Extended Producer Responsibility (ERP) laws are becoming popular among states looking to tackle excessive waste. These laws require producers of covered products to register with producer responsibility organizations (PROs). PROs work with the state governments to develop rules for end-of-life recycling and issue fines to non-compliant members. Industry groups and companies are challenging a number of these laws, viewing their requirements as overly burdensome and unconstitutional. A Federal Court just ruled on one such case challenging an Oregon EPR law. The Court sided with the state of Oregon, finding the law was not unconstitutional. A recent O’Melveny memo analyzes the ruling and gives the following takeaways:
- “In National Association of Wholesaler-Distributors v. Feldon, the U.S. District Court for the District of Oregon rejected all constitutional challenges to the state’s Extended Producer Responsibility (EPR) law governing plastics and packaging, marking an early loss for opponents of the law.
- Despite the breadth of the ruling, several aspects of the court’s reasoning—particularly regarding fee reserves and the practical viability of alternative Producer Responsibility Organizations (PROs)—invite scrutiny on appeal.
- An appeal is anticipated. The decision may also influence pending EPR challenges in California and Colorado.”
This decision represents an early legal skirmish, not a definitive win for state EPR laws. The memo notes that an appeal is highly likely. Even if these laws survive court battles, there is the possibility that the federal government intervenes. Opponents may seek to pass federal laws or use agency rulemaking to preempt state EPR laws. For now, the District Court’s decision bodes well for challenges in California and Colorado, which are both facing similar challenges to the one brought against the Oregon EPR law.
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