assign to a private PRO; what procedural protections producers must receive when a PRO assesses mandatory fees; whether a state may impose costs that affect interstate supply chains; and whether statutory exemptions impermissibly distinguish between in-state and out-of-state interests. While Judge Simon upheld Oregon’s program under the legal arguments made during trial, impacts and structures of other programs could yield different results.

It is likely that this decision will have a ripple-down effect on other EPR cases that have been filed in states with existing EPR laws, like California and Minnesota. On July 14, 2026, the U.S. District Court for the Southern District of California issued a preliminary injunction in California League of Food Producers v. Bonta, blocking enforcement of Senate Bill (SB) 343, California’s “Truth in Recycling” law. While SB 343 is not directly an EPR law, it does have direct impacts on EPR implementation, especially since SB 343 and SB 54, California’s Plastic Pollution Prevention and Packaging Producer Responsibility Act, were implemented within a similar timeframe. In response to SB 54, a 17-state coalition, that includes NAW as the sole business plaintiff, has filed a motion for a preliminary injunction, asking the U.S. District Court for the Eastern District of California to block enforcement of SB 54 while the coalition’s constitutional challenge proceeds. Finally, on July 30, 2026, NAW filed a federal lawsuit, NAW v. Ryan (Case No. 1:26-cv-03460), challenging Colorado’s Producer Responsibility Program for Statewide Recycling Act (House Bill 22-1355), the state’s EPR packaging law. The decision in NAW v. Feldon will surely impact the arguments and decisions made in existing and future EPR litigation challenges.

For regulated entities, the immediate lesson is therefore not that Oregon’s program necessarily will be upheld or invalidated. Rather, NAW v. Feldon demonstrates that the design details of EPR programs matter. The allocation of governmental and private authority, mechanisms for establishing and contesting fees, treatment of confidential information, statutory exemptions, and effects on interstate commerce all may determine whether an EPR program survives constitutional scrutiny.