Federal Court Requests Supplemental Briefing In Oregon EPR Challenge

The federal district court presiding over National Association of Wholesaler-Distributors v. Feldon has issued a new scheduling order that provides insight into the next phase of the groundbreaking challenge against Oregon’s Extended Producer Responsibility (EPR) law. Following a five-day bench trial in July and the parties’ post-trial briefings, filed on July 31, 2026, Judge Michael H. Simon concluded that oral argument is unnecessary. Instead, the court has requested supplemental briefing on a single, discrete issue: whether the Oregon Plastic Pollution and Recycling Modernization Act’s (RMA) exemption for certain Oregon public bodies that qualify as “small producers” under Oregon Revised Statutes (ORS) 459A.863(32)(b) and ORS 459A.872(1) is facially discriminatory in violation of the Dormant Commerce Clause.

Under the court’s schedule, Defendant Leah Feldon, Director of the Oregon Department of Environmental Quality (DEQ), must file a supplemental brief by August 7, 2026, and Plaintiff National Association of Wholesaler-Distributors (NAW) may respond by August 10, 2026. The court’s request is notable because it narrows the focus to one specific statutory provision rather than requesting additional briefing on the broader constitutional issues presented throughout the litigation. In their post-trial briefs, the parties advanced fundamentally different views of the RMA. NAW argued that the statute impermissibly burdens interstate commerce and delegates core governmental authority to a private Producer Responsibility Organization (PRO) without adequate constitutional safeguards. Oregon argued that the RMA applies evenhandedly to in-state and out-of-state producers, provides constitutionally sufficient procedural protections, and reflects a permissible legislative choice to implement the program through PROs operating under Oregon DEQ oversight.

The court’s scheduling order should not be read as an indication of how it ultimately intends to rule. The request for supplemental briefing suggests, however, that the court believes the record is sufficiently developed on the principal due process and delegation claims and seeks additional analysis only on the narrow Dormant Commerce Clause question concerning the statutory exemption.

The case is expected to have significance beyond Oregon. As states continue implementing packaging EPR programs, litigation will play a role in shaping program scope and implementation. Judge Simon’s opinion will be one of the first federal decisions to address major legal questions about domestic packaging EPR programs. Precedent set in this case likely will steer the direction of certain aspects of state packaging EPR programs and regulations.

Daily summaries of the past proceedings for this case can be reviewed at Bergeson & Campbell, P.C.’s (B&C^®) Product Stewardship Blog^TM. B&C will continue to monitor the supplemental briefing and provide updates as the case progresses toward a final decision.