In the last year, business groups, manufacturers, and even environmental groups and state attorneys general have filed an array of lawsuits challenging new state extended producer responsibility for packaging laws. None of the cases have yet been resolved, but their outcomes are poised to influence how states consider or write EPR policies, experts say.
Oregon
After filing a federal lawsuit nearly a year ago and securing a preliminary injunction earlier this year, the National Association of Wholesaler-Distributors is preparing to go to court next week. It marks the first packaging EPR trial in the United States. Oregon Department of Environmental Quality Director Leah Feldon is the defendant. A ruling is expected later this year.
Separately, manufacturer Lollicup USA — a subsidiary of Karat Packaging specializing in food serviceware — recently launched a class-action lawsuit against Feldon. Like NAW’s case, which it cited, Lollicup alleged in the federal lawsuit that Oregon’s EPR implementation violates the dormant commerce clause and the due process clause of the Fourteenth Amendment.
California
Nebraska Attorney General Mike Hilgers led 17 AGs in a federal lawsuit seeking to block enforcement of SB 54, alleging the EPR and source reduction law violates the commerce clause and due process clause. The named defendants were CalRecycle Director Zoe Heller and producer responsibility organization Circular Action Alliance.
NAW joined the case as a business plaintiff. “We just wanted to do something,” Karen Harned, NAW’s director of litigation and legal policy recently told Packaging Dive, noting California’s even bigger impact than Oregon. “We were really excited to team up with the states in this instance.”
The case is currently sealed.
Previous to that, on the other end of the spectrum, environmental groups Natural Resources Defense Council, Oceana and the Californians Against Waste Foundation also sued CalRecycle and its director. They took issue with SB 54’s finalized rules, which they believe do not align with the ambitious intentions of the law as written. In the most recent update to the court docket, on July 1 the American Chemistry Council and the Alliance of California’s Farmers and Ranchers motioned to intervene in the case.
Colorado
The state-level case brought by the Independent Lubricant Manufacturers Association challenges implementation of Colorado’s Producer Responsibility Program for Statewide Recycling Act.
While Circular Action Alliance is the primary PRO in the state, the Colorado Department of Public Health and Environment also approved an individual program plan from the Lubricants Packaging Management Association, meant to cover packaging that is not managed curbside for oil-based lubricants, grease, antifreeze, engine additives and other fluids used in transportation and mechanical applications. LPMA was founded by five major petroleum companies. ILMA in part took issue with the approval of this program plan and noted the burden on smaller manufacturers.
A spokesperson for ILMA said an update in the case is expected “within the next few weeks.”
Colorado was the second state to begin implementing an EPR for packaging law, after Oregon.
