(Ottawa) The federal government’s ban on plastic straws and grocery bags is in question after the Federal Court ruled Thursday that Ottawa had overstepped its bounds by designating all “manufactured plastic items” as toxic.
However, an environmental law expert believes that in the long term, banning these specific items will withstand legal scrutiny.
The Liberal cabinet designated manufactured plastic items as toxic in 2021, to allow the Minister of the Environment to regulate their use in Canada.
In December 2022, the first of these regulations took effect, banning the manufacture and importation of six types of single-use plastics, including straws, grocery bags, utensils, take-out containers, sticks coffee cups and beverage rings in packs of six.
The designation was applied to all manufactured plastic items.
In her ruling, Judge Angela Furlanetto noted that evidence shows “thousands” of different items fall into this category, and they all have different uses and chemical compositions.
She added that this certainly includes some items for which there is no reasonable risk of environmental harm.
“The broad and all-encompassing nature of the (manufactured plastic items) category poses a threat to the balance of federalism because it does not limit regulation to only those (items) that actually have the potential to harm the environment.” , wrote Mme Furlanetto.
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” an adverse impact on the environment or biological diversity or that constitute “a danger to the environment on which life depends”.
Mme Furlanetto claimed the government report identified several single-use plastic items, including trash bags, contact lenses and disposable personal care items, that were not widespread or known to cause harm environmental.
“However, even if it is recognized that these items do not pose environmental problems, they are included in the category of (manufactured plastic items) toxic,” said Judge Furlanetto.
Since the cabinet decree, which has now been rescinded, is necessary to enact regulations banning certain plastic items, these regulations could also be considered inappropriate.
The Coalition for Responsible Plastic Use, which represents companies in the plastics industry operating in Canada, as well as three chemical companies that manufacture plastics, is behind the lawsuit seeking to challenge the toxic designation .
In a statement released on Thursday, the Coalition said it was reviewing the decision.
“We are currently analyzing the court documents and will consider next steps once this review is completed,” the Coalition said by email.
The federal government is considering an appeal
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 continue.
For one thing, he can appeal the court’s decision, and the government says he probably will.
Elgie said the federal government would also likely succeed in asking the court to stay the judge’s order rescinding the toxic designation until that appeal is heard.
Mr. Elgie also stressed that Judge Furlanetto’s decision does not suggest that the items the government wishes to ban would not meet the criteria for toxic designation if they received this designation separately.
“I would say it appears the federal government can regulate the things it currently regulates,” Elgie said. They just need to do it in a more focused way. »
The decision in no way undermines the government’s ability to regulate toxic substances in general, he said, including greenhouse gases. Mr. Elgie noted that in the decision, the judge uses this as an example of a toxic substance within the meaning of 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 did not specify what exactly it would do.
“The Government of Canada is carefully reviewing the Federal Court’s judgment and is strongly considering appealing,” Mr. Guilbeault said in a statement published on X.
The court’s decision was “disappointing,” said Kim Elmslie, campaign director at Oceana Canada, an environmental advocacy group that intervened in the case to support the government’s position.
Mme Elmslie noted that several countries are moving to ban the use of many single-use plastics.
“This is how the world evolves. (Now) that we have recognized that this is a huge crisis in our oceans, on land we must address it, argued Mr.me Elmslie. It’s very frustrating that at the moment this is an obstacle. It’s a setback. »