Auto Care seeks to join NAW's Colorado EPR suit over $0.56 a gallon lubricant fees charged alongside CAA dues

How Colorado ended up with two packaging programmes

Colorado’s Producer Responsibility Program for Statewide Recycling Act, HB22-1355, makes companies that sell packaging and paper products fund a statewide recycling system. CDPHE’s programme page says that since July 2025 a producer cannot sell or distribute products using covered materials in Colorado unless it takes part, and that dues on covered materials began in January 2026.

CDPHE appointed CAA as the PRO in May 2023, and its executive director approved CAA’s programme plan in December 2025, the same page says. SPI tracks the law as PR-US-003 in the SPI Regulation Tracker for the United States.

The second programme was approved first. CDPHE says its executive director approved Interchange 360’s individual programme plan for automotive lubricant packaging in September 2025, and that Interchange 360 began its programme in March 2026. Auto Care’s release describes LPMA as operating as Interchange 360.

CDPHE tells producers of applicable petroleum and automotive products to register with Interchange 360. It also says that, depending on the covered materials a producer sells into Colorado, a producer may be required to register and report in both programmes.

The split follows the pack. According to the motion, primary packaging for lubricants is reported to LPMA, while secondary packaging and paper go to CAA. A case of motor oil can therefore sit in two reporting systems at once.

CAA’s dues are set per pound of material. Its 2027 Colorado dues schedule, originally published on 1 October 2026, prints a base rate, two malus columns and a bonus column for each material, and bills 2027 dues in two invoices, 50% in January and 50% in July.

The stakes of staying out are set in statute. NAW’s preliminary injunction motion of 30 July 2026 says a first violation carries a penalty of $5,000 for the first day and $1,500 for each later day, rising to $20,000 and $6,000 for a repeat violation. The same motion counts 61 covered material categories in Colorado and says eco-modulation discounts are capped at 10% of total base dues.

What changed in October

1 October: CAA’s 2027 rates. CAA’s 2027 Colorado schedule raised final dues on most common lines. Corrugated cardboard moves from 8.0 cents a pound in the 2026 schedule to 10 cents, and HDPE and LDPE film from 48.0 cents to 62 cents. Flat dues for producers supplying 10 tons or less rise from $800 to $3,600 a year to $900 to $4,100.

October: LPMA changes its method. The Auto Care motion says that in October 2026 LPMA told producers it was moving to a reporting method based on material type, while tripling fees in many instances. The motion says that, as far as O’Reilly is aware, producers had no chance to give input. SPI has not yet confirmed LPMA’s notice from LPMA itself.

13 and 14 October: conferral. The motion’s conferral certificate says Auto Care’s counsel contacted both sides by email on 13 and 14 October 2026. It records that the defendant’s counsel, acting for CDPHE’s executive director, consents to the motion. The same certificate records the plaintiff’s counsel as opposing, although the sentence in the filed copy is not grammatically complete.

13 October: a state motion, reported but not yet confirmed. Foley & Lardner reported on 16 October that the state moved on 13 October to dismiss NAW’s two due process claims, leaving the dormant Commerce Clause and First Amendment claims in place. That is reported by Foley & Lardner, and SPI has not yet confirmed its contents from the filing.

15 October: the motion to intervene. The filing is dated 15 October 2026 and the court’s header shows it filed that day as Document 22. The PDF that Auto Care posted carries a 16 October date in its web address, and the association’s release followed on 16 October.

16 October: the release. Auto Care’s release said the association had filed a federal lawsuit challenging the Act and had asked the court for leave to intervene. It asks the court to declare the law invalid and to bar its enforcement against members permanently.

What did not change. Neither the motion nor CDPHE’s pages alter any dues date. CAA’s 2027 schedule still splits billing into a January and a July invoice, and CDPHE’s programme page still says dues are owed each year from January 2026.

