Lawyers for the government argued Tuesday that a lower court erred in ruling that the federal government’s decision to designate plastic as a hazardous substance was unreasonable and unconstitutional.
Federal government legal adviser Joseph Cheng led the government’s appeal at the Federal Court of Appeal in Ottawa.
In November, Federal Court Justice Angela Furlanetto ruled that Ottawa’s decision to classify plastic manufactured articles (PMI) as toxic was too broad. Furlanetto concluded that the federal government had not proven that all plastics pose harm and was infringing on provincial jurisdiction.
“PMI is too broad to be included on the hazardous substances list,” Judge Furlanetto wrote in his November ruling. “This broadness makes the order unreasonable and unconstitutional.”
The original lawsuit was brought by industry giants Dow Chemical, Imperial Oil and Nova Chemicals, and the governments of Alberta and Saskatchewan intervened in the case to support them.
In 2021, the Liberal government listed all plastic products as toxic under the Canada Environmental Protection Act, a precursor to the federal environment minister moving forward with a nationwide ban on single-use plastic products.
The list could have prompted Ottawa to move forward with a ban on plastic products other than straws, shopping bags and stirrers.
The restrictions were part of Environment Canada’s plan to combat pollution and reduce plastic waste. The Liberal government immediately appealed the November ruling.
Federal lawyers said the government should list all plastics as toxic because plastics often become unrecognizable when they break down into small pieces in the environment.
Chen also told the judges that it was “irrelevant” what shape the plastic products were originally in. What matters, he said, is preventing harm.
“Let’s be clear: it doesn’t matter to a bird whether the plastic blocking its digestive tract is a plastic fork or a knife, and it doesn’t matter to a suffocating coral reef whether it’s a plastic net or a plastic bag that’s suffocating it,” Chen said.
“Either way, we may never know the answer to that question. Virtually any product made from plastic has the potential to cause harm because of its composition.”
Judge Sylvie Roussel questioned Chen about the government’s decision to list all plastics as toxic, when it had previously listed individual substances such as carbon dioxide and lead as toxic.
Chen countered that the 150 substances designated as toxic under the country’s environmental law are broad categories that contain thousands of substances. He cited volatile organic compounds (VOCs), a large group of chemicals that are commonly present in indoor and outdoor air and affect air quality.
“Like other substances on the list, they’re not always harmful,” Chen said. “They are harmful in certain applications and in certain situations.”
Alberta asks federal government to drop appeal
Lawyers representing the plastics manufacturers urged the court to uphold the lower court’s decision.
“The essence of this judicial review application is that no matter how ambitious, progressive and well-intentioned the government’s environmental policy may be, it must adhere to the statutory constraints set by Parliament and must follow evidence-based decision-making,” lawyer Ewa Krajewska said.
Krajewska said the federal government hasn’t presented enough science to show that all products made with plastic end up in the environment and causing harm.
The Alberta provincial government, which is also involved in the case, said in a media statement that it was “premature” for the Canadian government to withdraw its appeal.
“We are disappointed that the federal government has chosen to appeal this ruling, continuing to overstep its authority and eroding investor confidence in the petrochemical sector,” Ryan Fournier, a spokesman for Alberta’s Environment Minister, said in a media statement.
BC government backs Ottawa
The British Columbia government has intervened in the case, supporting Ottawa’s efforts to regulate plastic waste.
Trevor Bunt, legal adviser to the British Columbia Attorney General, appeared in Supreme Court on Tuesday to uphold the government’s decision to designate plastic products as hazardous.
“British Columbia has taken the view that this order is constitutional. It is within federal jurisdiction and I generally agree with the submissions made on behalf of Canada,” Bunt said.
“Regardless of the outcome of the federal appeal, British Columbia will continue to regulate plastics and protect the environment,” Matthew Borghese, a spokesman for B.C.’s Ministry of Environment and Climate Change Strategy, said in a statement.
One environmental group and litigation intervener said B.C.’s role in supporting the appeal helps bolster the federal government’s argument that its claims are on solid constitutional grounds.
“It’s clear now that plastic is a bigger problem than it’s ever been,” said Anthony Merante, senior plastics activist at Oceana Canada.
“(Plastics) are in the air we breathe, in rain clouds, in the food we eat and can even be found in our blood. The problem may be too big for any one government to tackle alone, but collaborative regulation could help.”
“And that’s exactly what B.C. is arguing in court.”
