In August 2022, we began to report that the Federal Ban on certain plastics was facing legal challenges. Ultimately, this case wound up in Federal Court. Plaintiffs (Responsible Plastic Use Coalition, Dow Chemical of Canada, Imperial Oil, and Nova Chemicals) argued that the Order designating plastics as toxic under the Canadian Environmental Protection Act (CEPA) was unconstitutional.
On November 16, 2023, the Federal Court of Canada released its decision in Responsible Plastic Use Coalition v. Canada (Environment and Climate Change). The Court declared that the federal government’s Order adding plastic-manufactured items (PMI) to the Toxic Substances List in CEPA was “both unreasonable and unconstitutional.”
Background – Canadian Environmental Protection Act
At the heart of the Federal ban on certain plastics was the designation of plastics as toxic under CEPA. According to the Government of Canada “Under CEPA, both the Minister of Environment and Climate Change and the Minister of Health are responsible for developing a list of substances which must be assessed in a timely manner to determine if they are ‘toxic’ or capable of becoming ‘toxic.’ This list is known as the Priority Substances List (PSL).”
For perspective, the CEPA toxic substance list includes chemicals/substances such as vinyl chloride, asbestos, benzene, lead, Toluene diisocyanates, etc…. While the list also include microbeads, the classification of certain plastics as toxic seemed, at least to some, as a regulatory overstep.
“Fundamentally, the Court took issue with the breadth of the Order and what it found to be the lack of evidentiary support for such a broad designation” (Photo by Saindur Enviro on Unsplash).
Background – Developing the Plastics Ban
On April 23, 2021, a notice was published in the Canada Gazette adding Plastic Manufactured Items to the list of CEPA Toxic Substances. This step enabled the Minister of the Environment and the Minister of Health to propose risk management measures under CEPA on certain plastic manufactured items to manage the potential ecological risks associated with those items becoming plastic pollution.
On December 21, 2021, draft regulations prohibiting certain single-use plastics were published for public comment.
On June 20, 2022, final regulations were published to prohibit single-use plastics including: checkout bags; cutlery; foodservice ware made from or containing problematic plastics that are hard to recycle; beverage ring carriers; stir sticks; and straws (with some exceptions).
Rationale on Plastics Ban
According to a blog by Dentons, “The (Federal) RIAS (Regulatory Impact Analysis Statement) concluded that all PMI (Plastic Manufactured Items) had the potential to become plastic pollution and that such pollution posed an ecological hazard. That was the basis for the designation of all PMI as being toxic substances.”
Responsible Plastic Use Coalition v. Canada
In discussing the case, the blog by Dentons stated that when deciding whether the Order adding PMI to the Toxic Substances List was reasonable, the Court examined whether the Minister of Environment and Climate Change, the Minister of Health, and the federal Cabinet complied with the requirements of CEPA. “Doing so required the Court to examine the reasoning provided in the Science Assessment and the RIAS to understand whether it was reasonable for federal Cabinet to designate PMI as toxic.”
From the Dentons’ blog, “Fundamentally, the Court took issue with the breadth of the Order and what it found to be the lack of evidentiary support for such a broad designation. While the RIAS concluded that ‘all plastic manufactured items have the potential to become plastic pollution,’ the RIAS and Science Assessment did not provide the evidence to ‘bridge the gap’ between that statement and the decision to list all PMI on the Toxic Substances List.”
RPRA Statement
The Resource Productivity and Recovery Authority issued the following statement after the ruling, “The Federal Court in Canada has overturned the country’s ban on single-use plastics, deeming the policy ‘unreasonable and unconstitutional.’ The court found that the classification of plastics in the cabinet order was too broad to be listed as toxic under the Canadian Environmental Protection Act.”
The federal government will appeal the decision and environmental groups have stated they will continue to pursue efforts to ban plastics in Canada.
If you need assistance with an environmental-related matter, contact Christopher Pare’, P.Geo. Q.P. at 519-948-7300, Ext. 114.
Dragun Corporation does not use artificial intelligence in drafting our blogs or any other material.
Alan Hahn drafted this blog. Alan holds an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years. He has written hundreds of blogs and articles. His published work includes HazMat Magazine, BizX Magazine, Michigan Lawyers Weekly, GreenStone Partners, Manure Manager Magazine, and Progressive Dairy.
Christopher Paré, P.Geo, reviewed this blog. Chris is a senior geoscientist and manager of Dragun’s Windsor, Ontario, office. Chris has more than 30 years of experience on projects ranging from environmental site assessments (Phase One/Two ESA), excess soils, remedial investigations, soil and groundwater remediation, Permits to Take Water, Records of Site Conditions, vapour intrusion, and site decommissioning. Chris is a frequent speaker, author, and expert witness. See Chris’ bio.
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