The fifth and final day of the NAW v. Feldon bench trial centred on whether Oregon’s Extended Producer Responsibility programme is practically workable and legally sound.
The case involves a challenge by the National Association of Wholesaler-Distributors to Oregon’s Plastic Pollution and Recycling Modernization Act, known as the RMA.
Oregon’s witnesses explained how the Oregon Department of Environmental Quality used modelling and detailed planning to demonstrate the programme’s feasibility before launch.
NAW continued pressing whether Oregon has sufficient factual grounding to conclude the programme will function as intended within complex domestic supply chains.
Oregon DEQ Senior Policy Analyst David Allaway faced cross-examination over why the DEQ was not positioned to oversee the programme directly, given its role as the oversight entity.
NAW also questioned how producers and state actors could detect changes in fees when fee methodology is shielded from public view as confidential information.
Scott Cassel, Chief Executive Officer and Founder of the Product Stewardship Institute, testified that Oregon’s RMA is broadly consistent with packaging EPR programmes in other jurisdictions and with PSI’s 16 elements of an effective EPR programme.
Cassel warned that waste management challenges facing municipalities are likely to worsen over time and that systemic change in how waste streams are governed is necessary.
Yale University Research Scholar Reid Lifset, an expert in industrial ecology and EPR, disputed the view that EPR programmes should be judged solely by changes in recycling rates.
Lifset explained that the RMA also pursues broader environmental goals through life-cycle assessments and eco-modulation, while acknowledging that eco-modulation can produce unintended consequences.
Lifset further conceded 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.
NAW recalled Dr. Calvin Lakhan, Project Director of the Circular Innovation Hub at York University, who testified that Oregon’s RMA places an unusually strong emphasis on recycling-related outcomes.
Lakhan argued that the RMA’s objectives could be pursued without assigning programme functions to a private Producer Responsibility Organisation and raised concerns about the confidentiality of the Circular Action Alliance Oregon’s cost model.
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.
At the close of evidence, Judge Michael H. Simon identified six questions for the parties to address in post-trial briefs, focusing primarily on NAW’s procedural due process claim rather than Dormant Commerce Clause issues.
Judge Simon asked the parties to address what protected property interest is at stake, what process is constitutionally required, and what significance should be attached to arbitration provisions found in comparable laws.
The judge also asked what remedy would be appropriate if the producer agreement’s arbitration provision violates due process but the RMA and DEQ regulations are otherwise lawful, raising questions of severability.
Judge Simon further questioned whether Oregon’s delegation of programme functions to a private body rather than the DEQ carries independent constitutional significance.
Finally, Judge Simon asked whether the confidentiality challenge is premature given that no party appears to have submitted an Oregon public records request seeking the CAA Oregon cost-to-manage model.
The parties will submit simultaneous post-trial briefs on 31 July 2026, after which Judge Simon will consider whether further oral argument is necessary.