The high-stakes legal challenge brought by the National Association of Wholesaler-Distributors (NAW) against the State of Oregon entered its fourth day of bench trial proceedings on July 16, 2026, shifting its focus from broad legislative intent to the granular, administrative mechanics of the Oregon Plastic Pollution and Recycling Modernization Act (RMA). As the defense presented its witnesses from the Oregon Department of Environmental Quality (DEQ), the courtroom became a theater for debating the practicalities of Extended Producer Responsibility (EPR) and the transparency of the state’s regulatory oversight. The day’s testimony underscored a fundamental tension: the state’s efforts to build a sustainable, producer-funded recycling infrastructure versus the industry’s concerns over due process, extraterritorial reach, and the delegation of state authority to private third-party organizations.
Administrative Oversight and the Transparency of Fee Methodologies
The morning session was dominated by the continued testimony of Nicole Portley, the Program Plan Lead for the RMA at the Oregon DEQ. Portley’s testimony was critical in establishing how the DEQ interacts with the Circular Action Alliance (CAA), the primary Producer Responsibility Organization (PRO) tasked with managing the program’s logistics. A central point of contention emerged regarding "Appendix G," a confidential document detailing the fee methodology that determines how much producers must pay into the system.
Under direct examination by the state, Portley sought to demystify the DEQ’s role, asserting that the agency maintains rigorous oversight of the CAA’s Oregon Program Plan. She testified that even the most sensitive components, including Appendix G, were subjected to internal DEQ review and revision before being approved. This testimony was intended to counter the plaintiff’s narrative that the state has effectively handed a "blank check" to a private entity to levy fees on wholesalers and distributors.
However, the cross-examination by NAW counsel highlighted significant barriers to public and producer transparency. Portley revealed that while Appendix G is technically a public record, it is not readily accessible. She noted that a formal request for the document would carry an estimated administrative cost of $1,500, primarily to cover the legal and technical "balancing test" required to determine which portions of the CAA’s proprietary information could be released without violating trade secret protections. The revelation that at least one party had already abandoned a request for the document due to this cost became a focal point for the plaintiffs, who argue that the lack of fee predictability constitutes a violation of the regulated parties’ rights.
The Mechanics of Enforcement and Due Process
The afternoon session turned to the legal teeth of the RMA, with testimony from Erin Saylor, Manager of the Office of Compliance and Enforcement at the Oregon DEQ. Saylor’s testimony was aimed at illustrating a measured, multi-step enforcement process designed to favor compliance over punishment. She explained that the DEQ does not immediately resort to litigation or heavy fines; instead, the process begins with warnings and notices of non-compliance, providing producers with ample opportunity to remedy issues.
Saylor detailed the civil penalty assessment process, noting that the agency considers several mitigating factors, such as a company’s history of compliance and the economic impact of the fine. This "graduated" approach is a cornerstone of the state’s defense, suggesting that the RMA is not an arbitrary or punitive regime but a collaborative regulatory framework.
NAW’s cross-examination, however, sought to expose potential flaws in the delegation of enforcement power. The plaintiffs questioned Saylor on the discrepancies between how the DEQ and the CAA identify non-compliant producers. A significant moment occurred when NAW pointed out that DEQ enforcement staff do not have access to the aforementioned Appendix G. The implication was clear: if the enforcement body responsible for assessing penalties for fee-related violations does not understand the underlying fee methodology, the fairness and accuracy of those penalties are called into question. This line of questioning aimed to bolster NAW’s argument that the RMA creates an opaque system where the "judge, jury, and executioner" roles are blurred between the state and a private organization.
Legislative Rationale and the Economic Modeling of the RMA
The final witness of the day was David Allaway, a Senior Policy Analyst at the Oregon DEQ and a key figure in the Recycling Steering Committee that informed the RMA’s creation. Allaway’s testimony provided the "why" behind the "how," grounding the administrative details in the broader context of environmental necessity and economic modeling.
