A ruling in National Association of Wholesaler-Distributors v. Feldon, the case that could determine whether Oregon’s Plastic Pollution and Recycling Modernization Act (RMA) survives in its current form, is on the horizon.
US District Judge Michael H. Simon told the parties from the bench that he intends to rule by the end of August.
With no additional oral argument on the calendar and the last round of briefing closed, attorneys who have tracked the case are starting to stake out predictions. Here’s how the case got to this point, and what they think comes next.
The timeline
February 6, 2026: Judge Simon grants NAW a preliminary injunction, halting Department of Environmental Quality enforcement of the RMA against NAW and its members while the case proceeds.
The court dismissed several of NAW’s claims but preserved the Dormant Commerce Clause and Due Process Clause challenges for trial.
July 13–17, 2026: A five-day bench trial takes place in Portland. Witnesses include DEQ staff, Circular Action Alliance (CAA) representatives and expert witnesses for NAW.
At the close of evidence, Simon told the parties he is still mulling over a decision. “I truly have not made up my mind on what to do and how to analyze this problem and what conclusion to reach,” he said.
July 31, 2026: Simultaneous post-trial briefs are due, addressing six questions Simon posed from the bench. The inquiries focused on procedural due process, including what remedy would apply if CAA Oregon’s producer agreement, specifically its arbitration provision, is found unconstitutional while the underlying statute is not.
August 4, 2026: Simon declines to hear additional oral argument, finding it unnecessary.
August 6, 2026: Simon requests one more, narrower round of supplemental briefing: whether the RMA’s exemption for Oregon public bodies that qualify as “small producers” is facially discriminatory under the Dormant Commerce Clause. DEQ’s brief is due August 7; NAW’s response, August 10.
What attorneys say
The detail getting the most attention from firms watching the case is what Simon hasn’t requested. He told the parties the Dormant Commerce Clause issues were fully briefed and needed no further submission, while devoting all six of his post-trial questions, plus this latest request, to due process and a single narrow statutory exemption.
Attorneys at Foley & Lardner called that pattern hard to ignore, writing that “a court that needs more briefing on due process but none on the Dormant Commerce Clause has likely made up its mind” on that claim.
Catherine W. Johnson of Environmental General Counsel reached a similar conclusion in a client note, predicting the court is unlikely to strike down the RMA’s basic architecture.
Instead, she wrote, the court could invalidate the public-body exemption specifically, or bar DEQ from approving CAA Oregon’s Program Plan unless it builds in more transparency or producer participation in fee-setting.
In its August 7 filing, DEQ argued that striking down a single provision wouldn’t be grounds to dismantle the entire program, pointing to Oregon’s severability statute, ORS 174.040, which allows a law to survive a partial constitutional defect unless the statute says otherwise, the valid and invalid provisions are inseparably linked, or the remainder can’t function without the invalid part.
The due process questions Simon is weighing align closely with what NAW has argued from the start. Karen Harned, NAW’s director of litigation and legal policy, described the objection to the PRO-based model in blunt terms.
“This model, I think, is, or we think, is completely unconstitutional. It lacks due process, and it empowers the PRO to act as a governmental entity in every step of the way,” she said in an earlier interview with Resource Recycling.
CAA, which is not a party to the Oregon case but implements the RMA, has pushed back on the broader transparency critique that runs through NAW’s case.
CAA CEO Jeff Fielkow told Resource Recycling in an earlier interview that the organization’s fee-setting process has been open to scrutiny from the start.
“We’ve been transparent. We continue to be transparent. We will always be transparent,” Fielkow said. “Everything we’ve ever done — when we build a program plan or an idea — we take it to public consultation. We’ve had thousands of people on our webinars. We post our documents publicly. We take feedback from interested parties all the time, and we make those changes. There’s never been anything done in a secretive manner.”
Eyes on Oregon
NAW has since brought parallel constitutional challenges to California’s and Colorado’s EPR programs. Other trade groups have raised similar claims in additional states.
The Dormant Commerce Clause arguments in those cases target the same basic structure Oregon uses, a single state-selected PRO funded by interstate producer fees.
Simon’s anticipated ruling is likely to shape how those cases are argued next.
