NAW asks the court to pause Oregon EPR duties for its members before CAA's January 2027 invoices. The Ninth Circuit sets briefs for 17 December

How the Oregon case reached this point

Oregon’s Plastic Pollution and Recycling Modernization Act makes producers of packaging, printing and writing paper and food serviceware fund much of the state’s residential recycling system through a PRO. DEQ’s Producers of Covered Products page says covered producers must register with an approved PRO, that CAA could begin charging fees on 1 July 2025, and that failing to join a PRO is a Class 1 violation with fines of up to $25,000 a day.

Fees rest on reported tonnage. DEQ’s page says that from 31 May 2026, prior-year supply data are due to CAA by 31 May each year, and that fee payment deadlines are internal to CAA. CAA’s 2027 fee schedule says its rates reflect producer-reported supply data, projected programme costs and applicable regulatory requirements.

NAW, which describes itself as representing the $8.7 trillion US wholesale distribution industry, sued DEQ’s director in July 2025, according to its appeal release of 24 September. Its case argues that the law breaches the dormant Commerce Clause by charging distributors that do not control their packaging or its destination, and the Due Process Clause by handing fee setting to CAA, a private body.

The district court has ruled twice. On 6 February 2026, the district judge dismissed some claims and granted a preliminary injunction barring DEQ’s director from enforcing the Act against NAW and its members while the case proceeded. After a five-day trial in July, the court’s findings of 27 August went against NAW.

The money at stake for any one producer depends on materials. CAA’s 2027 schedule sets base rates in USD a pound that run from a credit of $0.03 on aluminium containers to $1.13 on expanded polystyrene containers.

The fee page shows where the money goes. CAA’s Oregon 2027 producer fees page forecasts that of every $1 in 2027 producer fees, 40 cents goes to processing at commingled recycling facilities, 37 cents to collection, 11 cents to education and outreach, 5 cents to DEQ’s regulatory costs and 7 cents to administration and other items. CAA presents this as a forecast allocation, not a fee rate.

The 2027 rates also carry a one-off reduction. CAA’s schedule says it is returning about $80 million in programme reserves to producers through lower 2027 rates. NAW’s appeal release, citing the court’s ruling, says CAA had collected $145.5 million from producers and spent $56.5 million, which NAW describes as almost $90 million in excess funds.

What changed between August and October

27 August: findings for the state. The district court issued Findings of Fact and Conclusions of Law in NAW v. Feldon, Case No. 3:25-cv-1334-SI, dated 27 August 2026, the decision record shows. DEQ’s release of 28 August said the court found the Act does not violate the dormant Commerce Clause or the Due Process Clause, so the state can keep implementing it.

28 August: NAW responds. NAW’s statement of 28 August said it disagreed with the decision and was reviewing next steps. It said members had received invoices months after their sales, at rates they could not predict, and that it would keep challenging similar laws in California and Colorado.

Late August: the injunction question. Holland & Knight, in a client note of 31 August, reported that judgment for the state was entered on 28 August 2026 and that it dissolved the February injunction, as reported by that firm and not confirmed in an official source. NAW’s own release of 17 October describes the stay as a way to restore the protection members had since February.

24 September: the appeal. NAW said on 24 September 2026 that it had filed a notice of appeal with the Ninth Circuit against the 27 August decision. Its release says the district court found few material facts in dispute and that the Ninth Circuit reviews questions of law without deference to the lower court.

30 September: the schedule. The Ninth Circuit docket for case 26-6404 shows the case opened at 1:57 p.m. on 30 September 2026 and a schedule notice followed at 2:04 p.m. It sets the opening brief for 17 December 2026 and the answering brief for 18 January 2027, and warns that the appeal will be dismissed if the schedule is not followed.

1 October: CAA’s 2027 rates. CAA’s 2027 Oregon schedule says it was originally published on 1 October 2026. It splits 2027 billing into two invoices, 50% in January and 50% in July, and says CAA is returning about $80 million in programme reserves to producers through reduced rates, together with $3 million in previously collected fees.

