NAW v. Feldon: Bench Trial Day Five Summary (July 17, 2026)

The fifth and final day of the National Association of Wholesaler-Distributors (NAW) v. Feldon bench trial focused on questions surrounding the practicality and feasibility of administration of Oregon’s Plastic Pollution and Recycling Modernization Act (RMA). Oregon’s witnesses described how the Oregon Department of Environmental Quality (DEQ) considered various data in designing Oregon’s Extended Producer Responsibility (EPR) program and how modeling and detailed planning were used to ensure program feasibility, while NAW continued probing whether Oregon has the factual basis to conclude the program will function as intended, and whether the program impairs producers’ abilities to conduct business in complex domestic supply streams.

At the close of the evidence, Judge Michael H. Simon identified six questions that they would particularly like the parties to address in the post-trial briefs.

David Allaway, Senior Policy Analyst, Oregon DEQ

The day began with the continued testimony of Oregon DEQ Senior Policy Analyst David Allaway. On cross-examination, NAW questioned why Oregon DEQ was not in a position to oversee the program itself, given that Oregon is the oversight entity of the program. NAW also returned to a point raised earlier in the trial to question how producers and even state actors could discern changes in fees if fee methodology is protected from public view as confidential information.

Scott Cassel, Chief Executive Officer and Founder, Product Stewardship Institute (PSI)

Oregon next called Scott Cassel, Chief Executive Officer and Founder of PSI. Cassel testified that Oregon’s RMA is generally consistent with packaging EPR programs in other jurisdictions and with PSI’s 16 elements of an effective EPR program. Cassel explained the growing challenges municipalities have faced in recent years with handling waste streams. Cassel noted that the problem is likely to become worse with time, and that a systemic change in how waste streams are overseen is necessary to resolve this issue. Cassel’s testimony wove a narrative around the importance of EPR programs in addressing this need and bolstering support for local governments as they grapple with waste management costs.

On cross-examination, NAW questioned the empirical basis for several of Cassel’s conclusions and highlighted their limited analysis of Circular Action Alliance (CAA) Oregon’s program plan and the burdens imposed on distributors.

Reid Lifset, Research Scholar, Resident Fellow in Industrial Ecology, Yale School of the Environment, Yale University

Oregon’s final witness was Yale University Research Scholar Reid Lifset, an expert on industrial ecology and EPR. Lifset disputed the proposition that EPR programs should be evaluated solely by changes in recycling rates. Lifset explained that the RMA also seeks to reduce broader environmental impacts through life-cycle assessments and eco-modulation. Lifset further criticized the assumptions underlying NAW expert Dr. Calvin Lakhan’s estimates of consumer cost pass-through, although they agreed that some portion of EPR fees would likely be passed to consumers.

On cross-examination, Lifset acknowledged that eco-modulation can produce unintended consequences, that inconsistent requirements across jurisdictions can increase compliance costs, and that available data may be insufficient to determine whether eco-modulation will achieve its intended results. Lifset also acknowledged that they had not previously studied the specific effects of packaging EPR requirements on distributors in depth.

Calvin Lakhan, Ph.D., Project Director of the Circular Innovation Hub, Faculty of Environmental and Urban Change, York University

NAW then recalled Dr. Calvin Lakhan in rebuttal. Lakhan testified that Oregon’s RMA places an unusually strong emphasis on recycling-related outcomes and that its objectives could be pursued without assigning program functions to a private Producer Responsibility Organization (PRO). Lakhan also returned to concerns about the confidentiality of CAA Oregon’s model. Drawing on their own experience with EPR fee models, Lakhan testified that model operators can shift costs between material categories and that such manipulation may not be detectable without access to the model and its inputs. Lakhan further questioned CAA Oregon’s accumulation of reserves during the program’s first year.

Judge Simon’s Six Questions

At the close of evidence, Judge Simon advised the parties that they believed Dormant Commerce Clause issues had already been briefed thoroughly. Judge Simon’s questions instead focused on NAW’s procedural due process claim:

• What protected interest is at stake? Judge Simon characterized this as a threshold question: Has NAW identified a protected property interest that triggers procedural due process protections, and if so, what law creates that interest? Judge Simon noted that they did not understand NAW to be asserting a protected liberty interest.

• What process is constitutionally due? If a protected property interest exists, what procedures must Oregon DEQ or CAA Oregon provide, and in what respect are the procedures currently available inadequate?

• What is the significance of arbitration provisions in other laws? Judge Simon asked the parties to address whether federal or state statutes contain comparable requirements for binding arbitration without judicial review and whether those examples inform the due process analysis.

• What is the appropriate remedy if the producer agreement presents a constitutional problem? Judge Simon asked what the result should be if aspects of CAA Oregon’s producer agreement, including its arbitration provision, violate due process, but the RMA and Oregon DEQ’s regulations are otherwise lawful. This question will require the parties to address severability, including Oregon’s statutory severability rule.

• Does Oregon’s use of a private PRO have independent legal significance? Judge Simon asked whether the constitutional analysis changes because Oregon delegated program functions to CAA Oregon rather than directing Oregon DEQ to perform those functions itself.

• Is the confidentiality challenge premature? Finally, Judge Simon noted that no party appears to have submitted an Oregon public records request seeking CAA Oregon’s cost to manage (CTM) model from Oregon DEQ. Oregon’s public records process would require consideration of CAA Oregon’s asserted trade-secret interests, provide review by the Oregon Attorney General, and ultimately permit judicial review. Judge Simon therefore asked whether it is too early to conclude that the confidentiality of CAA Oregon’s CTM model violates due process.

The parties will submit simultaneous post-trial briefs on July 31, 2026. Judge Simon will then determine whether additional oral argument would be helpful. Judge Simon did not indicate how they intend to rule, but their questions suggest that the outcome may depend less on the validity of Oregon’s overall EPR policy and more on whether the particular powers and procedures assigned to CAA Oregon provide regulated producers with constitutionally sufficient process.

Daily summaries of past proceedings for this case can be reviewed on Bergeson & Campbell, P.C.’s Product Stewardship Blog^TM.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.