By SPI’s calculation from the two CAA schedules, final dues on corrugated cardboard rise 25% for 2027 and on HDPE and LDPE film 29.2%. Some lines fall: HDPE squeeze tubes move from 71.0 cents to 69 cents and PP squeeze tubes from 73.0 cents to 58 cents a pound.

What Auto Care asks the court to decide

The motion seeks to intervene as of right under Federal Rule of Civil Procedure 24(a)(2), or by permission under Rule 24(b)(1)(B). It argues the motion is timely because the case is in its early stages and the scheduling conference has not yet taken place.

It attaches a proposed complaint in intervention with four claims under 42 U.S.C. section 1983. The table sets them out with what the motion says each targets, alongside NAW’s own claims as listed in its July release.

The extra remedy. Auto Care seeks a declaration that CDPHE’s approval of LPMA’s individual programme plan, and its incorporation into CAA’s programme plan, were ultra vires and contrary to the Act. The motion says NAW does not seek that relief.

Why NAW is not enough, in Auto Care’s view. The motion says the two associations share a goal of challenging the Act’s constitutionality but have different interests. It argues that NAW’s complaint does not address the dual CAA and LPMA obligations, and that NAW, as a broader distributor body, may not develop the LPMA issues.

The LPMA points. The motion lists the flat $0.56 a gallon fee, the lack of a published fee method at either organisation, a take-it-or-leave-it participation agreement and the absence of any LPMA forum to challenge base dues. It also says LPMA’s founding members include competitors of Auto Care members.

Scope beyond motor oil. The motion says LPMA also covers diesel exhaust fluid and windshield washer fluid. That widens the group of retailers and brands that may sit in both programmes.

Consolidation. The motion argues that a separate complaint, filed with a notice of related cases, would probably have been consolidated with NAW’s action, so intervention avoids two parallel cases. The release frames the step as both a lawsuit and a request to intervene.

Who pays twice

AutoZone. The motion describes AutoZone as a Tennessee-based parts retailer with 6,766 US stores, 114 of them in Colorado, and a member since 1979. It says CAA has invoiced AutoZone more than $160,000 and LPMA more than $415,000, and that AutoZone has paid more than $575,000 to the two in Colorado alone. It adds about $390,000 in third-party consultant and software costs.

O’Reilly. The motion says the Missouri-based retailer runs about 6,600 facilities nationwide, 134 in Colorado. CAA has invoiced it more than $350,000, and it expects LPMA fees above $500,000. The motion also cites more than 100 suppliers engaged and well over 800 hours spent on baseline compliance.

Lubricant and fluid brands. Producers of applicable petroleum and automotive products under Interchange 360’s programme should register with it, CDPHE says. The motion’s account of a flat $0.56 per gallon fee, backdated to 1 April 2025, means the LPMA charge follows the volume of fluid sold rather than packaging weight.

Producers with both pack types. Where secondary packaging and paper go to CAA, each pound pays CAA’s per-pound rate. In 2027 that is 10 cents for corrugated cardboard and 62 cents for HDPE and LDPE film, CAA’s schedule shows.

The wider registrant base. NAW’s injunction motion says CAA’s Colorado list dated 13 July 2026 showed about 3,400 registered producers, and that NAW itself has about 35,000 member companies operating nearly 150,000 locations. It says some annual CAA invoices reach hundreds of thousands of dollars, and that the first payments fell due as early as 19 February 2026. SPI has not yet confirmed how many CAA registrants also report to Interchange 360.

O’Reilly’s scale. The motion says O’Reilly employs over 87,000 people. Its Colorado count of 134 facilities is larger than AutoZone’s 114 stores, but the two companies’ fee figures cover different charges and are stated as floors, so they are not compared here.

Small producers. CAA’s optional flat rate for 10 tons or less runs from $900 to $4,100 for 2027, up from $800 to $3,600 in 2026. SPI has not yet confirmed whether LPMA offers a comparable small-producer option.

SPI’s Packaging Buyers Database is the place to check which buyers and brands sit in each packaging category before mapping them to the two programmes.

