Federal Court Overturns Ottawa’s Classification of Plastics as Toxic, Deeming It ‘Unreasonable and Unconstitutional’

EDMONTON ALBERTA: JULY 5, 2022. Single use plastic seen in a storm drain along Whyte Ave. in Edmonton Alberta, July 5, 2022. City council on Monday voted to ban plastic bags, straws, and other single-use items. Jason Franson for Postmedia

In a landmark decision, a Federal Court judge has declared the federal government’s move to list plastic items as toxic under the Canadian Environmental Protection Act (CEPA) as “unreasonable and unconstitutional.” The ruling, delivered by Justice Angela Furlanetto, challenges the cornerstone of Ottawa’s environmental policy regarding single-use plastics.

The decision, released on Thursday, stems from a case brought forward by the Responsible Plastics Use Coalition, alongside major industrial players in the plastics sector such as Dow Chemical, Nova Chemicals Corporation, and Imperial Oil. The coalition argued that the government lacked sufficient scientific evidence to justify the sweeping categorization of plastic manufactured items as toxic.

Federal regulations are supposed to prohibit the sale of single-use plastic checkout bags, cutlery, food service ware, stir sticks and straws in Canada after December 20. (AFP via Getty Images)

Justice Furlanetto criticized the broad classification of plastics under CEPA, stating, “There is no reasonable apprehension that all listed [plastic manufactured items] are harmful.” Her ruling emphasized that not every item within the category has the potential to create a reasonable apprehension of harm, thus overstepping the bounds of the Act.

The ruling directly impacts the federal government’s ban on certain single-use plastic items, including plastic checkout bags, cutlery, and food service ware. The regulations banning these items are already being phased in, with a full ban on their sale and export planned by the end of 2025.

Environment Minister Steven Guilbeault expressed disappointment, stating, “Canadians have been loud and clear that they want action to keep plastic out of our environment.” He indicated that the government is “strongly considering an appeal,” reinforcing their commitment to fighting plastic pollution.

Minister of Environment and Climate Change Steven Guilbeault says the government is considering appealing the decision. (Sean Kilpatrick/The Canadian Press)

Environmental advocates, like lawyer Lindsay Beck who represented intervening environmental groups, called the decision “disappointing.” Beck emphasized the significance of the ruling in hampering the government’s ability to address the plastic pollution crisis.

Alberta Premier Danielle Smith and Environment Minister Rebecca Schulz viewed the ruling as a pushback against “federal overreach.” They urged the federal government not to appeal the decision and to remove plastic manufactured items from the toxic substance list, highlighting the economic impact on Alberta’s petrochemical sector.

While the ruling quashed the original order-in-council, it did not address the constitutional validity of Bill S-5, which also deals with plastics regulation. This leaves some ambiguity regarding the future of the single-use plastics ban.