Betsy Stone Weighs In on Implications of Landmark Oregon EPR Decision

Foley & Lardner LLP senior counsel Betsy Stone was quoted in the recent Inside EPA article in “Industry Faces Evidence Test As Courts Weigh Crucial Oregon EPR Ruling,” offering insight into the legal implications of Oregon’s ruling.

Addressing ongoing legal challenges to state EPR laws, Stone said, “The claim that a single state’s EPR law forces out-of-state producers to restructure nationwide packaging and compliance operations has real traction, similar to the dormant commerce clause claim.” She added, “But as seen in NAW v. Feldon, whether it wins depends on how well it’s briefed, what evidence the challenger brings, and the receptivity of the individual judge.”

“The constitutional theories didn’t change,” Stone said. “The problem was that the challengers couldn’t prove them.”

Stone further noted that while the Oregon ruling may raise the bar for dormant Commerce Clause and due process challenges, those arguments are “not foreclosed” in other jurisdictions. She emphasized, “If challengers in Colorado or California bring hard numbers on interstate burden and demonstrate actual discriminatory effects rather than hypothetical ones, they may fare better on the same constitutional theories.”

Stone’s commentary also appeared in a second Inside EPA article.

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