OTTAWA — The federal government's ban on plastic straws and grocery bags is in question after the Federal Court ruled on Thursday that Ottawa had overstepped its bounds in designating all "plastic manufactured items" as toxic.
But one environmental law expert believes that in the long term, the ban of those specific items will stand up to legal scrutiny.
The Liberal cabinet designated plastic manufactured items as toxic in 2021, in order to allow the environment minister to regulate their use in Canada.
In December 2022, the first of those regulations took effect, barring the manufacture and import of six types of single-use plastics, including straws, grocery bags, cutlery, takeout containers, stir sticks and six-pack beverage rings.
The designation was applied to all plastic manufactured items.
In her ruling, Justice Angela Furlanetto noted that evidence shows "thousands" of different items are in that category, and they all have different uses and chemical makeups.
And she said that surely includes some items for which there is no reasonable expectation of environmental harm.
"The broad and all-encompassing nature of the category of (plastic manufactured items) poses a threat to the balance of federalism as it does not restrict regulation to only those (items) that truly have the potential to cause harm to the environment," Furlanetto wrote.
The Canadian Environmental Protection Act defines toxic substances as those that are or may be dangerous to human life or health, that "have or may have" a harmful impact on the environment or biological diversity or that constitute "a danger to the environment on which life depends."
Furlanetto said the government's own report identified several single-use plastic items, including garbage bags, contact lenses and disposable personal care items, that were either not prevalent or were not known to cause environmental harm.
"However, despite recognition that these items are not environmentally problematic, they are included in the category of (plastic manufactured items) that are toxic," Furlanetto said.
Because the cabinet order that has now been struck down is required to enact the regulations banning some plastic items, those regulations could also now be argued to be improper.
Behind the lawsuit challenging the toxic designation was the Responsible Plastic Use Coalition, which represents companies from the plastics industry that do business in Canada, along with three chemical companies that make plastics.
In a statement on Thursday, the coalition said it is reviewing the decision.
"We are currently analyzing court documents and will be considering our next steps upon completing that review," the coalition said in an unsigned email.
Stewart Elgie, a law professor and director of the Environment Institute at the University of Ottawa, said the government has options that should allow its ban to stay in place.
For one thing, it can appeal the court decision, and the government says it likely will.
Elgie said the federal government would also likely succeed in asking the court to suspend the judge's order quashing the toxic designation until that appeal is heard.
Also, Elgie pointed out, Furlanetto's decision does not suggest that the items the government wants to ban would not meet the test for being designated as toxic if they were given that designation separately.
"I'd say it looks like the federal government can regulate the things they're now regulating," Elgie said.
"They just have to do it in a more targeted way."
The decision does nothing to undermine the government's ability to regulate toxic substances in general, he added, including greenhouse gases. Elgie noted that in the decision, the judge uses that as an example of a toxic substance under the law.
Environment Minister Steven Guilbeault said in a statement that the government remains steadfast in its commitment to keeping plastics out of the environment, but he didn't say exactly what it will do.
"The government of Canada is carefully reviewing the Federal Court judgment and is strongly considering an appeal," he said.
The court decision was "disappointing," said Kim Elmslie, campaign director at Oceana Canada, a conservation advocacy group that intervened in the case in support of the government's position.
Elmslie noted that multiple countries are moving to bar the use of many single-use plastics.
"This is the way that the world is moving. (Now) that we've recognized that this is a huge crisis in our oceans, on land we need to deal with it. We need to address it," Elmslie said.
"It's just very frustrating that at this time, that this is an obstacle right now. It's a setback."
This report by The Canadian Press was first published Nov. 16, 2023.
Mia Rabson, The Canadian Press
Comments
On the face of it, my impression from this limited reportage is that the judge suffered from tunnel vision (not seeing the forest for the trees) or the case wasn’t well made. Maybe a combination of the two?
