Judge Upholds Oregon EPR Program

On August 27, 2026, Judge Michael H. Simon issued a Finding of Fact and Conclusions of Law (the Decision) in the bench trial for National Association of Wholesaler-Distributors v. Feldon, holding that the Oregon Department of Environmental Quality’s (DEQ) Extended Producer Responsibility (EPR) program, run by the Producer Responsibility Organization (PRO) Circular Action Alliance (CAA), does not violate the Dormant Commerce Clause or the Due Process Clause of the U.S. Constitution. This decision stems from a challenge brought by the National Association of Wholesaler-Distributors (NAW), alleging legal and procedural deficiencies against Oregon’s EPR program. This decision is likely to shape ongoing litigation involving other state EPR programs, including current challenges to California’s EPR program.

The Decision analyzes three theories NAW posited under the Dormant Commerce Clause and two theories of argument brought under the Due Process Clause. Judge Simon found that the purpose, text, and effect of the Oregon Plastic Pollution and Recycling Modernization Act (RMA), Oregon’s EPR statute, did not discriminate against interstate commerce. Judge Simon also found that NAW did not sufficiently establish a property interest that Oregon DEQ had infringed upon for purposes of a Due Process claim, although Judge Simon acknowledged that the question presented a “close call.”

Many of NAW’s arguments offered during this litigation revolved around issues such as improper delegation of authority to CAA, lack of transparency and due process surrounding the fee-setting process, and economic hardships that NAW members have faced as an outcome of the EPR program’s implementation. NAW’s concerns echo those of other producers, not only regarding Oregon’s program, but regarding aspects of the six other state EPR programs for plastics and packaging that have been adopted domestically. Litigation against other programs, such as California’s EPR program and Colorado’s EPR program, cites many of the same arguments that NAW brought against Oregon DEQ. Parties to ongoing litigation may shape their arguments and overall approach based on Judge Simon’s Decision. Maine, Maryland, Massachusetts, and Minnesota have also enacted comprehensive EPR laws.

Bergeson & Campbell, P.C. (B&C^®) provided daily summaries of the five-day bench trial, which ran from July 13 through July 17, 2026. B&C will publish further insight into this case, the legal arguments made during the trial, and the Decision in the following week on B&C’s Product Stewardship Blog^TM.Subscribe here.