Welcome to the February edition of Nutter’s Environment & Energy Insights, a periodic update of current trends in environment and energy law. This month we cover:
- Federal court enjoins Oregon from enforcing its extended producer responsibility (“EPR”) packaging law
- The Massachusetts EPR commission releases recommendations
- EPA repeals Clean Air Act greenhouse gas “dangerousness” determination and implementing regulations
Oregon Preliminarily Enjoined from Enforcing its EPR Packaging Law
The National Association of Wholesaler-Distributors (“NAW”) has secured an initial victory in its lawsuit challenging Oregon’s extended producer responsibility (“EPR”) law. The United States District Court for the District of Oregon issued a preliminary injunction on February 6 that is at least partially in NAW’s favor.
Oregon’s EPR legislation for packaging, enacted in August 2021, regulates the producers of packaging, paper, and food service wares by requiring producers to pay fees to facilitate recycling of their products and file reports on the materials that they sell in Oregon. The Oregon EPR law in turn requires compliance with a producer responsibility organization (“PRO”), which is a state-selected entity that implements the requirements of the EPR by implementing a detailed program that each producer must follow.
In July 2025, NAW filed suit against the Oregon Department of Environmental Quality after Oregon’s PRO issued a round of invoices for EPR fees. NAW’s complaint alleged that the Oregon EPR law violated several provisions of the Oregon Constitution and the U.S. Constitution. Then, in November, NAW moved for a preliminary injunction to stop enforcement of the Oregon EPR law, alleging that without an injunction there would be an irreparable harm done to its members who would otherwise face excessive compliance costs.
The court’s February preliminary injunction order dismissed without prejudice many of NAW’s claims, including all of its claims under the Oregon Constitution and its claims under the Equal Protection Clause of the U.S. Constitution. But the order nonetheless granted the preliminary injunction with respect to NAW’s claims under the Dormant Commerce Clause and the Due Process Clause of the United States Constitution due to “serious questions” regarding these claims, “a likelihood of irreparable injury,” and a “balance of hardships [that] tips sharply in favor of [NAW].” Thus, Oregon is preliminarily enjoined from enforcing its EPR law against NAW and its members.
Report from Massachusetts Commission to Study EPR Laws Released
Continuing our discussion of EPR laws, in January 2026, the Massachusetts Extended Producer Responsibility Commission (“EPR Commission”) released its final report on potential EPR legislation in the Commonwealth.
The Massachusetts legislature established the EPR Commission by law in 2024 to recommend EPR policies to the legislature. The EPR Commission was required to study the utility of EPR laws for a wide range of products, including “paint, mattresses, electronics, lithium-ion batteries, plastics and other packaging.” The law also required the EPR Commission to consider “collection, processing and financial responsibility” for each category of products, the potential for curbside pickup or on-site processing, incentivization of “reduction, reuse and lifecycle extensions” for products, and impacts on waste stream reduction generally.
The report fulfills the EPR Commission’s mandate by making a wide array of recommendations, including legislation that would establish an EPR program for the following:
- paint products aligning with existing programs in other New England states;
- mattresses (involving either a flat or variable fee, at either the wholesale or the retail level);
- batteries in line with model legislation published by the Rechargeable Battery Association; and
- electronics, including but not limited to computers, televisions, cell phones, video game consoles, routers, and printers.
The report also recommends delegating further exploration of an EPR program for plastics and packaging to the MassDEP Solid Waste Advisory Committee, due to the need for “expanded stakeholder engagement” on these issues.
To date, none of these recommendations have been passed into law, despite several bills pending at the time of the report that correspond with some of the report’s findings. Massachusetts does currently have some EPR and other recycling laws in effect (such as the bottle bill that mandates a 5-cent deposit on many beverage containers), but they are more limited than what is proposed in the report.
EPA’s Repeal of Clean Air Act Greenhouse Gas Findings and Pending Suit
On February 12, 2026, the Environmental Protection Agency (“EPA”) rescinded its 2009 determination that greenhouse gases threatened the public health and welfare, as applied to the Clean Air Act. See 42 U.S.C. § 7521(a). Under the act, EPA may broadly regulate the emission of pollutants from motor vehicles that “endanger the public health and welfare.” The 2009 determination therefore formed the underpinning for EPA’s regulations for motor vehicle greenhouse gas emission standards. EPA also repealed the greenhouse gas regulations that depended on the 2009 determination.
Multiple environmental and public health groups, led by the American Public Health Association, have jointly filed a lawsuit challenging the EPA’s final rule rescinding the 2009 determination. Central to the dispute is whether the Clean Air Act gave EPA authority to regulate greenhouse gas emissions in the first place and whether EPA acted arbitrarily in repealing the 2009 determination.
We aim to provide updates on this litigation in future newsletters.
