The National Association of Wholesaler-Distributors (NAW) wants its members excluded from Oregon EPR fees until a federal appeals court decides whether the law is constitutional.
NAW filed a motion on Oct. 19 asking the US District Court for the District of Oregon to stay its judgment in NAW v. Feldon while the association’s appeal is pending before the US Court of Appeals for the Ninth Circuit. If granted, the stay would restore the protection NAW members had from February until late August, when US District Judge Michael H. Simon upheld Oregon’s SB 582 and dissolved the preliminary injunction.
Circular Action Alliance (CAA), Oregon’s designated producer responsibility organization, will send its next round of invoices to NAW members in January 2027. The Ninth Circuit isn’t expected to hear argument until months after that.
That leaves members with two options, according to NAW. Those who pay may not recover the money if the RMA is later struck down. Those who don’t could face compounding late fees and enforcement by the Oregon Department of Environmental Quality (DEQ), which can issue civil penalties of up to $25,000 per day.
When Simon granted the preliminary injunction in February, he found that this bind caused “irreparable harm” whichever way a member chose. NAW argues nothing about it has changed.
“Our members shouldn’t have to face the threat of enforcement while the Ninth Circuit decides whether this law is constitutional,” NAW President and CEO Eric Hoplin said. “A stay keeps our members where they’ve been since February and gives the appeals court room to do its job.”
Timeline
NAW’s motion leans on the court’s own record. In February, Simon found NAW had raised serious questions about whether the RMA violates the dormant Commerce Clause and the Due Process Clause.
He narrowed the case to those two claims and later limited the injunction to companies that were NAW members as of the February order.
After a five-day bench trial in Portland in July, Simon ruled against NAW on both claims. His Aug. 27 decision found that the law’s small-producer exemptions don’t unlawfully favor Oregon businesses and that NAW hadn’t shown the RMA places a significant burden on interstate commerce compared with its benefits.
On due process, Simon found NAW hadn’t established a property interest DEQ infringed, though he called the question a close call.
NAW filed its notice of appeal in September. It argues that the “serious questions” standard from February still applies and that the Ninth Circuit should answer those questions before members pay.
Karen Harned, NAW’s director of litigation and legal policy, said the state’s own track record makes the case.
“Oregon’s program continued to operate without disruption under the previous injunction, showing the state won’t be harmed from a stay,” Harned said. “Yet, without a stay, NAW members stand to lose their constitutional rights. This inequity is exactly what a stay pending appeal is intended to address.”
The association has argued throughout the case that its members are poorly positioned to absorb EPR costs.
Harned told Resource Recycling in July that NAW members operate on average profit margins of 3% to 5%, thinner than the retailers and manufacturers also paying into EPR programs.
Beyond Oregon
The Oregon fight is one of many that continue in a broader legal campaign. NAW is the sole business plaintiff in a 17-state coalition, led by Nebraska Attorney General Mike Hilgers, challenging California’s SB 54, the Plastic Pollution Prevention and Packaging Producer Responsibility Act. It has also filed a separate federal challenge to Colorado’s Producer Responsibility Program for Statewide Recycling Act (HB22-1355), raising claims similar to those in Feldon. Both cases are ongoing.
Simon’s ruling isn’t binding on courts in California or Colorado. A Ninth Circuit decision would carry more weight, though, since California sits within the circuit. A separate class action against the RMA, Lollicup USA, Inc. v. Feldon, filed in June on behalf of non-NAW producers, is pending before Simon.
Until the court rules on the stay, NAW members remain subject to the RMA like every other obligated producer in Oregon.
