NAW Seeks Stay of Oregon EPR Ruling Pending Appeal

The National Association of Wholesaler-Distributors (NAW) has asked a federal district court to stay its judgment that upheld Oregon’s extended producer responsibility law while the association appeals the decision.

A stay would restore the protection NAW members have had since February, when the court granted a preliminary injunction preventing enforcement of Oregon’s Plastic Pollution and Recycling Modernization Act (RMA), the state’s extended producer responsibility (EPR) law for packaging. FEDA is a federation member of NAW, but the courts have not yet addressed whether federation members are included in the injunction.

The timing of the motion for a stay is critical, as the Circular Action Alliance (CAA) — Oregon’s state-designated producer responsibility organization (PRO) — will send its next round of invoices to obligated producers in January 2027. That deadline will come months before the 9th U.S. Circuit Court of Appeals is expected to hear arguments. NAW warns that distributors that pay EPR fees may never recoup that money if the RMA is later held unconstitutional. However, distributors and other covered businesses that don’t pay could face compounding late fees and possible enforcement by Oregon’s Department of Environmental Quality (DEQ).

When the court granted the preliminary injunction, it found this double bind caused irreparable harm whichever way a NAW member chooses. In a new statement, NAW argues that nothing has changed.

“Our members shouldn’t have to face the threat of enforcement while the 9th 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.”

The district court ruled against NAW on Aug. 28. But when it granted the preliminary injunction in February, that same court found NAW had raised serious questions about the RMA’s constitutionality under the Dormant Commerce Clause and the Due Process Clause. Granting the stay will give the 9th Circuit the chance to answer those questions before distributors are forced to pay CAA.

“NAW has raised serious constitutional questions, and the distribution businesses NAW represents face harm they can’t undo if they’re forced to comply with Oregon’s burdensome EPR law before the 9th Circuit makes a decision,” said Karen Harned, NAW’s director of litigation and legal policy. “Oregon’s program continued to operate without disruption under the previous injunction, showing the state won’t be harmed from a stay. 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.”

NAW filed its notice of appeal with the 9th Circuit on Sept. 24. The association is also the sole business plaintiff in a 17-state coalition challenging California’s EPR law and has filed a separate challenge to Colorado’s EPR law. Both cases are ongoing.