3:25-cv-01334
07/30/2025
Open
Constitutional and Civil Rights - State Statute Constitutionality
1. Oregon’s Plastic Pollution and Recycling Modernization Act (the “Act”) is an unprecedented program that seeks to broadly regulate entities across the supply chain and affects virtually every aspect of commerce for products within and entering Oregon—all while delegating essentially regulatory authority to a private, third-party organization. While the Act is ostensibly intended to promote sustainable life-cycle management, the Act’s deeply flawed design in fact produces unreasonable, arbitrary, and crushing burdens, including on wholesalers and distributors who are essential to moving products from manufacturers to Oregon consumers.
2. The Act requires “producers” of product packaging, food serviceware, paper products, and certain other items to join a “producer responsibility organization” (PRO). That PRO—an ostensibly private organization—is then granted wide authority to set “eco-modulated” fees associated with a vast range of materials sold or distributed into the state—including newspapers, glass jars, aluminum foil and containers, packing paper and cardboard, nearly three dozen different categories of plastic products, and wood and other organic materials. In other words, the PRO fees apply to products used in virtually every purchase of goods. As part of this program, each “producer”—e.g., a manufacturer that sells packaged products in Oregon; or a wholesaler or distributor who brings any such product into the state—must register with the PRO; enter into a non-negotiable contract with that PRO; and provide the PRO data about the materials and volumes used in its operations, which the PRO uses to assess fees. These fees may be much greater than wholesalers’ or distributors’ margins on a product, or even the price of the product itself.
3. The Act has been referred to as creating an “extended producer responsibility” (EPR) program, but there has never been an EPR program like this. Typical EPR programs involve specific products that are associated with an additional fee to facilitate appropriate disposal: for example, mattress or carpet purchasers may be charged a collection and disposal fee; plastic drink bottles may include a recycling “deposit.” But those are discrete products with set and transparent fees. The Act here, in contrast, has unprecedented breadth, scope, and complexity.
4. On its face, the Act is entrusted to the Oregon Environmental Quality Commission (EQC) and the Oregon Department of Environmental Quality (DEQ) for administration. In truth, however, despite its transformational nature, EQC and DEQ oversee its implementation and enforcement only tangentially. Rather, the vast majority of program administration is delegated to the PRO, which has been granted wide discretion to apply a confidential methodology for setting fees, to establish other criteria and incentives for certain producers, and to penalize producers of certain materials. What is more, Oregon has approved only a single PRO—the Circular Action Alliance (CAA)—meaning that CAA’s terms and conditions, fees, incentives, and penalties are all mandatory.
5. Entities that registered with the PRO started getting their first “invoices” for fees this month. For many, particularly for small and medium-sized businesses operating on thin margins, the fees were unexpected and unexpectedly high.
6. This surprise resulted in significant part from the fact that the PRO’s fee-setting methodology has been deemed confidential. It has not been publicly disclosed, debated, subjected to rule-making, or in any other respect open to inspection. Rather, it has been immunized from public scrutiny or challenge. Moreover, companies commanded to join the PRO and to pay these fees are denied any administrative or judicial process to challenge fee assessments. Instead, any individual producer questioning its assessment must engage in private arbitration with the PRO, pursuant to the terms of the contract it was directed by law to sign. Moreover, DEQ has explicitly stated that CAA may change fee schedules without review or approval. And the scheme is prone to duplication and vagueness in the PRO’s assessment of fees, with no transparent mechanism for determining how fees are allocated across the supply chain.
7. Based on these attributes and others, Oregon’s program is unconstitutional because it violates:
a. Nondelegation Doctrine. Vesting authority over EPR program administration in a private entity without adequate legislative standards or procedural safeguards constitutes an unlawful delegation in violation of the Constitution.
