Stacey Halliday and Jennifer Kwapisz Talk to Inside EPA about Oregon, California EPR Laws

Arnold & Porter Environmental partner Stacey Halliday and Product Liability Litigation partner Jennifer Kwapisz were quoted in the recent Inside EPA article, “Briefing On Due Process Claims Could Limit Impact Of Oregon EPR Suit,” discussing Judge Michael Simon’s order for post-trial briefing in National Association of Wholesaler-Distributors (NAW) v. Feldon, the first extended producer responsibility (EPR) lawsuit to go to trial.

Jennifer highlighted that if the judge’s ruling ultimately focuses on NAW’s Commerce Clause claims rather than due process arguments, the impact will be broader.

In that case, “it’s likely to have more far-ranging implications, because all these packaging EPR programs are having a somewhat similar impact on the stream of commerce,” she said.

To prove its Commerce Clause claims, NAW would need to show the practical import of the EPR program on interstate commerce, which Jennifer noted may be difficult.

“The dormant Commerce Clause is a challenging area of the law, and it’s not entirely clear from Supreme Court precedent just what quantum of evidence is going to be needed to satisfy the standard,” she said.

Stacey emphasized that because the court is likely to act quickly, the decision could have implications for California’s similar packaging EPR program, while the impacts on other states may be more limited.

“Implementation will likely just be in a wait-and-see mode,” she said, in reference to other states’ packaging EPR programs that are in earlier stages.

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