The fifth and final day of the bench trial in National Association of Wholesaler-Distributors (NAW) v. Feldon focused on whether Oregon’s Plastic Pollution and Recycling Modernization Act (RMA) can be administered in a practical and constitutionally sound manner. Oregon presented testimony supporting the design and implementation of its Extended Producer Responsibility (EPR) program, while NAW continued challenging the factual basis for the program and the burdens it places on producers operating within complex national supply chains.
At the conclusion of the evidence, US District Judge Michael H. Simon identified six procedural due process issues that the parties must address in their post-trial briefing, signaling that those constitutional questions may ultimately prove more significant than the broader policy debate surrounding Oregon’s EPR program.
Oregon Defends Program Administration
The day began with continued testimony from Oregon Department of Environmental Quality (DEQ) Senior Policy Analyst David Allaway.
During cross-examination, NAW questioned why the DEQ was not directly administering the program despite serving as its regulatory oversight agency. NAW also revisited concerns regarding the confidentiality of the fee-setting methodology, arguing that producers and even government officials may be unable to understand or evaluate changes in program fees if the underlying methodology remains shielded from public disclosure.
Product Stewardship Institute Supports EPR Model
Oregon next called Scott Cassel, founder and chief executive officer of the Product Stewardship Institute (PSI).
Cassel testified that Oregon’s RMA aligns with packaging EPR programs implemented in other jurisdictions and generally reflects PSI’s framework for effective producer responsibility systems. He described the growing financial and operational challenges municipalities face in managing waste streams and explained that EPR programs are intended to provide a long-term structural solution by shifting responsibility for packaging management to producers.
On cross-examination, NAW challenged the factual basis for several of Cassel’s conclusions and questioned the extent of his analysis regarding Circular Action Alliance (CAA) Oregon’s specific program plan and its impact on distributors.
Yale Expert Discusses Environmental Objectives
Oregon’s final witness was Yale University Research Scholar Reid Lifset, an expert in industrial ecology and extended producer responsibility.
Lifset testified that EPR programs should not be judged solely by recycling rates, explaining that Oregon’s legislation also seeks to reduce broader environmental impacts through life-cycle assessments and eco-modulation incentives. Lifset also criticized several assumptions underlying NAW expert Dr. Calvin Lakhan’s estimates regarding how EPR costs may ultimately be passed on to consumers, while acknowledging that at least some portion of those costs would likely reach consumers.
Under cross-examination, Lifset acknowledged that eco-modulation may produce unintended consequences, that differing state requirements can increase compliance costs, and that current data may not be sufficient to determine whether eco-modulation will achieve all of its intended objectives. Lifset also acknowledged having limited prior research concerning the specific impact of packaging EPR requirements on distributors.
NAW Rebuts Oregon’s Evidence
NAW recalled Dr. Calvin Lakhan in rebuttal.
Lakhan testified that Oregon’s RMA places unusually heavy emphasis on recycling-related outcomes and argued that many of the program’s objectives could be achieved without delegating core administrative responsibilities to a private Producer Responsibility Organization (PRO).
Lakhan also renewed concerns regarding the confidentiality of CAA Oregon’s cost model. Drawing upon his own experience with EPR fee models, he testified that costs can be shifted among material categories in ways that would be difficult to detect without access to both the model and its underlying assumptions. He additionally questioned CAA Oregon’s accumulation of financial reserves during the program’s initial year.
Judge Simon Identifies Six Key Constitutional Questions
After the close of evidence, Judge Simon advised the parties that the Dormant Commerce Clause issues had already been thoroughly briefed. Instead, the court directed the parties to focus their post-trial submissions on six procedural due process questions:
- Whether NAW has identified a protected property interest that triggers procedural due process protections.
- If such an interest exists, what procedural protections are constitutionally required and whether Oregon’s current framework provides adequate process.
- Whether comparable federal or state statutes include binding arbitration provisions without judicial review and whether those examples are relevant to the constitutional analysis.
- What remedy would be appropriate if portions of the producer agreement, including its arbitration provisions, are unconstitutional while the remainder of the statute remains valid.
- Whether Oregon’s decision to delegate program administration to a private Producer Responsibility Organization has independent constitutional significance.
- Whether challenges to the confidentiality of CAA Oregon’s cost-to-manage model are premature given the availability of Oregon’s public records process and potential judicial review.
What Comes Next
The parties are scheduled to file simultaneous post-trial briefs on July 31, 2026. Judge Simon will then determine whether additional oral argument is necessary before issuing a decision.
Although the court gave no indication how it intends to rule, its questions suggest that the ultimate decision may turn less on the merits of Oregon’s overall EPR policy and more on whether the specific procedures and authority delegated to CAA Oregon satisfy constitutional due process requirements for regulated producers.