Presiding Judge
Stacie F. Beckerman
Plaintiff
National Association of Wholesaler-Distributors
Defendants
Oregon Department of Environmental Quality
Oregon Environmental Commission
Daniel A. Rayfield
Does 1-25
Plaintiff Attorneys
Gordon D. Todd
David Ryan Carpenter
Caleb J. Bowers
Alexandra Mushka
Darin M. Sands
Defendant Attorneys
Sara D. Van Loh
Alexander Charles Jones
(#19) Declaration of Sara Van Loh Declaration of Sara Van Loh in Support of Unopposed Motion for Extension of Time to File an Answer. Filed by Oregon Department of Environmental Quality, Oregon Environmental Commission, Daniel A. Rayfield. (Related document(s): Motion for Extension of Time to Answer a Complaint/Petition, #18 .) (Van Loh, Sara) (Entered: 09/18/2025)
(#18) Second Motion for Extension of Time to Answer Unopposed Motion for Extension of Time to File an Answer Complaint, #1 . Filed by Daniel A. Rayfield, Oregon Environmental Commission, Oregon Department of Environmental Quality. (Van Loh, Sara) (Entered: 09/18/2025)
(#17) ORDER TO SERVE DOE DEFENDANTS. Plaintiff must serve process on any Doe Defendants by October 28, 2025, or demonstrate good cause or excusable neglect for their delay. If Plaintiff fails to do so, the Court will dismiss any Doe Defendants without prejudice. Signed on September 10, 2025 by Magistrate Judge Stacie F. Beckerman. (gw) (Entered: 09/10/2025)
(#16) Notice of Implied Consent to Jurisdiction by a Magistrate Judge and Declination of Consent Form. Parties who do not return the form by the deadline will be deemed to have knowingly and voluntarily consented to proceed before a U.S. Magistrate Judge. Declination of Consent to Jurisdiction by a Magistrate Judge, if any, is to be filed by 10/10/2025. (gw) (Entered: 09/10/2025)
(#14) Declaration of Sara D. Van Loh In Support of Unopposed Motion for Extension of Time to File Answer to Complaint. Filed by Oregon Department of Environmental Quality, Oregon Environmental Commission, Daniel A. Rayfield. (Related document(s): Motion for Extension of Time to Answer a Complaint/Petition #13 .) (Van Loh, Sara) (Entered: 08/22/2025)
(#13) Unopposed Motion for Extension of Time to Answer to Complaint Complaint, #1 . Filed by Daniel A. Rayfield, Oregon Environmental Commission, Oregon Department of Environmental Quality. (Van Loh, Sara) (Entered: 08/22/2025)
Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Caleb J. Bowers. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-9949866 #11 : Reviewed and Ready for Ruling. (dino) (Entered: 08/13/2025)
Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Gordon D. Todd. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-9948096 #7 : Reviewed and Ready for Ruling. (dino) (Entered: 08/12/2025)
Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Alexandra Mushka. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-9947910 #6 : Reviewed and Ready for Ruling. (dino) (Entered: 08/12/2025)
Clerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney David Ryan Carpenter. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-9947863 #5 : Reviewed and Ready for Ruling. (dino) (Entered: 08/12/2025)
(#4) Summons Issued Electronically as to Oregon Department of Environmental Quality, Oregon Environmental Commission, Daniel A. Rayfield. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. (ajm) (Entered: 07/30/2025)
(#3) Notice of Case Assignment to Magistrate Judge Stacie F. Beckerman and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. Discovery is to be completed by 11/28/2025. Joint Alternate Dispute Resolution Report is due by 12/29/2025. Pretrial Order is due by 12/29/2025. Ordered by Magistrate Judge Stacie F. Beckerman. (ajm) (Entered: 07/30/2025)
(#2) Corporate Disclosure Statement . Filed by National Association of Wholesaler-Distributors. (Sands, Darin) (Entered: 07/30/2025)
Proposed Summons
Civil Cover Sheet
(#13) Unopposed Motion for Extension of Time to Answer to Complaint Complaint, #1 . Filed by Daniel A. Rayfield, Oregon Environmental Commission, Oregon Department of Environmental Quality. (Van Loh, Sara) (Entered: 08/22/2025)
Docket(#20) ORDER: Granting Defendants Daniel A. Rayfield, Oregon Environmental Commission, and Oregon Department of Environmental Quality's Unopposed Motion for Extension of Time (ECF No. #18 ). Answer or other responsive pleading is due by 10/17/2025. Ordered by Magistrate Judge Stacie F. Beckerman. (gw) (Entered: 09/18/2025)
[-] Read LessDocket(#19) Declaration of Sara Van Loh Declaration of Sara Van Loh in Support of Unopposed Motion for Extension of Time to File an Answer. Filed by Oregon Department of Environmental Quality, Oregon Environmental Commission, Daniel A. Rayfield. (Related document(s): Motion for Extension of Time to Answer a Complaint/Petition, #18 .) (Van Loh, Sara) (Entered: 09/18/2025)
