On November 16th, the Federal Court overturned the Government of Canada’s ban on single-use plastic deeming the policy “unreasonable and unconstitutional.”
In the ruling, Justice Angela Furlanetto wrote that the category of plastic manufactured items was too broad to be given a blanket toxicity label under federal law [List of Toxic Substances in Schedule 1] and the government acted outside of its authority.
“There is no reasonable apprehension that all listed [plastic manufactured items] are harmful,” Furlanetto wrote.
The decision has essentially quashed a cabinet order that listed plastic manufactured items, such as plastic bags, straws, and takeout containers, as toxic under the Canadian Environmental Protection Act (CEPA).
Environment and Climate Change Canada (ECCC) Minister Steven Guilbeault said in a statement that the federal government is “strongly considering an appeal” of the decision.
“Canadians have been loud and clear that they want action to keep plastic out of our environment,” he said. “We will have more to say on next steps soon.”
The decision has implications for the government’s ban on six single-use plastic items. The government is only able to regulate substances for environmental protection if they are listed as toxic under CEPA.
The decision found that it was not reasonable to say all plastic manufactured items are harmful because the category is too broad.
The regulations banning plastic items are already being phased in, with a ban on manufacturing and importing six different categories already in place, and a full ban on their sale and export planned by the end of 2025.
Regulating waste management is generally a provincial responsibility. The government is only able to regulate substances for environmental protection if they are listed as toxic under the Canadian Environmental Protection Act.
The judge also wrote that Ottawa’s decision “poses a threat to the balance of federalism” because it didn’t restrict its regulations to those plastics that have “potential to cause harm to the environment.”
Alberta Premier Danielle Smith said in a statement that the decision “demonstrates a continued pattern of federal overreach intended to subvert the constitutionally protected role and rights of provinces,” and that the ban has had “wide-ranging consequences for Alberta’s economic interests.” She said the ban has put thousands of jobs and billions of investments at risk.
“Alberta is proudly home to Canada’s largest petrochemical sector, a sector with more than $18 billion in recently announced projects that were needlessly put in jeopardy by a virtue-signalling federal government with no respect for the division of powers outlined in the Canadian Constitution,” she said. She urges the federal government not to appeal the decision and to immediately delete ‘plastic manufactured items’ from [the toxic substance list].
The case was brought by the Responsible Plastic Use Coalition (RPUC) and several chemical companies that manufacture plastics including Dow Chemical, Imperial Oil and Nova Chemicals. They argued that Ottawa failed to demonstrate it had enough scientific evidence to justify the regulations. The Provinces of Alberta and Saskatchewan also intervened in the case.
The case dealt specifically with an order-in-council that originally added plastic manufactured items to the toxic substance list. Those items were then listed as toxic by law after Bill S-5 received royal assent in June.
Ottawa tried to argue that the judge’s ruling will not affect its single-use plastics ban due to S-5’s passage. While Furlanetto quashed the original order-in-council, she didn’t rule on the constitutional validity of S-5.
But Lindsay Beck, a lawyer who acted on behalf of environmental groups that intervened in the case, said that by quashing the order-in-council, the judge effectively struck down the government’s reasoning for adding plastics to the toxic substance list under S-5.
In 2020, the federal government published a scientific assessment of plastic looking at the harms caused by both macroplastics (plastics greater than five millimetres) and microplastics (plastic particles less than or equal to five millimetres.) It found that plastics have the potential to adversely affect the environment and human health, and recommended efforts to reduce plastic.
The government identified six single-use plastic items that met the requirements of a ban or a restriction. They included plastic checkout bags, stir sticks, six-pack rings, cutlery, straws and food service items. It then engaged with the public over plans to add these items as toxic under the Act.
While some organizations and municipal governments supported the move, plastic industry stakeholders argued that changing the Act wasn’t the appropriate tool to manage plastic waste and suggested the feds leave it to the cities or provinces.
In a brief statement after the ruling, the Responsible Plastic Use Coalition applauded the court’s decision.
“In the interest of Canadians who rely on plastic products that are essential to everyday life, we believe that federal government and industry can work collaboratively to reduce plastic waste and we look forward to developing solutions together,” the statement read.