Appeal court rules in favour of Ottawa’s toxic plastic listing

In a victory for the Liberal government, the Federal Court of Appeal has upheld its decision to list plastics as toxic, enabling Ottawa to ban single-use plastic items. 

The decision deals a blow to Canada’s plastics industry, which had challenged the federal government’s regulations aimed at stopping plastic pollution. 

The unanimous decision said a judge had erred when they ruled that Ottawa’s decision to list plastic items as toxic was “unreasonable and unconstitutional.”

The three appeal court justices said that ruling was “predicated on an incorrect premise” and it did not infringe on provincial or territorial jurisdiction.

“There is no constitutional issue here,” the decision stated. 

The court also found the government’s decision was reasonable because plastics have the potential to be toxic to humans and the wider environment.

Federal Court of Appeal Justice Donald Rennie authored the decision backed by the two other judges on the bench. It read as an overwhelming rejection of the 2023 Federal Court decision which on one point Rennie described as “a classic example of a court engaging in a ‘line-by-line treasure hunt for error.'”

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 on plastic checkout bags, cutlery, styrofoam containers, stir sticks and plastic straws. 

In 2023, Federal Court Justice Angela Furlanetto struck down that ban. In her ruling Furlanetto said that Ottawa’s decision to classify plastic-manufactured items (PMI) as toxic was too sweeping.

The judge concluded that the federal government did not demonstrate that all plastics cause harm to humans and the environment and that it was trespassing on provincial jurisdiction. 

The Liberal government, under then prime minister Justin Trudeau and former environment minister Steven Guilbeault, quickly appealed. It received a stay from the Federal Court of Appeal, allowing the ban to continue.

In a statement, Environment and Climate Change Minister Julie Dabrusin said Friday’s ruling means Canada’s single-use plastics regulations remain in force.

She said the decision supports her department’s report that found plastic pollution “poses a threat of harm to Canada’s environment” and gives the government “important tools to take informed action.”

“Canadians are concerned about the health and environmental impacts of plastics, and they expect governments to take action to address plastic pollution,” she said.

The case was brought forward by major industrial players, including Dow Chemical, Imperial Oil and Nova Chemicals, who brought forward the case.

The legal battle is likely not over since plastic manufacturers could launch a final appeal to the Supreme Court of Canada.

An industry group that represents plastics producers, the Responsible Plastic Use Coalition, said in a statement it is “reviewing the decision and considering legal options.”

The Saskatchewan and Alberta governments also intervened in the case.

“We are disappointed with the Federal Court of Appeal’s decision,” said Ryan Fournier, the press secretary to the Alberta minister of the environment and protected areas. “We are exploring all options to defend our jurisdiction and our jobs, including appealing this to the Supreme Court of Canada.”

Legal battles set Canada back: Guilbeault

In an interview with CBC News on Friday, Guilbeault, who has been a staunch supporter of tackling plastic pollution through federal regulation, said the unanimous decision was “such a relief,” but that years of court battles have stalled progress.

“We had to pull back a little bit and wait for the Court of Appeal to issue a ruling,” he said.

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David Wright, a law professor at the University of Calgary, said the ruling is “very significant” in light of broader worries that governments across the country are weakening laws that protect the environment to fast-track major projects.

“This decision will stand as an example of environmental law holding strong, if you will, and the judiciary as an independent branch of government sticking to the law, sticking to the science and really deeply understanding the statutory scheme at issue rather than getting distracted by the shifting political winds,” Wright said. 

NDP calls on Liberals to do more

Celebrating the victory were several environmental groups and legal advocates who have spent years in court fighting.

“We are pleased to see the court embrace a robust and purposive interpretation of the statute that allows Canada to address emerging environmental harms and act in a precautionary manner,” said Ecojustice lawyer Lindsay Beck, who represented environmental groups in court.

“Today’s decision is a major win for ocean protection and for Canadians,” said Anthony Merante, the senior plastics campaigner with Oceana Canada. “The court has affirmed that science-based action to reduce plastic pollution is both legal and necessary.”

But as the lengthy ruling sinks in, questions now turn to how the government will use the federal powers the appeal court has affirmed to further fight plastic waste.  

NDP MP Gord Johns, who has pushed the government to fight plastic pollution, called on Ottawa to follow through with “with strong, enforceable regulations instead of allowing deep-pocketed corporations to delay action.”

But Dabrusin stopped short of saying the ruling will push the government to take further steps.

“Today I’m really taking that moment to say, great, we have that affirmation that we can take that action,” Dabrusin said.

But the Canadian Produce Marketing Association, an organization that represents fresh fruit and vegetable producers, is worried about further steps the government might take.

“Given the current North American and global trade environment, it is critical that today’s decision does not contribute to trade disruptions or result in negative impacts on food availability, affordability and the reliability of fresh produce supply chains,” said association president Ron Lemaire in a statement.

Ellis Ross, the Conservative environment critic, said despite the ruling his party will still oppose plastic bans.

“Today’s court decision will continue to force the Liberals’ unscientific plastics ban on Canadians, making life more expensive for everyone,” Ross said in a statement.