Court erred in ruling against Ottawa’s decision to list plastics as toxic, lawyer argues

Government lawyers argued Tuesday that a lower court erred when it ruled that the federal government’s decision to list plastics as toxic was unreasonable and unconstitutional.

The federal government’s general counsel, Joseph Cheng, led the government’s appeal before the Federal Court of Appeal in Ottawa.

In November, Federal Court Justice Angela Furlanetto ruled that Ottawa’s decision to classify plastic-manufactured items (PMI) as toxic was too sweeping. Furlanetto concluded that the federal government did not demonstrate that all plastics cause harm and that it was trespassing on provincial jurisdiction.

“PMI was too broad to be listed on the List of Toxic Substances,” Furlanetto wrote in her November judgment. “This breadth renders the Order both unreasonable and unconstitutional.”

The original case was brought by major industry players, including Dow Chemical, Imperial Oil and Nova Chemicals. The Alberta and Saskatchewan governments intervened in the case and backed them.

In 2021, the Liberal government listed all plastic items as toxic under the Canadian Environmental Protection Act. The listing was a precursor to enable the federal environment minister to proceed with regulations to ban single-use plastic items nationally.

The listing could have opened the door to Ottawa banning other plastic items beyond straws, grocery bags, and stir sticks.

Those regulations were part of Environment Canada’s plan to address pollution and reduce plastic waste. The Liberal government quickly appealed the November ruling.

The federal government’s lawyer said the government needed to list all plastics as toxic because once plastics break down in the environment into tiny pieces, they often become unrecognizable.

Cheng also told the justices that the original form a plastic item took was “irrelevant.” He said the point is to prevent the harm.

“To put it bluntly, it doesn’t matter to the bird whether the plastic that’s blocking its digestive system started as a plastic fork or knife. It doesn’t matter to a coral reef that is being smothered whether it is being smothered by a plastic net or a plastic bag,” Cheng said.

“Likely we will never know the answer to that question anyway. The fact is all plastic manufactured items have the ability to cause harm because of their compositional structure.”

Justice Sylvie Roussel questioned Cheng about the government’s decision to list all plastics as toxic when it had previously opted to list individual substances, like carbon dioxide or lead, as toxic.

Cheng countered that some of the 150 substances listed as toxic under the country’s environmental legislation are also broad categories that comprise thousands of substances. Cheng cited volatile organic compounds (VOCs), a large group of chemicals commonly found in both indoor and outdoor air that affect air quality.

“Like every substance on the list, they are not always harmful,” Cheng said. “There are certain applications and certain instances of which where they become harmful.”

Alberta calls on feds to drop appeal

The lawyer representing the plastics manufacturers called on the court to uphold the lower court’s ruling.

“The essence of this judicial review application is that no matter how aspirational, progressive and well-intentioned the government’s environmental policy may be, the government must abide by the statutory constraints set by Parliament and the government must be guided by evidence-based decision making,” said lawyer Ewa Krajewska.

Krajewska said the federal government did not present enough science to demonstrate that all plastic-manufactured items were entering the environment and causing harm.

The Alberta government, which is also intervening in the case, said in a media statement it’s “past time” for Ottawa to drop its appeal.

“We are disappointed the federal government has chosen to appeal this ruling and continues to overreach their jurisdiction and impair investor confidence in the petrochemical sector,” said Ryan Fournier, press secretary to Alberta’s environment minister, in the media statement.

B.C. government backs Ottawa

The government of British Columbia is backing Ottawa’s approach to regulating plastic waste and is intervening in the case.

Trevor Bant, legal counsel for B.C.’s attorney general, appeared before the justices Tuesday to support the government’s decision to list plastic-manufactured items as toxic.

“British Columbia takes the view that the order is constitutional. It is within federal jurisdiction and I generally agree with the submissions that have been made on behalf of Canada,” Bant said.

In a statement, Matthew Borghese, spokesperson for B.C.’s Ministry of Environment and Climate Change Strategy, said that “regardless of the outcome of the federal appeal, B.C. will continue to regulate plastics and protect our environment.”

B.C.’s role in supporting the appeal helps bolster the federal government’s argument that it is on solid constitutional grounds, according to one environmental group and intervenor in the case.

“We are now seeing that plastics have become this larger-than-life issue,” said Anthony Merante, the senior plastics campaigner at Oceana Canada.

“(Plastic) is in the air we breathe, in rain clouds, in our food, and has been found in our blood. This problem may be too large for just one government to take into its own hands, but cooperative regulation could help.

“And that is really what B.C. is arguing in court.”