Foley & Lardner LLP senior counsel Betsy Stone shared insights across the media on legal challenges to state extended producer responsibility (EPR) programs and their potential business and regulatory impacts.
In the Packaging Dive article, “California EPR lawsuit escalates as forthcoming Oregon ruling looms,” Stone analyzed ongoing federal court challenges to EPR laws.
Following a recent five-day bench trial in Oregon, she pointed to the judge’s decision not to seek additional briefing on the Dormant Commerce Clause, noting that “a court that declines supplemental briefing on a party’s lead theory has, in effect, reached a conclusion on that theory.”
Stone also observed that the court’s post-trial questions suggest a focus on procedural due process issues and point to a “high probability of a partial outcome” that preserves the core EPR framework while modifying certain provisions.
On the small-producer exemption issue, she described the request for additional briefing as “a favorable signal” and said any ultimate ruling may leave Oregon’s EPR program largely intact.
Looking beyond, Stone emphasized the broader implications of California’s EPR law, noting that a California-scale mandate could reshape national and multinational supply chain dynamics.
Speaking to Inside EPA, she examined the National Association of Wholesale-Distributors (NAW) strategy in its challenge to California’s SB 54 EPR plastics recycling program.
Stone observed that NAW has “stayed broad, seeking producer-wide relief at the preliminary injunction stage rather than narrowing as it did in Oregon,” despite broader injunctions being more difficult to obtain. She attributed this to the “coalition of 17 attorneys general joining the motion” which “likely gives NAW’s counsel more confidence to maintain that expansive scope.”
“The plaintiffs’ preliminary injunction motion … is consistent with the original complaint in scope, both seek producer-wide relief,” she added. “The distinction worth noting is how NAW’s counsel has handled the preliminary injunction stage differently than it did in Oregon.”
Stone’s commentary also appeared in a second Inside EPA article and Resource Recycling, Inc.