17 October: the stay motion. NAW’s release of 17 October, headlined “NAW Asks Court to Pause Oregon EPR Fees for Members While Ninth Circuit Hears Appeal”, says NAW asked the district court to stay its judgment while the appeal is pending. SPI has not yet confirmed the filing date: the district docket page on Justia was last updated on 27 August, and its latest entry is from January 2026³. The release’s subheading says the motion seeks to keep members’ protection in place before new invoices arrive in January 2027.

21 October: CAA explains its rates. CAA’s fee page and events listing show a webinar titled “Understanding Producer Fee-Setting” on 21 October 2026, covering how programme costs are built, allocated across materials and used to calculate producer fees¹⁰. The session was scheduled four days after NAW’s release; SPI has not yet confirmed what was said at it.

The case has moved quickly by court standards. By SPI’s calculation, 202 days ran from the injunction to the findings, 28 days from the findings to NAW’s appeal release, and 61 days separate the stay release from the opening brief deadline.

What the court record shows so far

The table sets out the dated steps in the record, with the document each one comes from. The motion itself is not yet on any docket page SPI has read, so its contents are reported here as NAW describes them.

The February order. The order of 6 February 2026 dismissed without prejudice the claims against four members of the Oregon Environmental Quality Commission, along with the Oregon constitutional, unconstitutional conditions and equal protection claims. It kept the dormant Commerce Clause and Fourteenth Amendment due process claims, gave leave to replead by 20 February 2026, and granted the injunction for NAW and its members⁴.

The parties. The Ninth Circuit docket lists the appellee as the director of the Oregon Department of Environmental Quality, sued in her official capacity, and gives the nature of suit as constitutionality of state statutes². CAA is not a party, its February update said.

The request. NAW’s release says a stay would restore the protection members had since February 2026, when the court preliminarily enjoined enforcement of the Act. It argues that the court’s February finding that members faced irreparable harm from a double bind still holds, and that nothing about it has changed.

The double bind, in NAW’s words. The release says members who pay CAA’s January invoices may not recover the money if the Act is later held unconstitutional. It says members who do not pay could face compounding late fees and possible DEQ enforcement.

The state’s side. DEQ’s release of 28 August said the ruling followed a five-day trial in July 2026 at which DEQ and NAW presented arguments and evidence. SPI has not yet confirmed a filed response from DEQ to the stay motion.

The briefing clock. The schedule notice of 30 September sets a mediation questionnaire for 5 October, a transcript order for 8 October, disclosure statements for 14 October and the transcript for 9 November, before the two main briefs. NAW’s release does not give a date for oral argument, and the docket shows none.

What the appeal argues. NAW’s 24 September release says it will argue that DEQ expected producers to pass costs to customers in other states, and that CAA uses a fee method it calls confidential, with fee disputes sent to binding arbitration. NAW says the court’s ruling cited CAA collecting $145.5 million from producers and spending $56.5 million.

Who is exposed to the January invoices

NAW members. They are the only group the motion covers. NAW’s release says a stay would put members back where they stood under the February injunction. NAW does not publish a member count in the release, and SPI has not yet confirmed how many CAA registrants are NAW members.

The registry. CAA’s Oregon page links to a searchable registry of all Oregon producer members, updated on 22 September 2026, and to its 2025 annual report, updated on 7 July 2026. The registry is the place to check whether each trading entity is listed.

Other registered producers. Producers outside NAW were never covered by the February injunction, CAA’s update said, and the motion does not seek relief for them. For them, the 2027 schedule applies as published: half the annual fee invoiced in January and half in July.

Producers out of compliance. CAA’s Q2 2026 producer status report, corrected on 13 October 2026, lists 194 producers as not compliant at 4 September 2026, after CAA notice and a DEQ warning letter. Three of them had information under DEQ review.

