The Federal Court of Canada has overturned the federal government’s order to list plastic-manufactured items (PMIs) under Schedule 1 of the Canadian Environmental Protection Act 1999 (CEPA). This ruling may potentially impact the government’s ban on single-use plastics, made possible by the order.
The Responsible Plastic Use Coalition and several plastics manufacturing companies instigated the case against the Minister of Environment and Climate Change, the Minister of Health, and the Attorney General of Canada. The plaintiffs argued that the government lacked the authority to add PMIs to Schedule 1, a register stipulating specific measures towards pollution prevention applicable to substances listed, concerning their release and regulation.
The court concurrently considered how Bill S-5, which amended CEPA, would influence the legal challenge. The bill entails changes that include the replacement of Schedule 1 with PMIs incorporated. The revised schedule introduces a two-tier system, where Part 1 delineates toxic substances posing the highest risk, and Part 2 lists other toxic substances. PMIs are included in Part 2.
Initially, the court judged the cabinet order as unreasonable. The court held that not all PMIs are inherently toxic or have the potential to become plastic pollution. Therefore, the government’s inclusion of certain non-toxic PMIs, acknowledging this ‘broad extrapolation,’ demonstrated an overreach of its authority.
The court went further to ascertain the order as unconstitutional, having overstepped the federal government’s power to invoke criminal law. The court’s rationale centred on the argument that since PMIs involve “items with no reasonable apprehension of environmental harm”, the bill threatened the balance of federal and provincial powers as it failed to substantiate the necessary “harm to the environment” prerequisite to employ criminal law.
Despite these rulings, the court refrained from ruling on Bill S-5’s insertion of PMIs into Schedule 1 of CEPA’s constitutionality, deciding to consider further arguments before rendering a decision.
Canada’s Minister of Environment and Climate Change, Steven Guilbeault, in a statement on Friday, revealed that the government is thoroughly scrutinising the Federal Court’s decision and contemplating an appeal. Committed to mitigating plastic waste and pollution, he assured to work steadfastly with provinces and territories, promising to disclose upcoming steps soon.
Danielle Smith, Alberta’s Premier, hailed the court’s ruling and implored the federal government not to lodge an appeal. Alberta, housing Canada’s largest petrochemical industry, was a participant in the lawsuit, alleging that the PMI listing was “an unconstitutional intrusion into provincial jurisdiction” posing a threat to Alberta’s economy. Subsequent to the court’s recent judgment, Premier Smith urged the federal government to promptly exclude PMIs from the list to stave off further legal actions from Alberta and other provinces.