A five-day bench trial in National Association of Wholesaler-Distributors v. Feldon was held before U.S. District Judge Michael H. Simon in the District of Oregon during the week of July 13, 2026. The trial concluded on July 17 after approximately 34 hours of testimony, including testimony from industry representatives, Oregon Department of Environmental Quality (DEQ) staff, and expert witnesses for both sides.
The National Association of Wholesaler-Distributors (NAW) challenged the constitutionality of Oregon’s Plastic Pollution and Recycling Modernization Act (RMA) under the dormant Commerce Clause and the Due Process Clause of the U.S. Constitution. Because the matter was tried to the court rather than a jury, (called a bench trial) Judge Simon will determine both the relevant facts and the ultimate legal outcome.
The testimony focused primarily on the burdens associated with identifying responsible producers, collecting and reporting packaging data, and assessing fees after products have entered or moved through the supply chain. Other recurring issues included the transparency and predictability of the fee-setting process; the respective roles of DEQ and Circular Action Alliance (CAA), Oregon’s approved producer responsibility organization; the extent of DEQ’s supervision of CAA; and whether the RMA’s structure and requirements improperly burden interstate commerce.
NAW’s Case
NAW’s first witness was Kim Holmes, Executive Director of CAA Oregon. Holmes testified regarding CAA’s governance, its relationship with DEQ, the development and administration of Oregon’s producer responsibility program, and CAA’s methodology for calculating producer fees. This testimony was particularly relevant to NAW’s claim that the RMA improperly delegates governmental authority to a private organization.
The courtroom was closed to the public for testimony concerning confidential Appendix G to CAA’s Producer Responsibility Program Plan. Appendix G reportedly contains proprietary information regarding CAA’s fee-setting methodology. The confidentiality of this information became a recurring issue during the trial and is among the subjects on which the court requested additional briefing.
Brian Wild, NAW’s Chief Government Relations Officer, testified concerning the RMA’s effects on NAW members. Wild identified concerns regarding the transparency of CAA’s fee-setting process, the practical ability to establish a competing producer responsibility organization, the assessment of fees after relevant business transactions have occurred, and the possibility that participating producers may bear costs attributable to companies that have not registered or paid their assessed fees.
Representatives of several businesses then testified regarding the practical effects of the RMA.
Cory Rodriguez of R.J. Schinner and James Winkle of Harbor Wholesale Foods described the resources their companies devoted to identifying covered products and collecting and reporting packaging data. Edward Allen of WCP Solutions addressed the difficulties distributors face in determining the ultimate destination and end user of products moving through complicated supply chains.
Rick Tomlinson of the California Strawberry Commission testified regarding the specialized packaging used for fragile and perishable agricultural products. His testimony included a discussion of plastic clamshell packaging and the practical limitations on altering packaging without affecting product quality, shelf life, or food waste. Judge Simon asked several questions concerning the use and recyclability of clamshell packaging.
NAW also presented testimony from two expert witnesses. Dr. Douglas Thomas, a professor at the University of Virginia with expertise in supply-chain management, testified regarding the operation of national and regional supply chains. He offered the opinion that Oregon-specific reporting and fee requirements create inefficiencies and impose burdens on interstate commerce.
Dr. Calvin Lakhan, Director of the Circular Innovation Hub at York University in Ontario, Canada, compared the RMA with extended producer responsibility programs that have operated in Canada for many years. He testified that successful programs generally define covered products and producer obligations with greater precision and questioned whether Oregon’s broader program design was appropriately tailored to its objectives.
NAW rested its case on the third day of trial.
DEQ’s Case
DEQ began its case with testimony from Nicole Portley, the agency’s RMA Program Plan Lead. Portley testified extensively regarding the development and implementation of the RMA, DEQ’s review and oversight of CAA, and the division of responsibilities between the agency and the producer responsibility organization. On cross-examination, Portley was questioned about the confidentiality of CAA’s fee-setting methodology and fee schedules. Her testimony also addressed whether DEQ could directly perform functions assigned to the producer responsibility organization and whether the use of a private organization allows fees to be established and adjusted more quickly than would be possible through agency rulemaking.
