Colorado has moved to dismiss two constitutional challenges to its Extended Producer Responsibility (EPR) recycling law, citing a similar loss for Oregon in a nearly identical case. The state’s motion, filed October 13, 2026, targets claims brought by the National Association of Wholesaler-Distributors (NAW) under the Fourteenth Amendment’s Due Process Clause: a private nondelegation argument and an unconstitutional conditions claim. The filing leaves NAW’s dormant Commerce Clause and First Amendment challenges unresolved, signaling an ongoing legal battle over Colorado’s Producer Responsibility Program for Statewide Recycling Act.
Colorado’s Legal Strategy Mirrors Oregon’s Defeat
Colorado’s motion leans heavily on Oregon’s August 27, 2026 court victory against similar NAW challenges. The state argues its EPR law is “nearly identical” to Oregon’s, and NAW’s legal theories have already failed there. Both cases center on whether the state’s delegation of regulatory authority violates due process. In Oregon, the court ruled plaintiffs must first demonstrate a protected property or liberty interest before challenging a delegation of power—a threshold NAW failed to meet. Colorado contends NAW “makes the same mistakes” by not establishing such an interest.
The state also counters NAW’s argument that the Circular Action Alliance (CAA) operates without sufficient oversight. NAW claims CAA lacks real oversight, but Colorado points to the Program Plan attached to NAW’s complaint, which documents 28 public advisory board sessions, a public comment period, and required amendments before approval. Colorado argues NAW’s late-raised property interest claim, asserted in a reply brief, cannot cure a defective complaint.
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Unconstitutional Conditions and Alternative Paths
Regarding the unconstitutional conditions claim, Colorado emphasizes that producers have multiple alternatives: joining CAA, submitting an individual program plan, or seeking an exemption by rule. NAW argues individual plans are “cost-prohibitive” and “illusory,” but Colorado cites the Lubricants Packaging Management Association, which successfully submitted and had its plan approved after amendments. The state shows that Oregon’s court found a single viable alternative, such as forming a private producer organization, suffices to defeat the claim, and Colorado provides three options.
NAW’s grievance over CAA’s dispute-resolution process also survives scrutiny. The base participant agreement allows court proceedings after failed mediation, and Colorado’s addendum retains the right to seek injunctive relief in court. Appeals about eco-modulated dues go to CAA’s advisory board, with judicial review available afterward. Colorado notes this process applies to 15 of 26 covered material categories.
Remaining Challenges and Industry Impact
A partial dismissal would not end the case. If Colorado prevails on the due process claims, NAW could amend its complaint to address deficiencies. The dormant Commerce Clause and First Amendment claims remain untouched, with NAW alleging the Act’s exemptions favor in-state businesses and shift costs to out-of-state brand owners, a theory it emphasized during Oregon’s trial. These unresolved issues suggest further litigation ahead.
