Overview
On August 27, 2026, a federal judge in the District of Oregon upheld Oregon's packaging extended producer responsibility (EPR) law after a five-day bench trial, ruling in favor of the state and against the National Association of Wholesaler-Distributors (NAW) in National Ass'n of Wholesaler-Distributors v. Feldon, No. 3:25-cv-01334-SI (D. Or. Aug. 27, 2026). The court rejected all of plaintiff's surviving claims that Oregon's EPR program violates the dormant Commerce Clause and the Due Process Clause of the US Constitution.
As the first packaging EPR case to reach a decision on the merits, NAW v. Feldon is a bellwether that is likely to influence outcomes of similarly structured cases in other states. The due process rulings are especially significant: because the court interpreted what the US Constitution requires, those interpretations apply regardless of who is suing, and other courts may find them persuasive.
Bottom line: Producers covered by Oregon's EPR law should plan to comply now rather than waiting to see what happens on appeal.
Key Takeaways
- Oregon's EPR law survives constitutional challenge. The court rejected all dormant Commerce Clause and Due Process Clause claims against Oregon's packaging EPR program.
- Bellwether decision for other states. This is the first packaging EPR case resolved on the merits. The outcome is likely to influence pending EPR litigation in other states raising similar claims, such as the parallel challenge in Colorado.
- Due process holdings carry broad weight. The court's interpretations of what the US Constitution requires regarding delegation to a private producer responsibility organization (PRO) and the adequacy of administrative process are not fact-bound and could prove persuasive in other courts.
- PRO participation was treated as voluntary. The court held that no producer is required to join Circular Action Alliance (CAA), the sole currently approved PRO in Oregon, because producers can form their own PRO or use the law's private-recycling exemption. This reasoning largely insulates PRO fee-setting from due process attack.
- Comply now. With judgment now entered, the preliminary injunction is over, and an appeal will not automatically reinstate it. Producers covered by Oregon's EPR law should not wait for the appeal process to play out.
Background and Procedural History
The lawsuit was filed by NAW on July 30, 2025, against several Oregon state defendants; the sole remaining defendant is Leah Feldon, in her official capacity as Director of the Oregon Department of Environmental Quality (DEQ).
On February 6, 2026, the court granted NAW a preliminary injunction pending a trial on the merits, but the injunction applied only to NAW and its members and was based narrowly on the court's finding of "serious questions" arising from NAW's claims under the dormant Commerce Clause and the Due Process Clause of the US Constitution. The court dismissed NAW's federal Equal Protection and Unconstitutional Conditions claims and all claims under the Oregon Constitution (including the state nondelegation theory). NAW's federal private nondelegation argument was not dismissed and continued as part of NAW's Due Process Clause claim. NAW had the option to replead its dismissed claims but chose not to do so.
The August 27 Decision
On August 27, 2026, the court issued its decision, rejecting NAW's surviving claims that the Oregon EPR program violates the dormant Commerce Clause and Due Process Clause of the US Constitution.
The court's conclusions rest on a full evidentiary record: a five-day bench trial featuring 13 witnesses and 57 exhibits, supplemented by nine amicus briefs, followed by detailed findings of fact and conclusions of law. Because several of NAW's claims failed on the evidence, those factual findings will be reviewed only for clear error on appeal—one reason the decision may prove difficult for NAW to overturn, even as challengers in other states remain free to build a stronger record.
Dormant Commerce Clause Claims
NAW argued that Oregon's EPR program violates the dormant Commerce Clause on three theories: it discriminates against interstate commerce, imposes an unreasonable user fee, and places an undue burden on interstate commerce. The court rejected all three arguments. Several of NAW's arguments failed for want of proof rather than doctrine, although the court also resolved a number of points as matters of law and rejected others on independent alternative grounds.
Discrimination
NAW's discrimination claim had three parts. First, it argued Oregon passed the law intending to favor its own businesses. The court disagreed, reading a 2023 DEQ statement on the law's fiscal and economic impacts differently than NAW did and giving it little weight because the agency wrote it two years after the legislature acted.
Second, NAW argued the statute discriminates in its express terms, pointing to the exemption for government entities, which covers Oregon public universities but not their out-of-state counterparts selling into Oregon. This argument failed because NAW never proved that its members actually pay higher fees as a result, and because Oregon public bodies pay taxes that fund the state's recycling system and, thus, are not genuinely comparable to out-of-state entities.