Erin Saylor, manager of DEQ’s Office of Compliance and Enforcement, testified regarding the agency’s enforcement procedures and its calculation of civil penalties. Saylor testified that, as of the time of trial, DEQ had not initiated formal enforcement proceedings against a producer under the RMA. On cross-examination, she was unable to answer certain program-specific questions, including questions concerning how the responsible producer is identified in particular circumstances.
DEQ’s final staff witness was David Allaway, a senior policy analyst who temporarily assumed Portley’s program responsibilities beginning in May 2026. Allaway testified regarding DEQ’s RMA rulemaking and the policy considerations underlying Oregon’s approach to modernizing its recycling system.
On the final day of testimony, DEQ presented expert testimony from Scott Cassel, Chief Executive Officer of the Product Stewardship Institute, and Reid Lifset, a research scholar and resident fellow at the Yale School of the Environment and founding editor of the Journal of Industrial Ecology. Cassel testified regarding shortcomings in traditional municipal recycling systems and the rationale for shifting greater financial and operational responsibility to producers. Lifset addressed life-cycle assessment and eco-modulation, under which producer fees may be adjusted to reflect the environmental characteristics of particular products or packaging.
NAW recalled Dr. Lakhan in rebuttal. He testified that Oregon could pursue many of the RMA’s environmental objectives without relying on a private producer responsibility organization. He also questioned the size of CAA’s anticipated reserves and offered the opinion that the reserves could indicate that producers were assessed more than was necessary to meet the program’s immediate infrastructure and operating needs.
The parties presented competing accounts of the program throughout the trial. NAW characterized the RMA as imposing substantial, unpredictable, and insufficiently reviewable obligations on companies participating in interstate supply chains. DEQ maintained that it retains meaningful oversight of CAA and that the reporting, financing, and program-design requirements are reasonably connected to Oregon’s effort to improve recycling services and shift certain costs from local governments and ratepayers to producers.
Post-Trial Briefing
Rather than hearing closing arguments, Judge Simon invited the parties to submit post-trial briefs addressing any additional matters they believe require discussion. The judge indicated that the existing briefing was sufficiently thorough regarding the dormant Commerce Clause claim.
The court requested additional briefing on the following six questions relating to NAW’s due-process claim:
- As a threshold matter, is there a constitutionally protected property interest at stake? If so, what is that interest, and what is the legal source of that interest?
- Assuming a protected property interest exists, what process is constitutionally required, and what process has allegedly not been provided?
- NAW raised concerns regarding the binding arbitration provision in the Oregon Producer Participation Agreement Addendum. Do arbitration provisions in state or federal government contracts inform the analysis, or are those agreements distinguishable?
- If the RMA and its implementing regulations are otherwise constitutional, but a provision of the producer agreement or addendum presents a due-process problem, what is the appropriate result or remedy?
- What legal significance, if any, attaches to the RMA’s use of a third-party producer responsibility organization rather than having a state agency directly perform the relevant functions?
- Is the due-process challenge concerning the confidentiality of the fee-setting methodology premature when no party has sought that information through Oregon’s public-records process and pursued the available administrative and judicial appeal procedures?
The parties’ post-trial briefs are due July 31, 2026. Any request for oral argument must be submitted on Monday, August 3, 2026, after the parties have reviewed one another’s briefs.
Implications for Producers
As a reminder, the completion of the trial does not itself alter producers’ current obligations under the RMA. Unless a producer is protected by the existing preliminary injunction (which applies only to NAW members as of February 6, 2026), it should continue to evaluate and satisfy its registration, reporting, and payment obligations.
The court’s post-trial questions suggest that the immediate briefing will focus heavily on procedural due process, including whether producers possess a protected property interest, what opportunities they have to review or challenge assessments, the consequences of confidential fee-setting information, and the legal significance of assigning substantial program functions to a private producer responsibility organization. Given the strong and prolific testimony on the burdens on interstate commerce that the Act imposes, we are cautiously optimistic on the dormant commerce clause claim, but the court does not yet appear convinced of due process violations. The court is expected to rule on the merits by the end of August.
Once the parties’ post-trial briefings have been filed, we will review and provide a summary. Please do not hesitate to reach out if you wish to discuss the implications of the trial, or if you have any questions about your obligations under the Act or any other applicable EPR law.
This client alert is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have any questions regarding this update, or for more information about this topic, please contact any of the attorneys in our Environmental & Natural Resources Practice Group, or the attorney with whom you normally consult.
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