The pinch point is a ruling nobody has scheduled

Everything turns on the court’s handling of NAW’s injunction motion. NAW’s motion, dated 30 July 2026, asks the court to bar CDPHE’s executive director from enforcing the Act against NAW and its members while the case runs, and its cover page asks for oral argument and expedited treatment. NAW’s 28 September update says it has filed its reply to Colorado’s opposition. SPI has not yet confirmed a hearing date or a ruling.

The state’s side of the injunction fight is visible only through NAW’s account so far. NAW’s 28 September update says Colorado argues that joining CAA is voluntary and that CDPHE controls CAA, both of which NAW disputes. NAW also says Colorado did not answer its arguments on less burdensome alternatives, on the ban on listing EPR fees on invoices, and on the state’s interest in requiring membership. SPI has not yet confirmed the state’s opposition brief from the filing.

The intervention question sits beside it. Auto Care asks to join as a plaintiff with its own claims, and NAW’s counsel opposes, the conferral certificate records. The court’s decision on intervention decides whether the LPMA questions are argued in this case at all.

The invoices do not wait for either ruling. CAA’s 2027 schedule bills 50% of annual dues in January 2027, and the motion says members began receiving invoices from both organisations in 2026.

The rules are also still moving outside the court. CDPHE says the Solid and Hazardous Waste Commission approved final Section 18 regulations in November 2025, adding producer eco-modulation in Section 18.9 and dues eco-modulation factors in Section 18.2.7. A separate proposed rule would adjust the inflation-based dollar threshold for exempting producers, and a partner meeting on draft rules was held on 6 April 2026, the programme page says.

How Colorado compares with NAW's Oregon case

NAW’s Colorado suit follows its Oregon case, NAW v. Feldon, which SPI covered in its report on NAW’s Oregon stay motion. The arguments overlap: both cases attack fee-setting by CAA as a private body and the conditions attached to market access.

The Oregon case is further along. Oregon DEQ said on 28 August 2026 that a federal court had ruled the state’s law does not breach the dormant Commerce Clause or the Due Process Clause. The Ninth Circuit docket for NAW’s appeal, case 26-6404, opened on 30 September 2026, with the opening brief due on 17 December 2026 and the answering brief on 18 January 2027.

The second-programme issue has no Oregon counterpart in the record SPI has read. In Colorado, CDPHE’s approval of a separate plan for lubricant packaging created the overlap that Auto Care’s motion describes.

Foley & Lardner’s note, as reported by that firm and not confirmed from the filing, says Colorado’s dismissal motion relies on the Oregon ruling. SPI has not yet confirmed that argument from the state’s papers.

The programmes share a structure as well as a PRO. NAW’s injunction motion says about seven states have similar packaging EPR laws, with CAA serving as PRO in six, and counts about 60 covered material categories in Oregon and about 95 in California against 61 in Colorado. Those counts are NAW’s, from its July filing.

What the advisory board meetings can and cannot settle

CDPHE’s advisory board page lists three meetings before the year ends: 28 October 2026 from 1:30 to 4:30 p.m., and 18 November and 9 December 2026 from 12:30 to 2:30 p.m. The 28 October meeting is virtual and in person, with public comment and Spanish interpretation, and up to 12 members of the public can attend in person after signing up.

The board was created under C.R.S. 25-17-704(1) to advise on the programme. Its tasks, the page says, include advising the PRO on the needs assessment and plan proposal, reviewing the PRO’s annual report and consulting on the minimum recyclable list. It also recommends whether CDPHE’s executive director should approve or reject a plan proposal.

The board does not decide the case. Its meetings are where producers can raise programme design points in public, such as how lubricant packaging is split between Interchange 360 and CAA. The page links an agenda for 28 October; SPI has not yet confirmed whether it includes the litigation or the LPMA overlap.

The board has met most months this year. The page lists meetings on 14 January, 11 February, 8 April, 13 May, 10 June, 8 July, 12 August and 9 September 2026, with the 11 March meeting cancelled.