Multiple legal challenges to state packaging EPR laws remain in progress, and the National Association of Wholesaler-Distributors could still appeal a recent federal court ruling that upheld the constitutionality of Oregon’s packaging EPR program. But already, there are some takeaways from that first-of-its-kind Oregon decision that legislators in other states can consider in future packaging EPR policymaking.
Extended producer responsibility advocates welcomed Judge Michael H. Simon’s evaluation of NAW’s inaugural packaging EPR lawsuit as a positive sign for future policymakers.
“The ruling, to me, says that the law that was written was pretty airtight,” and strengthens the basis for producer responsibility, said Scott Cassel, founder and CEO of the Product Stewardship Institute. PSI has been involved in policy development for years and Cassel testified during the Oregon trial.
Cassel views the recent wave of packaging EPR legal challenges as part of the refinement process in the paradigm shift that the nation is undergoing with producer responsibility.
“The legal process is a very key aspect of elucidating this emergence of a new system in the United States,” and how it should balance government, industry and environmental advocates’ interests, he said. “I was very impressed by how the legal process could unfold issues and uncover questions and really lay things out in a clear fashion that is hard to come by through conversation.”
Cassel also said it’s important to remember that Oregon’s law is the first to be implemented in the U.S. As with any first, “there can be improvements made, and that takes people to work together and to listen to the other side and want to make that program better so that it functions more efficiently, more effectively, has lower cost, greater clarity,” he said.
Going forward, PSI will continue work with its state harmonization task force and collaboration with state and local governments to glean lessons learned and what they think needs to be clarified in future bills to make them more efficient and effective.
John Hite, senior director of public policy and government affairs at The Recycling Partnership, echoed that optimism for future policymakers.
“The judge’s decision was incredibly clear,” he said. “I would imagine that that gives policymakers a lot of confidence moving forward with new policy.”
The Recycling Partnership had filed an amicus brief in the Oregon case related to NAW’s dormant Commerce Clause arguments. That was an area where Simon’s ruling ultimately reflected “no real ifs, ands, or buts,” Hite said.
Producer responsibility organization structure and oversight were another area of contention in the case.
For example, Oregon’s law was written with a unique requirement that a PRO could only form if it had a certain level of market share, Hite noted.
“I think most other states have a provision in place that allows for an individual producer to comply on their own or to join a PRO,” he said. This is a “pressure valve” that “helps ease the due process concerns that producers or their trade associations might have,” he added.
