Colorado Seeks Partial Dismissal of NAW’s Packaging EPR Lawsuit
Colorado is asking a federal court to dismiss two of the four constitutional claims in the National Association of Wholesaler-Distributors’ (NAW) lawsuit against the state’s packaging extended producer responsibility (EPR) law, mimicking a strategy that succeeded in Oregon.
The Colorado Department of Public Health and Environment (CDPHE) filed a motion on Oct. 13 targeting NAW’s private nondelegation and unconstitutional conditions claims, both brought under the 14th Amendment’s Due Process Clause. However, the motion did not touch NAW’s dormant Commerce Clause claim or its two First Amendment claims, which would move forward regardless of how the court rules.
NAW brought the lawsuit, NAW v. Ryan, in July and is seeking a preliminary injunction to block the law. In a Sept. 28 filing, the association argued that Colorado had not answered its central constitutional arguments.
Colorado’s new motion leans heavily on an Aug. 27 ruling by a district court in Oregon that upheld that state’s EPR law for packaging. Colorado described the two EPR laws as nearly identical, stating that NAW’s challenge should fail on similar grounds.
On the nondelegation claim, Colorado said that NAW must first show a protected property or liberty interest is at stake, the same hurdle the Oregon court found NAW’s other lawsuit did not clear. The state also contended the program plan attached to NAW’s own complaint undercuts the claim that the Circular Action Alliance (CAA), the producer responsibility organization (PRO) that runs Colorado’s EPR program, operates without meaningful oversight. According to Colorado, the approval process for CAA’s plan included 28 public advisory board sessions, a public comment period, and several amendments from the CDPHE.
On the unconstitutional conditions claim, the state contended that distributors and other businesses have multiple choices. Colorado said producers can join CAA, submit an individual program plan, or seek an exemption through rulemaking. NAW has called the individual-plan option cost-prohibitive and illusory, but Colorado countered that the Lubricants Packaging Management Association submitted its own plan that earned CDPHE approval after making amendments.
Colorado’s motion also addressed a key distribution industry complaint that participants lack access to the courts. The state said CAA’s base participation agreement allows court proceedings if mediation fails, while the Colorado addendum requires arbitration but preserves the right to seek injunctive relief in court. Disputes over dues to the PRO can be appealed to the advisory board, followed by judicial review, which the state noted applies to 15 of 26 covered material categories.
NAW has maintained that distributors do not design packaging or have a meaningful way to contest fees set by the CAA. In addition to the Colorado lawsuit, the association has appealed the ruling in Oregon and is part of a 17-state coalition that filed a lawsuit against a similar EPR packaging law in California.