Justin Smith Discusses Legal Challenges to Packaging EPR Laws with Packaging Dive
Of Counsel Justin Smith (Washington, DC) spoke with Packaging Dive about the potential impact of a recent federal court decision upholding Oregon’s packaging extended producer responsibility (EPR) law on similar legal challenges across the country.
In “After Novel Oregon EPR Ruling, Attention Turns to Other Legal Battlegrounds,” Packaging Dive examines how the Oregon decision could shape pending challenges to packaging EPR programs in California and Colorado. The U.S. District Court for the District of Oregon recently rejected constitutional challenges to Oregon’s Plastic Pollution and Recycling Modernization Act, finding that the law did not violate the dormant Commerce Clause or Due Process Clause.
Justin noted that plaintiffs challenging packaging EPR laws still have multiple potential paths forward. He explained that an appeals court could reach a different conclusion and that the Oregon decision leaves room for litigants to develop additional factual evidence. Because Oregon’s program remains relatively early in implementation, Justin observed that a stronger factual record could support further litigation.
Justin also emphasized that differences among state EPR laws could affect the outcome of future cases. California’s law, for example, subjects certain out-of-state recycling activities to additional scrutiny, which Justin said could receive different treatment under the dormant Commerce Clause. He added that, because challenges to packaging EPR laws remain a relatively new area of litigation, the Oregon opinion “will absolutely get careful attention” from other federal district courts considering similar issues.
Beveridge & Diamond’s ESG, Sustainability and Product Stewardship, Global Supply Chains practice groups have extensive experience counseling individual companies and industry coalitions on EPR mandates. With offices in Seattle and San Francisco and lawyers across the Pacific Northwest, B&D’s experience includes coordinating with DEQ and CalRecycle on drafting and implementing EPR program regulations on behalf of potentially impacted clients. In addition, our Consumer Products industry group supports U.S. and multinational companies involved in the manufacture, distribution, transportation, or sale of consumer goods in a competitive and rapidly evolving market. We help clients navigate complex regulatory requirements throughout the product lifecycle. Visit our EPR hot topics page for additional resources.
