Shifting the Burden of Waste: Extended Producer Responsibility and Its Constitutional Uncertainty
By: Carolyn Pierson
Extended Producer Responsibility (EPR) laws have emerged as one of the more ambitious regulatory experiments in modern environmental policy. Born out of decades of frustration with municipal recycling systems that were chronically underfunded and overwhelmed by the volume of modern consumer packaging, EPR is a fundamental shift regarding who bears the responsibility for waste. Rather than treating disposal as a public obligation, these laws place the burden on companies that design and profit from the products generating waste (Johnson & Stone, 2026). In the United States (U.S.), seven states have adopted foundational EPR programs beginning in 2021. Now, producers are challenging the constitutionality of these laws, centered on Oregon’s EPR program, the most operationally advanced. What courts decide here will set the precedent for all other states and could reshape the entire model.
What Is EPR?
At its core, EPR is a regulatory framework that reassigns the financial and logistical burden of post-consumer waste from local governments and taxpayers to the businesses that place products into the economy (Sustainable Packaging Coalition, 2026). In practice, this means producers are required to enroll in a Producer Responsibility Organization (PRO), disclose detailed data on the packaging materials they sell into a given state, and contribute fees based on the volume and type of materials they produce (Atwood et al., 2026). PROs, which are typically structured as nonprofit organizations, receive and allocate these funds to finance the collection, sorting, processing, and infrastructure upgrades that make recycling and composting economically viable at scale (Sustainable Packaging Coalition, 2026). The underlying logic is straightforward: by internalizing the cost of waste, producers have a financial incentive to reduce consumer waste at the design stage, rather than externalizing the cost onto municipalities, which are often ill-equipped to manage it (Atwood et al., 2026). The promise of EPR, then, is not just fiscal reallocation; it is the possibility that making producers pay for waste will reduce waste overall.
The Promise of Sustainability
Waste reduction and diversion have significant environmental value. When materials are recovered, reused, recycled, or composted rather than deposited in landfills, the downstream benefits compound. We see fewer greenhouse gas emissions, less habitat disruption, and a decline in environmental degradation linked to resource extraction (Sustainable Packaging Coalition, 2026). However, the gap between what Americans discard and what actually gets recovered is striking. The U.S. recycles only 16 percent of its annual 300 million tons of municipal solid waste, and curbside programs recover just 32 percent of recyclables (Yang, 2021). Compounding this is the fact that modern packaging was never designed with recovery in mind. Many plastics cannot be recycled at all, and those that can are typically downcycled into lower-quality materials with limited reuse potential (Yang, 2021). EPR targets both problems at once by funding better recovery infrastructure, upgrading facilities, expanding collection access, and increasing processing capacity, while giving producers financial reason to design excess waste out of the system.
When EPR has been successfully implemented, the results have been promising. In Belgium and Germany, packaging recovery rates more than doubled following the adoption of EPR (Environmental Research and Education Foundation, 2025). Similarly, British Columbia saw its recovery rate climb from around 50 percent to over 80 percent between 2014 and 2021 (Environmental Research and Education Foundation, 2025).
State Adoption and Implementation
Seven states, including California, Colorado, Maine, Maryland, Minnesota, Oregon, and Washington, have enacted EPR statutes, and nearly all have adopted Oregon’s regulatory structure, which was the first to operationalize (Johnson & Stone, 2026). Its Plastic Pollution and Recycling Modernization Act established the framework of mandatory PRO enrollment, detailed material reporting, and eco-modulated fees tied to the volume and type of packing sold into the state (Johnson & Stone, 2026). In Oregon and Colorado, producers have already registered with the Circular Action Alliance (CAA), the leading PRO, submitted the required material disclosures, and paid the applicable fees (Atwood et al., 2026). The remaining states are moving through phased timelines, with reporting obligations beginning in 2026 and fee collection projected to start in 2027 (Atwood et al., 2026). Maryland, Minnesota, and Washington are expected to fully implement their EPR statutes by 2030 (Atwood et al., 2026).
