Canadian Federal Court Invalidates Designation of All Plastics as Toxic
A Canadian federal judge ruled that the inclusion of all plastic manufactured items (PMI) as “toxic substances” under the Canadian Environmental Protection Act (CEPA) is both “unreasonable and unconstitutional.” The challenge, considered by the Court, was brought by a coalition of plastics companies in Responsible Plastic Use Coalition v. The Minister of the Environment and Climate Change, 2023 FC 1511, Docket: T-824-21. The decision may also have the effect of upending the Single Use Plastics regulation in Canada, which prohibits the manufacture, import, and sale of six SUP articles.
PMI were listed as toxic under Schedule 1 of CEPA in 2021 following a rulemaking process initiated by Environment Canada and concluded by order of the Administrator-in-Council/Governor-in-Council (GIC). The plastics coalition’s challenge asserted that this was not a proper use of the GIC’s authority and does not comply with the statutory scheme under CEPA. They contended that the listing for PMI is too broad, that PMI is not a “substance” or “class of substances” that could fall under the List of Toxic Substances in Schedule 1 of CEPA, and that the proper scientific analysis and risk assessments were not completed to demonstrate that PMI are toxic.
The plastics coalition further contended that the decision of the Minister of Environment and Climate Change (MECC) to deny requests for a Board of Review to assess the risks alleged by Environment Canada to be associated with PMI, and its proposed addition to Schedule 1, was unreasonable.
On November 16, 2023, Judge Angela Furlanette ruled, “The Order Adding a Toxic Substance to Schedule 1 [of CEPA] is retroactively quashed and declared invalid and unlawful as of April 23, 2021.” The Court found that “PMI was too broad to be listed on the List of Toxic Substances in Schedule 1 and this breadth renders the Order both unreasonable and unconstitutional.”
The suit also included the Attorney General for the Province of Saskatchewan and the Attorney General for the Province of Alberta, who argued that the Order was unconstitutional. They asserted that it falls outside of the federal criminal law power under the Canadian constitution, which wrested away from the provinces their primacy over the regulation of the environmental impact of plastics generally, as opposed to only those “that truly have the potential to cause harm to the environment.”
The Schedule 1 listing permitted the Canadian government to enact the Single-Use Plastics Prohibition Regulation. (See the Packaginglaw.com article, Canada Passes Single-Use Plastics Ban, for more information on that regulation.) Thus, the finding by the Court declaring the Order invalid could impact ongoing litigation on the validity of that regulation as well.
The ruling does not remove PMI from the list of toxic substances since, as Judge Furlanette noted, the Court does not have the authority to “add” or “delete” substances from the current Schedule 1. However, she added that the Court’s Order declaring the listing of plastics as “both invalid and unlawful with retroactive effect” could lead the GIC to order that PMI be deleted from the current Schedule 1.
Canadian Environment Minister Steven Guilbeault announced during a November 20 press conference that the Canadian government “intend[s] to appeal” the ruling. As the PMI listing in Schedule 1 triggered the GIC’s authority to issue the SUP regulations, it seems likely that the regulations will fall as well if and when PMI is removed from the Schedule 1 listing.
More information on the Court's ruling can be found here.