[-] Read LessDocket(#18) Second Motion for Extension of Time to Answer Unopposed Motion for Extension of Time to File an Answer Complaint, #1 . Filed by Daniel A. Rayfield, Oregon Environmental Commission, Oregon Department of Environmental Quality. (Van Loh, Sara) (Entered: 09/18/2025)
[-] Read LessDocket(#17) ORDER TO SERVE DOE DEFENDANTS. Plaintiff must serve process on any Doe Defendants by October 28, 2025, or demonstrate good cause or excusable neglect for their delay. If Plaintiff fails to do so, the Court will dismiss any Doe Defendants without prejudice. Signed on September 10, 2025 by Magistrate Judge Stacie F. Beckerman. (gw) (Entered: 09/10/2025)
[-] Read LessDocket(#16) Notice of Implied Consent to Jurisdiction by a Magistrate Judge and Declination of Consent Form. Parties who do not return the form by the deadline will be deemed to have knowingly and voluntarily consented to proceed before a U.S. Magistrate Judge. Declination of Consent to Jurisdiction by a Magistrate Judge, if any, is to be filed by 10/10/2025. (gw) (Entered: 09/10/2025)
[-] Read LessDocket(#15) ORDER: Granting Defendants' Unopposed Motion for Extension of Time (ECF No. #13 ). Answer or other responsive pleading is due by 9/19/2025. Ordered by Magistrate Judge Stacie F. Beckerman. (gw) (Entered: 08/22/2025)
[-] Read LessDocket(#14) Declaration of Sara D. Van Loh In Support of Unopposed Motion for Extension of Time to File Answer to Complaint. Filed by Oregon Department of Environmental Quality, Oregon Environmental Commission, Daniel A. Rayfield. (Related document(s): Motion for Extension of Time to Answer a Complaint/Petition #13 .) (Van Loh, Sara) (Entered: 08/22/2025)
[-] Read LessDocket(#13) Unopposed Motion for Extension of Time to Answer to Complaint Complaint, #1 . Filed by Daniel A. Rayfield, Oregon Environmental Commission, Oregon Department of Environmental Quality. (Van Loh, Sara) (Entered: 08/22/2025)
[-] Read LessDocket(#12) ORDER: Granting Caleb J. Bowers' Motion for Leave to Appear Pro Hac Vice (ECF No. #11 ) for Plaintiff. Ordered by Magistrate Judge Stacie F. Beckerman. (gw) (Entered: 08/14/2025)
[-] Read LessDocketClerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Caleb J. Bowers. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-9949866 #11 : Reviewed and Ready for Ruling. (dino) (Entered: 08/13/2025)
[-] Read LessDocketClerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Gordon D. Todd. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-9948096 #7 : Reviewed and Ready for Ruling. (dino) (Entered: 08/12/2025)
[-] Read LessDocketClerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Alexandra Mushka. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-9947910 #6 : Reviewed and Ready for Ruling. (dino) (Entered: 08/12/2025)
[-] Read LessDocketClerk's Review of Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney David Ryan Carpenter. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-9947863 #5 : Reviewed and Ready for Ruling. (dino) (Entered: 08/12/2025)
[-] Read LessDocket(#7) Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Gordon D. Todd. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-9948096. Filed by National Association of Wholesaler-Distributors. (Todd, Gordon) (Entered: 08/12/2025)
[-] Read LessDocket(#6) Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney Alexandra Mushka. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-9947910. Filed by National Association of Wholesaler-Distributors. (Mushka, Alexandra) (Entered: 08/12/2025)
[-] Read LessDocket(#5) Motion for Leave to Appear Pro Hac Vice. Pro Hac Vice admission requested by attorney David Ryan Carpenter. Filing fee in the amount of $300 collected; Agency Tracking ID: AORDC-9947863. Filed by National Association of Wholesaler-Distributors. (Carpenter, David) (Entered: 08/12/2025)
[-] Read LessDocket(#4) Summons Issued Electronically as to Oregon Department of Environmental Quality, Oregon Environmental Commission, Daniel A. Rayfield. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. (ajm) (Entered: 07/30/2025)
[-] Read LessDocket(#3) Notice of Case Assignment to Magistrate Judge Stacie F. Beckerman and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. Discovery is to be completed by 11/28/2025. Joint Alternate Dispute Resolution Report is due by 12/29/2025. Pretrial Order is due by 12/29/2025. Ordered by Magistrate Judge Stacie F. Beckerman. (ajm) (Entered: 07/30/2025)
[-] Read LessDocket(#2) Corporate Disclosure Statement . Filed by National Association of Wholesaler-Distributors. (Sands, Darin) (Entered: 07/30/2025)
[-] Read LessDocket(#1) Complaint. Filing fee in the amount of $405 collected. Agency Tracking ID: AORDC-9933893 Filer is subject to the requirements of Fed. R. Civ. P. 7.1. Jury Trial Requested: No. Filed by National Association of Wholesaler-Distributors against All Defendants (Attachments: #1 Civil Cover Sheet, #2 Proposed Summons). (Sands, Darin) (Entered: 07/30/2025)
[-] Read Less