NAW v. Feldon: Bench Trial Day Three Summary (July 15, 2026)
The third day of the National Association of Wholesaler-Distributors (NAW) v. Feldon bench trial continued to question how Oregon’s Plastic Pollution and Recycling Modernization Act (RMA) may impact supply chains, distribution channels, and producers of different sizes. NAW called additional witnesses to testify regarding general economic principles, potential producer consequences, and elements of the RMA that are similar to or distinct from programs in other jurisdictions. NAW continued to elicit testimony that questioned the economic feasibility of the RMA’s implementation of the program and raised concerns about potential harms to supply chains under the current iteration of the law. Through cross-examination, Oregon sought to establish that Circular Action Alliance Oregon (CAA Oregon) has accounted for many of these concerns, and that certain expert testimony was not specific to Extended Producer Responsibility (EPR).
NAW concluded examination of Dr. Douglas Thomas and called a final witness. The day ended with Oregon calling its first witness. Highlights from each witness’s testimony are included below.
Douglas Thomas, Ph.D., Henry E. McWane Professor of Business Administration, University of Virginia Darden School of Business
NAW resumed its direct examination of Dr. Douglas Thomas, who discussed the practical issues derivative of unpredictable fees due to lack of program transparency. Thomas noted that producers are unable to, from a logistics perspective, retroactively recoup costs associated with increased fees from consumers. A recurring theme throughout the morning was interstate commerce. Thomas explained that supply chains are optimized across regional and national networks rather than on a state-by-state basis, and testified that Oregon-specific compliance obligations could influence pricing, inventory management, supplier relationships, warehouse locations, and distribution decisions well beyond Oregon’s borders. Thomas further suggested that differences among emerging state EPR programs could compound these operational burdens as additional states adopt unique reporting requirements and fee structures.
Cross-examination focused on testing the scope of these conclusions. Oregon questioned whether many of the identified concerns reflected policy design choices rather than constitutional defects and explored whether future federal legislation establishing a uniform national EPR framework could alleviate many of the interstate commerce issues identified by NAW’s expert. Thomas acknowledged that greater national uniformity would likely reduce many of the supply chain complications described, while maintaining that Oregon’s current program creates significant structural burdens on interstate commerce.
Calvin Lakhan, Ph.D., Project Director of the Circular Innovation Hub, Faculty of Environmental and Urban Change, York University
Dr. Calvin Lakhan, Project Director of the Circular Innovation Hub within York University’s Faculty of Environmental and Urban Change, established their expert background in economics and the intersection between environmental studies and economic concepts. Lakhan testified as to the issues with implementing an EPR program for a broad category of materials, stating that EPR is much more successful when the program targets a narrow or limited, specific range of products. Lakhan testified, additionally, that an impact of the RMA as established will be higher costs passed to consumers, and that low-income consumers will be disproportionately impacted. Drawing on more than two decades of Canadian experience, Lakhan argued that the theoretical goals commonly associated with packaging EPR, including incentivizing improved package design, reducing waste management costs, stimulating recycling infrastructure investment, and strengthening secondary materials markets, have not consistently been borne out by empirical evidence. Lakhan also contrasted Canada’s relatively mature recycling infrastructure with Oregon’s developing system, suggesting that implementing complex fee structures before underlying recycling infrastructure is fully developed creates additional challenges.
On cross-examination, Oregon highlighted how much of Lakhan’s expertise and experience focused on Canadian EPR programs. Lakhan pointed out that there are currently no mature EPR programs in the United States to analyze.
Nicole Portley, Program Plan Lead, RMA, Oregon Department of Environmental Quality (DEQ)
The afternoon concluded with an important procedural milestone, as NAW rested its case after presenting its final expert witness. Oregon then began presenting its case-in-chief, calling Nicole Portley, Program Plan Lead for RMA at DEQ, as its first witness. Portley, who has been closely involved in developing and implementing Oregon’s RMA through the CAA, began laying the foundation for Oregon’s position that the RMA’s fee structure and producer responsibility framework are designed to advance the statute’s environmental objectives while providing producers with a workable path toward compliance.
Portley’s testimony, which began late in the afternoon and will continue into Thursday, is expected to provide Oregon’s first detailed response to NAW’s claims regarding fee transparency, program administration, and the practical operation of Oregon’s packaging EPR system.
Proceedings will resume July 16, 2026. To dial-in and listen to live proceedings, expected to continue daily beginning at 9:00 a.m. (PDT) through July 17, 2026, dial +1 (571) 353-2301, ID 812980324#. Daily summaries of the proceedings can be reviewed on Bergeson & Campbell, P.C.’s Product Stewardship BlogTM.