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.”
The court’s post-trial questions, she said, 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.
In the Barron’s article, “Oregon Recycling Ruling Gives Supporters Hope in California, Colorado,” Stone noted that, while the decision is not binding outside Oregon, it was issued by a federal court within the Ninth Circuit, which includes California.
She also described the ruling as “the first merits decision on a constitutional challenge to a modern packaging EPR law anywhere in the country and it went comprehensively for the state, rejecting every theory the challenger advanced.”
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.
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