Our Take on the Likely Outcome of the NAW v. Feldon Litigation Challenging Oregon's EPR Program.

Now that the trial is over for National Association of Wholesaler-Distributors (“NAW”) v. Feldon, a case challenging Oregon’s landmark Plastic Pollution and Recycling Modernization Act (“RMA”) in the U.S. District Court for the District of Oregon, many of us are waiting with bated breath for the final decision — and speculating on the outcome.

Based on the court's supplemental briefing requests, we are predicting that the court is unlikely to invalidate the basic architecture of the program. More likely, the court may target the exemption for Oregon public bodies — or the court could enjoin the Oregon Department of Environmental Quality (“DEQ”) from approving the Program Plan submitted by the producer responsibility organization (“PRO”) to DEQ unless the Plan provides for greater transparency and/or participation in setting fees.

The plaintiffs in NAW v. Feldon assert constitutional challenges to Oregon’s extended producer responsibility (“EPR”) program and have also brought or joined similar challenges to Colorado's and California's EPR programs. Unlike claims that turn on Oregon-specific statutory language, the Dormant Commerce Clause claims in NAW v. Feldon attack the fundamental structure common to other state EPR programs — a single state-selected PRO funded through interstate producer fees — whereas the Due Process claims generally single out specific features (some of which are unique to Oregon’s program).

After trial, the court asked for a number of supplemental briefings related to the Due Process Clause but did not request any additional briefing on the Dormant Commerce Clause, leading some to speculate that the court had already decided the Dormant Commerce Clause issues in the plaintiffs' favor but was not convinced by the Due Process Clause challenges. 

On August 6, 2026, however, Judge Simon asked for one more round of supplemental briefing — specifically, whether the RMA's exemption for certain Oregon public bodies that qualify as “small producers” is facially discriminatory under the Dormant Commerce Clause. A judge planning to strike down the program under a broad Dormant Commerce Clause challenge would have little reason to drill into one narrow issue.

Meanwhile, the court’s earlier requests for supplemental briefings about the Due Process Clause signaled that the court has concerns that the case is not ripe and/or that the court could not fashion a remedy for some of the alleged constitutional deficiencies — particularly as to provisions in the producer agreements with the PRO (e.g., the arbitration clause) because the PRO is not a party in the litigation. The court, however, would presumably have authority to enjoin the DEQ from approving the PRO’s Program Plan to the extent the PRO adopted measures that the court deemed unconstitutional — such as the lack of transparency in setting fees.

In the supplemental briefing recently requested by the court, the plaintiffs have argued that any constitutional deficiency — such as the exemption for Oregon public bodies — is sufficient to overturn the entire EPR program. In a response requested by the court and filed this week, the DEQ claims that invalidating the entire program based on the unconstitutionality of a single provision would be an abuse of discretion, citing the Oregon law on severability, which allows displacement only if the statute says otherwise, the valid and invalid parts are inseparably interdependent, or the remainder can't function without the invalid part. ORS 174.040. 

Whatever the outcome, this case will be a bellwether for EPR programs nationally, as pending challenges to other states' programs raise many of the same claims. That said, other state challenges also raise different claims (e.g., First Amendment challenges) and different statutory schemes, meaning even after a final decision in NAW v. Feldon, the disposition of litigation in other states remains an open question.  Stay tuned for our analysis once the court rules.