The federal trial that could reshape how states pay for recycling is heading into its final written round, and the judge has signaled the case may turn on a narrower question than either side expected. Lawyers in National Association of Wholesaler-Distributors v. Feldon file simultaneous post-trial briefs Thursday, July 31, answering six questions U.S. District Judge Michael H. Simon posed at the close of a five-day bench trial in Portland, according to a day-by-day trial summary kept by law firm Bergeson & Campbell. Simon has said he expects to rule on the merits by the end of August.
The suit is a constitutional challenge to Oregon’s Plastic Pollution and Recycling Modernization Act, the state’s “extended producer responsibility” law — in plain terms, a system that makes the companies that make and sell packaging pay for recycling it, rather than leaving the cost to households and city budgets.
Producers meet that obligation through a private nonprofit called a producer responsibility organization, or PRO; in Oregon, that is Circular Action Alliance. Trade groups led by the National Association of Wholesaler-Distributors argue the arrangement is unconstitutional. The case has been called a bellwether because roughly half a dozen states have passed similar producer-pays laws, and a ruling in either direction would ripple to all of them.
What changed at trial’s end is the ground the fight is now being fought on. Simon told the parties he considered the dormant Commerce Clause issues — the claim that Oregon’s law improperly burdens interstate commerce — already thoroughly briefed.
His six questions instead zero in on the challengers’ procedural due-process claim: whether the private recycling organization’s powers give regulated companies a fair, reviewable process. Simon asked what protected property interest is even at stake, what process the Constitution requires, and whether it matters that Oregon handed program functions to a private PRO instead of running the program through its own Department of Environmental Quality.
He asked what the remedy should be — including whether a single flawed provision could be severed — if the producer agreement’s binding-arbitration clause violates due process but the underlying law is otherwise lawful. And he asked whether the challenge to the confidentiality of the organization’s cost model is premature, noting no party has yet filed an Oregon public-records request to pry it loose.
Taken together, the summary’s authors wrote, the 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” the private organization “provide regulated producers with constitutionally sufficient process.” That is a materially narrower path to a ruling than a wholesale strike-down of producer-pays recycling.
The trial itself pitted dueling experts. Oregon called Scott Cassel of the Product Stewardship Institute, who testified the state’s law is consistent with effective producer-responsibility programs elsewhere and with the growing cost pressure recycling puts on local governments, and Yale industrial-ecology scholar Reid Lifset, who argued such programs should not be judged by recycling rates alone.
The challengers countered with York University’s Calvin Lakhan, who testified the arrangement leans unusually hard on recycling outcomes, could be run without handing functions to a private organization, and relies on a fee model whose confidentiality makes cost-shifting between materials hard to detect.
Texas does not have a producer-pays recycling law. Local governments have the ability to institute curbside programs in their municipalities and the state has considered a “bottle bill” in recent years — the older, simpler model that pays consumers a small deposit to return each container. Recycling advocates argue the economic case is being left on the table: the State of Texas Alliance for Recycling has estimated the state throws away billions of dollars in recoverable material each year, value that a deposit-return or producer-pays system is designed to capture.
Texas is also one of the states weighing in against a similar producer-pays law in California, giving the state a direct stake in how far courts let the model reach. The Dispatch examined that link in its earlier reporting on the Oregon case and Texas recycling.
Once Thursday’s briefs land, Simon will decide whether to hold additional oral argument before ruling. His end-of-August timeline means a decision that could set the terms for producer-pays recycling nationwide — and inform whether Texas lawmakers revisit either model in 2027 — is now weeks away.