It seems to me that there would be two factors here:
1. Hazards (i.e. toxicity) resulting from the design of items, which happen to be made with plastic, be they contact lenses, forks, beverage rings, syringes, or whatever; e.g. being mistaken as food by other species and causing starvation and death, choking animals to death, or generally preventing continuing life in some (predictable or not) way;
2. Hazards of the plastic material itself regardless of the form it takes as a finished product, e.g. absorption of other (toxic) chemicals, leaching of chemicals, microplastics;
3. A combination of the two; e.g. a plastic syringe floats and, effectively, doesn’t break down whereas a chemically inert (I believe) glass syringe would sink and readily break down (to, essentially, sand) with, say, wave action against a rock.
Is the court saying that toxicity must be determined anew for every single product, made with plastic, that comes to market?
“The broad and all-encompassing nature of the category of (plastic manufactured items) poses a threat to the balance of federalism as it does not restrict regulation to only those (items) that truly have the potential to cause harm to the environment,"
Where’s the threat to federalism? Did a province (Ontario?) intervene? What products made from plastic have zero “potential to cause harm to the environment”? Presumably the judge had examples in mind.
???
Based on this limited information, this Canadian fully supports an appeal.
Looking at the bit about how Canada defines a "toxic" substance, I would have to agree. The article says
"The Canadian Environmental Protection Act defines toxic substances as those that are or may be dangerous to human life or health, that "have or may have" a harmful impact on the environment or biological diversity or that constitute "a danger to the environment on which life depends.""
So . . . "are or may be", "have or may have". That's pretty broad. If the definition were narrower I could see the judge's point about well, how can you know for sure about every single plastic thing? But according to the definition, they don't have to know for sure--and I think I could claim pretty confidently, given the hazards you pointed out, that pretty much anything plastic at least "may" be dangerous to human life or health and at least "may" have a harmful impact on the environment.
So if you take the examples the judge mentioned, say contact lenses--sure, they're pretty small so their impacts would be more incremental, and there probably haven't been studies and so forth, so it's unsurprising if they are "not known to cause environmental harm". But that's not the test! It's still the case that based on the fundamental properties of plastics, and the fact that they do get discarded into the environment, they "may" have a harmful impact (really, they probably do, it's just minor and hard to measure so nobody's proved it specifically). So I think the judge is making an error--the way the statute is written, it seems to me the government can perfectly well designate all plastic products as toxic.
I'm actually pleasantly surprised by the precautionary language in the legislation as paraphrased by the reporter and to which you refer. On the other hand, the quote from the judge ending in "...that truly have the potential to cause harm to the environment" suggests she does not have the same precautionary frame in her own mind, her undergraduate and post-graduate degrees in biochemistry notwithstanding (Google). Perhaps she is taking a very narrow definition of toxic, being, strictly, direct chemical-related impacts on living organisms. ??? I'm neither lawyer nor chemist.
Educational achievement, I've learned, is not always positively correlated to a particular worldview.
Shameful.
Myopic.
Maybe someone should offer the judge (who ruled on this) a blood test to determine how much plastic is running through her veins, lodged in her various vital organs eg. lungs, liver, heart, brain.
And then do the same for her grand kids.
Bet that would be just the wake up call that she and everyone who is still sleep walking on this file need.
Indeed. What is the purpose of proposing bans on individual types of plastic products when given enough time these products degrade into shards and microplastic debris that does wind up being internalized into the bodies of living creatures. This becomes a very unnatural foreign substance that cannot help but cause harm to any body it inhabits. We just do not have enough experience with this noxious substance to point to the specific damage it can cause. Human bodies are now repositories to all kinds of foreign, unnatural substances and we are only now, painfully discovering the probable harm they do as disrupters of hormones, and other essential systems and processes of living organisms. Without doubt this is an existential threat to life on earth. Better living through Chemistry is probably a lie and the sorcerers apprentice is a mad creature running rampant on our planet.