Oregon’s Packaging EPR Law Is Constitutional

On August 27, 2026, after a 5-day bench trial, U.S. District Judge Michael H. Simon upheld in its entirety Oregon’s Plastic Pollution and Recycling Modernization Act (RMA), the state’s Extended Producer Responsibility (EPR) law, reversing an earlier preliminary injunction (PI) that captured stakeholder attention. This is the first federal court decision upholding a packaging EPR law against constitutional arguments.

Case Background

The National Association of Wholesaler-Distributors (NAW) sued the Oregon Department of Environmental Quality (DEQ) in 2025, challenging the RMA’s constitutionality on several grounds, all but two of which were dismissed earlier this year. On February 6, 2026, the Court granted a PI in favor of NAW and its members, finding that “serious questions” existed as to the merits of their two remaining claims: under the Due Process Clause and the Dormant Commerce Clause. As a result, DEQ was barred from enforcing the RMA during the pendency of the litigation. Of note, the PI was limited to NAW’s members (with membership determined as of the date of the Court’s order); the PI did not extend to or affect the operations of the Circular Action Alliance (CAA), Oregon’s designated Producer Responsibility Organization (PRO), which was not named in the lawsuit.

The Court’s Ruling

With regard to NAW’s first argument that the RMA violates the Dorman Commerce Clause, the Court found that NAW did not present sufficient evidence at trial that the law had an outsized benefit for state companies vis-à-vis interstate commerce. On the record before it, and in light of binding Supreme Court and Ninth Circuit precedent, the Court held that the RMA did not unduly burden interstate commerce in favor of state companies. In reaching this conclusion, the Court discounted NAW members’ testimony regarding amount and effect of fees as “anecdotal evidence” and “speculation.”

With regard to NAW’s second argument that the RMA violates the Due Process Clause, the Court found that the only enforcement mechanism in the RMA itself—DEQ’s ability to assess civil penalties—has “substantial procedural protections,” which were “more than adequate” under the Fourteenth Amendment. Further, as “DEQ retains ultimate decision-making authority” over the PRO, the Court concluded that the RMA does not violate the private nondelegation doctrine. As for the penalty provisions in CAA’s producer agreement, the Court noted that “the Oregon Addendum permits the producer to go to court to seek to enjoin arbitration proceedings until after any civil penalty proceedings with DEQ have been exhausted.”

Implications of the Ruling

The immediate impact of the Court’s ruling is straightforward: the February 6, 2026, injunction, which previously shielded NAW and its members from DEQ enforcement, has now been lifted. DEQ enforcement proceedings can resume, at least for the time being. NAW has said that it is considering its next steps in Oregon, which could include an appeal to the Ninth Circuit. Stakeholders are continuing to assess options, costs, and potential risks—including possible fees and penalties from both DEQ and CAA—in light of the ruling.

Other Actions

As we wrote here, a separate class action challenging the RMA, Lollicup v. Feldon, was recently filed on behalf of obligated producers that are not NAW members. The parties in that case had agreed to a stay, pending the outcome of the NAW case. A joint status report is due in the Lollicup case by September 10, so additional insights will be forthcoming.

The NAW ruling may affect ongoing legal challenges to other state packaging EPR laws, including Colorado, which NAW also challenged at the end of July, and California, which was the subject of another legal challenge brought by a coalition of 17 state Attorneys General and NAW in June. Motions for a PI have been filed in both cases. While the NAW ruling is not binding on other courts that may examine the constitutionality of other states’ EPR laws, it is worth noting that these other challenges raise similar constitutional questions.

Relatedly, the ongoing litigation involving a First Amendment challenge to SB 343, California’s Truth in Recycling Law, continues with some procedural updates. Following the issuance in July of a PI barring enforcement of SB 343 while the case proceeds, two non-profit organizations, Earth Island Institute and Californians Against Waste, sought to intervene in the case in defense of SB 343. While the court considers their motion, which plaintiffs opposed, an Early Neutral Evaluation (ENE) conference was set and jointly opposed by the parties. Over the parties’ objections, the ENE is now set for October 28.

We continue to monitor EPR and SB 343 litigation developments.