Third, NAW argued the law disadvantages out-of-state companies in practice, targeting the exemptions for small producers and for restaurants and food carts. This argument failed because NAW relied on hypothetical companies rather than evidence that the exemptions actually disadvantaged out-of-state companies.
The court also noted, in a footnote, that even if an appellate court disagreed about the government-entity exemption, the remedy would be to extend that exemption to out-of-state entities rather than strike the law—so, a win on that point would not relieve producers of compliance.
User Fees
On user fees, the court declined to call the fees charged by CAA, the only PRO currently approved in Oregon, excessive despite a substantial 2025 surplus—$145.5 million collected, $56.5 million spent, and roughly $90 million unspent—reasoning that CAA is in its startup phase and that the surplus is projected to reduce future fees.
Undue Burden
On undue burden, NAW proved hardship at individual firms but never quantified a market-wide effect on interstate commerce, which National Pork Producers Council v. Ross, 598 U.S. 356 (2023), now requires. The court added that even if NAW had made that showing, the burdens would not be "clearly excessive" when weighed against Oregon's interests in managing waste and protecting public health—an independent reason the claim failed.
Due Process Claims
NAW's due process claims had two parts. First, NAW argued that Oregon effectively delegated government regulatory power to CAA, a private organization governed by NAW members' own competitors, which sets the fees those members must pay. Second, NAW argued that producers have no adequate way to challenge a fee assessment they believe is wrong. The court rejected both arguments.
This part of the decision matters more than the rest for what comes next. The court rejected the dormant Commerce Clause claims largely because NAW had not proved its case. Therefore, another challenger elsewhere could raise the same theories with stronger evidence. But the court rejected the due process claims by interpreting what the US Constitution requires. Because those interpretations do not turn on NAW's evidence, they could prove persuasive in other cases—although, as a federal district court decision, the ruling does not bind any other court.
As a threshold matter, the court did not decide whether producers even have a constitutionally protected interest in the money at stake; it assumed one for argument's sake and moved to the merits. On the delegation argument, the court held that a private organization may help administer a program so long as the government agency keeps final decision-making authority, and the court found that DEQ kept its authority through its review and approval of CAA's program plan and fee methodology. The court acknowledged that DEQ did not request, and has never reviewed, the proprietary formula and underlying data points that CAA uses to generate the cost-to-manage values on which its fees are based. It held that this did not render the law unconstitutional, however, because DEQ substantively reviewed the cost-to-manage values themselves as set out in CAA's plan, directed CAA to make several changes to its fee methodology, and ultimately approved it—and under the governing standard, a PRO's fee-setting recommendations cannot take effect without the agency's approval, regardless of how freely that approval is given.
The court then added a broader and, for producers, more consequential point: no producer is actually required to join CAA. A producer can form its own PRO or use the law's private-recycling exemption. Because the court treated participation in CAA as voluntary, it concluded that paying CAA's fees does not deprive producers of anything that the Constitution protects, which by itself defeats NAW's due process claim, independent of anything else. On this reasoning, CAA's self-interest, the limits of DEQ's review, and the terms of CAA's contracts simply drop out of the legal analysis.
On NAW's second due process claim, the court held that DEQ's own enforcement process—advance notice, an opportunity to correct the problem, a hearing before an administrative law judge, and an appeal, with no payment due until appeals are exhausted—gives producers more than enough due process.
The court also specifically found that NAW did not raise its concerns before the Oregon legislature or DEQ during the legislative and rulemaking processes for Oregon's packaging EPR law. This factual finding could support an inference that the absence of a contemporaneous record of NAW's engagement weighed against its legal arguments, but the court did not expressly say that it viewed NAW's lack of engagement unfavorably.
Status of the Injunction and Next Steps
With judgment now entered, the preliminary injunction is over, and producers covered by Oregon's EPR law should plan to comply now rather than waiting to see what happens on appeal. The injunction had been granted only because the court saw "serious questions" that needed to be resolved at trial, and the trial resolved those questions against NAW.
The court issued its findings and conclusions on August 27, 2026, and entered judgment for the state on August 28, 2026, which dissolved the injunction and started the clock for an appeal. NAW may appeal to the US Court of Appeals for the Ninth Circuit, generally within 30 days after entry of judgment, but an appeal would not by itself restore the injunction; NAW would have to separately obtain a stay pending appeal, first from the district court and then, if refused, from the Ninth Circuit.
Other Pending EPR Litigation
A number of other packaging EPR lawsuits are pending in other states. Steptoe is monitoring these matters and will report on significant developments as they occur.