Low-volume producers. CAA’s schedule offers an optional flat rate for producers supplying 10 tons or less, with annual dues tiered from $700 to $3,100. For these firms, the January invoice is a known figure rather than a tonnage calculation.

Foam and plastic-heavy portfolios. At $1.13 a pound for foamed polystyrene containers and $0.57 a pound for PET thermoforms, CAA’s 2027 base rates fall hardest on rigid plastic food packaging. Aluminium containers carry a base credit of $0.03 a pound.

Glass producers. CAA’s 2027 base rate for glass bottles and jars is $0.04 a pound. SPI’s report on Oregon’s rulemaking 3 noted DEQ’s statement that glass producers paid $0.10 a pound in 2026. The two figures are on different bases: CAA’s 2026 Oregon schedule gives 10.0 cents a pound as the final rate, while the 2027 $0.04 is the base rate before reserve drawdowns, which take the 2027 final glass rate to $0.00.

Service providers. CAA’s fee page says 88 cents of every $1 of 2027 producer fees goes to collection, processing and education. Processing takes 40 cents and local government service expansion 26 cents, so January receipts fund councils and sorting facilities directly.

The pinch point between the briefs and the invoices

The calendar is the constraint. By SPI’s calculation, 71 days separate this article from 1 January 2027, 56 days from NAW’s opening brief deadline and 88 days from Oregon’s answering brief deadline. CAA’s schedule says only that the first 2027 invoice arrives in January, without a day.

That puts the January invoice inside the briefing window, before any reply brief and before argument. NAW’s release says the Ninth Circuit is expected to hear argument months after the invoices go out, and the docket gives no argument date.

The invoice basis is set. DEQ’s producer page says prior-year supply data are due to CAA by 31 May each year, so the tonnage behind 2027 invoices was reported before the August ruling and before the appeal. The stay motion does not, on NAW’s description, ask the court to change any rate or report.

The district court decides the stay first. The release does not say whether NAW would ask the Ninth Circuit for a stay if the district court declines, and SPI has not yet confirmed any such filing.

A related case is waiting on the same appeal. Packaging Dive reported on 13 October that Lollicup USA and DEQ’s director jointly moved to stay Lollicup’s class action, which the same district judge oversees, until NAW’s appeal is resolved, as reported by that publisher and not confirmed in an official source.

Cash timing matters as much as the total. Because CAA splits 2027 billing 50% in January and 50% in July, the first invoice carries half of each producer’s annual Oregon fee, and it arrives in the same month as Oregon’s answering brief, due on 18 January.

How Oregon fits NAW's wider EPR litigation

NAW’s 17 October release says it is the sole business plaintiff in a 17-state coalition challenging California’s EPR law and has filed a separate challenge to Colorado’s EPR law, and that both cases are ongoing. NAW describes the California and Colorado cases only as ongoing, while the Oregon case has a judgment and an open appeal.

California’s programme is at the plan stage. SPI tracks it as PR-US-004 and covered CAA’s plan in CAA’s final SB 54 plan. Colorado’s programme is live: SPI’s tracker record PR-US-003 notes that CDPHE confirmed CAA’s plan approval in December 2025.

NAW’s 24 September release calls the July trial the first federal trial to test an EPR law’s constitutionality, and the February injunction the first time a court had blocked enforcement of a state EPR law.

CAA is the PRO in all three states, which links the cases operationally. SPI’s tracker record PR-US-004 notes that CalRecycle says CAA submitted its California plan to the advisory board on 15 June 2026. In Colorado, CDPHE confirmed approval of CAA’s plan in December 2025, as tracker record PR-US-003 records.

The due process argument travels with CAA. NAW’s 24 September release frames its Oregon claim around fee setting by a private PRO with a fee method it calls confidential, and the same PRO sets fees in Colorado and is preparing California’s programme.