Allaway testified to the extensive research and data analytics that underpinned the legislation. He explained that the RMA was not a sudden regulatory whim but the result of years of modeling designed to calculate the environmental benefits of a modernized recycling system against the projected costs to producers and consumers. His testimony highlighted the "market failure" of the previous recycling system, which struggled to manage the explosion of plastic waste and the fluctuating global markets for recycled materials.
The state used Allaway’s testimony to argue that the RMA is a rational and evidence-based response to a legitimate state interest. By detailing the rulemaking process, Allaway emphasized the level of planning and public input that went into the regulations, attempting to refute the plaintiff’s claim that the law is an overreaching and poorly conceived mandate.
Background: The Path to NAW v. Feldon
To understand the weight of the Day Four testimony, it is essential to look at the origins of the Oregon Plastic Pollution and Recycling Modernization Act. Passed in 2021 as Senate Bill 582, the RMA made Oregon one of the first states in the nation to adopt an EPR model for packaging. Under this system, the companies that produce and distribute packaging materials are responsible for the end-of-life management of those materials, shifting the financial burden away from local governments and taxpayers.
The implementation of the RMA has been a multi-year process:
- 2021: SB 582 is signed into law.
- 2022-2023: The DEQ engages in extensive rulemaking and the formation of the Producer Responsibility Organization.
- 2024: The Circular Action Alliance is selected as the primary PRO.
- 2025: Producers are required to start registering and reporting supply data.
- July 2026: The bench trial begins to address the legal challenges brought by the NAW.
The NAW, representing a broad coalition of wholesalers and distributors, argues that the law imposes unconstitutional burdens. Their primary legal theories likely involve the Dormant Commerce Clause—arguing that Oregon is regulating commerce that occurs entirely outside its borders—and the Non-Delegation Doctrine, which suggests the state cannot give a private entity (the CAA) the power to set fees and manage a state-mandated program without stricter oversight.
Analysis: Implications for National EPR Policy
The outcome of NAW v. Feldon is being watched closely by environmental regulators and industry leaders across the United States. Oregon’s model is a "vanguard" policy; similar laws have since been passed in Maine, Colorado, and California. If the court finds that Oregon’s administrative structure lacks transparency or improperly delegates authority, it could trigger a wave of similar challenges in other states, potentially stalling the national momentum toward EPR.
The testimony regarding Appendix G is particularly significant. It highlights a common friction point in EPR programs: the protection of proprietary business data versus the public’s right to know how state-mandated fees are calculated. If the court rules that the $1,500 barrier to accessing fee methodologies is unreasonable, it could force a complete overhaul of how PROs operate, requiring much higher levels of public disclosure.
Furthermore, the "extraterritoriality" argument raised during Portley’s cross-examination touches on a sensitive constitutional issue. If a wholesaler in another state is forced to change its packaging or reporting practices to comply with Oregon law, does that constitute an illegal interference with interstate commerce? Portley’s admission that the DEQ did not specifically investigate impacts on other states could be a vulnerability the plaintiffs seek to exploit in their closing arguments.
Timeline of Remaining Proceedings
The trial is expected to conclude shortly, with the following schedule anticipated:
- July 17, 2026: David Allaway will return to the stand for continued testimony and cross-examination. This is expected to be the final day of witness testimony.
- Late July 2026: Both parties are expected to submit post-trial briefs summarizing their legal arguments based on the evidence presented.
- Fall 2026: A written ruling from the bench is anticipated, though the complexity of the constitutional questions could extend the deliberation period.
As the trial nears its conclusion, the focus remains on whether the DEQ can prove that its "modernized" recycling system is a fair and transparent exercise of state power, or if the NAW will succeed in portraying it as an opaque and unconstitutional burden on the wheels of commerce. The proceedings will resume tomorrow at 9:00 a.m. PDT, with Allaway’s testimony serving as the final piece of the state’s defense of one of the most ambitious environmental laws in recent Oregon history.