Compliance Complexities
Despite their shared goals and similar structure, state EPR programs have diverged in ways that create significant compliance burdens for businesses operating across multiple jurisdictions (Atwood et al., 2026). Since each state defines the term ‘producer’ according to its own criteria, weighing factors such as brand ownership or commercial transaction, the same product sold by the same company can trigger competing obligations depending on where it is delivered (Atwood et al., 2026). Variation in covered materials and available exemptions across state programs adds another layer of complexity for producers. What qualifies as a covered material in one state may fall entirely outside the scope of another’s program, meaning a product that triggers full compliance in Oregon may face no requirements in Maryland (Atwood et al., 2026). Thresholds based on company size, revenue, and material volume also vary across jurisdictions, so a business may be exempt in one state and fully obligated in another (Atwood et al., 2026). These compliance tensions have not gone uncontested. The structural inconsistencies across state programs have now raised constitutional questions about interstate commerce and landed in federal court.
The Oregon Decision and Its Constitutional Implications
In National Association of Wholesaler-Distributors (NAW) v. Feldon, a federal court granted a preliminary injunction halting Oregon’s enforcement of its EPR statute against the plaintiff trade association and its members (Johnson & Stone, 2026). The suit was brought against Oregon’s Department of Environmental Quality and members of its Environmental Quality Commission, marking the first time a court has formally signaled that this regulatory model may be constitutionally vulnerable (Johnson & Stone, 2026). The court permitted two significant constitutional frameworks to proceed: a Dormant Commerce Clause argument, which holds that EPR programs risk placing undue burdens on interstate commerce as more states enact conflicting requirements, and a Due Process argument, which questions whether states may compel producers to enter into non-negotiable arrangements with private organizations that control fees and enforcement (Johnson & Stone, 2026).
What makes this ruling particularly consequential is what it reveals about the structural assumptions in every state EPR program. All seven state programs share the same foundational structure with mandatory PRO enrollment, eco-modulated fees, and cost structures that span state jurisdictions, precisely the arguments NAW is attacking (Johnson & Stone, 2026). With a trial scheduled for July 2026, the stakes extend well beyond Oregon. A ruling against the state could call into question the legal durability of every EPR statute built on the same design (Johnson & Stone, 2026).
Conclusion
EPR laws represent a meaningful and necessary departure from a waste management system that has long displaced environmental costs onto public budgets and often underserved communities. However, the Oregon litigation has exposed a potential blind spot. The legal infrastructure supporting these programs has not been as secure as the legislative momentum suggested. If the constitutional challenges succeed, policymakers will be faced with redeveloping EPR from the ground up.
Resources:
Atwood, J. D., Fowler, S., & Zarghamee, R. (2026, February 26). Extended producer responsibility laws: Strategic considerations for trade associations as compliance expands and litigation unfolds. Pillsbury Winthrop Shaw Pittman LLP, JD Supra. https://www.jdsupra.com/legalnews/extended-producer-responsibility-laws-9907934/
Environmental Research and Education Foundation. (2025). What are the benefits of extended producer responsibility? Sustainability Directory. https://energy.sustainability-directory.com/question/what-are-the-benefits-of-extended-producer-responsibility/#academic
Johnson, N., & Stone, E. (2026, February 10). Federal court enjoins Oregon's extended producer responsibility law — a bellwether moment for all seven EPR states. Foley & Lardner LLP, JD Supra. https://www.jdsupra.com/legalnews/federal-court-enjoins-oregon-s-extended-4420553/
Sustainable Packaging Coalition. (2026). Extended producer responsibility for packaging. https://epr.sustainablepackaging.org/
Yang, C. (2021, May 14). Extended producer responsibility policies offer a solution to the waste crisis. Environmental and Energy Study Institute. https://www.eesi.org/articles/view/extended-producer-responsibility-policies-offer-a-solution-to-the-waste-crisis