Oregon Judge Rules: AF&PA Cannot Join NAW's EPR Lawsuit

A federal judge in Oregon this week issued new clarifications about who is covered by a temporary injunction against the state's packaging extended producer responsibility (EPR) law, and placed restrictions on other groups seeking to join an existing lawsuit by the National Association of Wholesaler-Distributors (NAW).

In February, NAW won a preliminary injunction that temporarily prevented the Oregon Department of Environmental Quality (DEQ) from enforcing the Recycling Modernization Act against NAW members. On Monday (April 6), U.S. District Judge Michael H. Simon clarified that the injunction applies only to companies that were NAW members as of February 6, and that companies joining afterward are not exempt. The case is scheduled for trial in July.

Additionally, the court on Wednesday denied a motion by the American Forest & Paper Association (AF&PA) and other business groups to intervene in the NAW case, and consequently dismissed their preliminary injunction motion as moot. The judge found that with only months until trial, allowing intervention could disrupt or delay the proceedings.

Oregon is the first state in the U.S. to implement a packaging EPR law, with producer responsibility organization Circular Action Alliance responsible for collecting related fees.

The latest developments in the case stem from a motion for reconsideration, or at least a request for clarification of the injunction's scope, filed by defendant Leah Feldon, director of the Oregon DEQ. Judge Simon denied the motion for reconsideration but granted the request to clarify the injunction's scope.

Oregon regulators worry about implementation risks

In his latest status report, the judge cited DEQ's statements that the agency finds it difficult to predict how the ongoing litigation and the preliminary injunction will affect the financial sustainability of the EPR program.

DEQ filed its motion for reconsideration on the same day as the March deadline for producers to submit the first installment of 2026 fees. DEQ told the court that "fees received by the March 6 deadline are sufficient to keep the program running through July, but if the trial date is forced to be postponed, the funding situation after July remains uncertain."

Court documents state: "NAW argues that, based on its own incomplete membership list provided on March 6, the producer responsibility organization (PRO) membership fees at risk account for only 5.7%."

DEQ said the program's future financial condition could be at risk. The judge's status report states: "If the current preliminary injunction continues beyond July, continued refusal to pay fees based on that injunction could have a greater financial impact on the program."

DEQ also raised another issue: NAW has not provided a complete list of members benefiting from the injunction, partly due to confidentiality concerns. For DEQ, this "has caused administrative difficulties in program management and a lack of information about the injunction's impact on the program."

The documents quote DEQ as saying: "DEQ could not reasonably foresee that NAW would not or could not inform DEQ of who all its members are."

Before the judge clarified the injunction's scope, DEQ had reason to believe that "other producers have joined and will continue to join NAW after the injunction was issued, in order to evade paying fees."

Judge clarifies scope of preliminary injunction

In its recent filings to the court, DEQ argued that NAW's position on membership issues has been "shifting."

Court documents show that covered producers "have been contacting DEQ, claiming that as NAW members they are exempt from the act's fees," a factor that "makes it nearly impossible for DEQ to comply with the injunction while enforcing the law against non-NAW members."

In deciding not to extend the injunction's benefits to new members, the judge noted: "Other federal district courts have limited associational preliminary relief to members of the organization at the time the injunction was issued."

Court dismisses new parties to lawsuit as untimely

The court found that AF&PA's timing in seeking to join the NAW lawsuit was "untimely." Other groups seeking to join the NAW lawsuit include the Northwest Grocery Association and the Oregon Business & Industry Association.

AF&PA's intervention would expand the case to a new industry, which would increase the burden on DEQ in preparing for the July trial.

The court also found that AF&PA had no compelling reason to wait until March to file its motion. NAW obtained a preliminary injunction in early February, and DEQ subsequently sent letters stating it would continue to enforce the law against producers that are not NAW members. "AF&PA then waited more than a month before filing its motion to intervene on March 16, 2026—less than four months before trial," the documents state.

The status report also noted that AF&PA could still file its own constitutional lawsuit challenging the enforcement of the EPR law.

AF&PA said in an emailed statement: "We are disappointed that the court denied our motion to join the lawsuit challenging Oregon's Recycling Modernization Act. While we respect but disagree with the ruling, AF&PA remains fully committed to pursuing all available legal and strategic options to protect the interests of our members."

AF&PA said Oregon's implementation so far has resulted in higher-than-expected fees.

AF&PA stated: "We will continue to work closely with our partners and counsel to secure meaningful relief for our members and ensure that recycling policies are practical, fact-based, and do not increase costs for businesses and consumers across the supply chain."

What's next

The trial is scheduled to begin July 13. Karen Harned, NAW's director of litigation and legal policy, recently told Packaging Dive that NAW's top priority is preparing for the July Oregon trial, rather than launching challenges in other states.

Packaging EPR also faces legal challenges in Colorado, the second U.S. state to implement such a law. The Independent Lubricant Manufacturers Association (ILMA) said it has communicated with NAW and filed a lawsuit in Colorado state court last month, challenging the PRO structure and a provision that restricts disclosure of recycling program costs to customers.