Extended producer responsibility (EPR) has moved from a policy aspiration to a compliance reality. Over the past several years, a growing number of states have enacted packaging EPR laws that shift the cost and logistics of managing packaging waste onto the producers who put that packaging into the marketplace. Oregon has been at the leading edge of that movement. But a recent decision from the U.S. District Court for the District of Oregon is a reminder that first-mover programs also draw the first, and often the most consequential, legal challenges — and that industry plaintiffs are prepared to test these statutes against long-standing constitutional limits on state regulation.
In National Association of Wholesale Distributors v. Feldon, 2026 U.S. Dist. LEXIS 51720 (D. Or.), Judge Michael H. Simon declined to dismiss the National Association of Wholesale Distributors’ (NAW) constitutional claims and preliminarily enjoined enforcement of Oregon’s Recycling Modernization Act (RMA) against NAW and its members.
For producers navigating an increasingly dense patchwork of state packaging laws, the ruling is significant, signaling that dormant Commerce Clause and Due Process theories remain viable vehicles for challenging these programs — at least at the preliminary stage.
The RMA and Oregon’s EPR Framework
The RMA established one of the nation’s first comprehensive packaging EPR regimes. Like other EPR laws, it requires producers of covered packaging and paper products to fund and help operate the systems that collect, sort, and recycle those materials.
The program is built around a producer responsibility organization (PRO) that acts as the operational and financial hub for regulated producers. The PRO develops a program plan, collects fees from participating producers, and channels those funds into recycling infrastructure and services. Oregon’s Department of Environmental Quality (DEQ) supplies the regulatory oversight — reviewing and approving the program plan, adopting implementing rules, and enforcing compliance.
That architecture — a state-mandated program administered day-to-day by a private organization and supervised by an agency — is precisely what NAW put in the constitutional crosshairs.
NAW’s Constitutional Challenges
NAW, a trade association representing wholesale distributors, challenged the RMA on several constitutional grounds:
- Dormant Commerce Clause. NAW argued the RMA discriminates against or unduly burdens interstate commerce.
- Procedural Due Process. NAW contended the mechanisms available to producers to contest fees fall short of constitutional requirements.
- Non-delegation. NAW also raised concerns about the delegation of governmental authority to a private PRO.
The Court’s Rulings
Motions to dismiss denied. Judge Simon denied the defendants’ motions to dismiss the dormant Commerce Clause and Due Process claims, finding NAW’s allegations sufficient to proceed. That threshold ruling matters: It means the court viewed these theories as legally cognizable as pleaded, allowing the case to advance past the pleadings.
Preliminary injunction granted. The court went further and enjoined enforcement of the RMA against NAW and its members pending resolution of the merits. Applying the Ninth Circuit’s sliding-scale standard from Alliance for the Wild Rockies v. Cottrell, 632 F. 3d 1127, 1131-32 (9th Cir. 2011), the court found that NAW had raised serious questions going to the merits, faced a likelihood of irreparable harm, and showed that the balance of hardships tipped sharply in its favor, with an injunction consistent with the public interest.
Why the harm was “irreparable.” The court’s irreparable-harm analysis turned on a familiar but powerful point: The compliance costs the RMA imposes are significant and unrecoverable.
Because state sovereign immunity would bar NAW’s members from recovering fees and compliance expenditures from the state, money spent complying now could never be clawed back if the law were later struck down. That combination — real, imminent costs with no post-hoc remedy — converted what might otherwise be ordinary economic burdens into irreparable injury, and it drove the court’s conclusion that the hardships weighed sharply against enforcement pending final judgment.
It is important to keep the procedural posture in view. This is a preliminary decision. The court did not hold the RMA unconstitutional; it held that NAW’s claims are serious enough to litigate and that the status quo should be preserved while they are. The ultimate merits remain to be decided.
Broader Implications for Packaging EPR
Oregon is not alone. Comparable packaging EPR programs are in various stages of implementation elsewhere, including in California and Colorado. Because these statutes share common elements — producer fees, a private PRO, and agency oversight — a preliminary ruling that credits dormant Commerce Clause and Due Process challenges to one program will likely reverberate across all of them.
The signal for stakeholders is twofold. First, structural features matter. Fee calculations, exemptions, and the procedures for contesting charges are now demonstrated points of constitutional vulnerability, and program architects and challengers alike will scrutinize them. Second, the sovereign-immunity/irreparable-harm pathway is a meaningful strategic lever. Where a state cannot be made to refund compliance costs, regulated parties have a credible argument for preliminary relief — a dynamic that could reshape the litigation calculus for EPR programs nationwide.
Conclusion
Feldon is an early but instructive marker in the maturation of packaging EPR. It shows that these programs will be tested against the dormant Commerce Clause and Due Process, that the sovereign-immunity dimension of irreparable harm can support preliminary relief, and that industry stakeholders have both litigation and regulatory avenues to protect their interests. We will continue to track the case and related developments in the Environmental Law Monitor Blog.