Federal and provincial environmental regulatory developments can at times, be overwhelming and confusing. Recently, the issue of managing and eliminating certain plastics has morphed into one issue. They are separate issues and it is important to keep track of these developments.
Federal Plastics Registry
As we noted in our April 30, 2024, blog, Environment and Climate Change Canada (ECCC) issued a notice that they were implementing a comprehensive plan to “reduce plastic pollution” aka, the Federal Plastics Registry.
In that blog, we stated that On April 19, 2024, ECCC issued a notice that “The Government of Canada is implementing a comprehensive plan to reduce plastic pollution, improve how plastic is made, used, and managed across its life cycle, and move toward a circular economy.”
The Registry will require producers of plastic products and service providers to report on the quantity of plastic collected for diversion, reused, repaired, remanufactured, refurbished, recycled, processed into chemicals, composted, incinerated, and landfilled.
Phase 1 of reporting to the Federal Plastics Registry will begin September 29, 2025. To that end, some law firms are recommending that companies should track plastic use now.
For more information, see the Federal Plastics Registry.
Plastic as a CEPA Toxic Substance
Separately, there are outstanding legal issues surrounding the listing of plastics as toxic in the Canadian Environmental Protection Act (CEPA). On November 16, 2023, the Federal Court of Canada released its decision in Responsible Plastic Use Coalition v. Canada (Environment and Climate Change Canada). 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.”
According to the Retail Council of Canada, “The November ruling stated that the Federal Government’s decision to list all PMI as toxic was too overly broad and lacked sufficient evidence, concluding that the government did not demonstrate that all plastics cause harm. The ruling also noted that the Federal Government was overreaching on provincial jurisdiction.”
From the law firm, Lavery, “The Federal Court…concluded that the Order was unconstitutional because it did not fall within the federal government’s criminal law power. Only substances that are toxic in ‘the real sense’ can be included on the list of toxic substances. They must be substances that are harmful, dangerous to the environment or human life, and truly have the potential to cause harm. In other words, according to the Federal Court, the power to regulate the broad and exhaustive category of ‘single-use plastics’ lies with the provinces.”
Federal Court of Appeal
The Attorney General of Canada appealed this decision with the Federal Court of Appeal on December 8, 2023. “The Federal Court of Appeal granted a stay of the judgment rendered on November 16, 2023, until disposition of the appeal, such that the Order and the Regulations remain in force, at least for the time being” (Lavery).
On June 25, 2024, The Federal Court of Appeal was in session to hear the Federal Government’s appeal on the November 2023 ruling. Note: much of the information below is from the article in the Retail Council of Canada.
At the Federal Appeals Court, the government argued that listing all PMI as toxic was not overly broad. The government stated that there are other broad categories of toxics and cited Volatile Organic Compounds (VOCs). The government also argued that the original form of the plastic is irrelevant to its ability to cause harm once it enters the environment, using physical examples such as plastic smothering coral reefs and choking animals.
Support for the appeal was also provided by non-governmental organizations including the Canadian Association of Physicians for the Environment, David Suzuki Foundation, Environmental Defense Canada, Greenpeace Canada, and Oceana Canada.
Counter-arguments from the lawyer representing the plastics manufacturers argued that the Federal Government has not provided enough scientific evidence to demonstrate that all PMI was entering the environment and causing harm. They called on the court to uphold the lower court’s ruling in their favour.
The Federal actions aside, British Columbia has moved forward with their own, “Single-Use and Plastic Waste Prevention Regulation.”
If you need assistance with an environmental issue (compliance, assessments, remediation, excess soil, litigation support, etc…), 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 has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for more than 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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