Judge rules Canada's decision to classify some plastics as "toxic" was unconstitutional
The Federal Court has sided with several large plastic companies after they launched a lawsuit against the Canadian government’s decision to list certain plastics — such as straws — as toxic under the Canadian Environmental Protection Act (CEPA).
The suit was launched by the Responsible Plastic Use Coalition, which includes Dow Chemical Canada, Nova Chemicals Corporation, and Imperial Oil — three companies that are applicants in the case.
The coalition argued that the Canadian government’s order to label “plastic manufactured items” as toxic under CEPA was “not based on science” but rather “politically driven.”
It added that the order was unconstitutional, outside the federal Cabinet’s enabling authority, and was based on “conjecture” instead of evidence.
On Thursday, Justice Angela Furlanetto determined that the order was “unreasonable and unconstitutional” because the plastic-manufactured items (PMI) were too “broad” to all be classified as toxic.
Furlanetto ruled the federal government’s order to be retroactively quashed and declared it both “invalid and unlawful” as of April 23, 2021.
In a statement, Canadian environmental advocacy organization Environment Defence said it was “dismayed” to see the federal court side with large plastic companies “despite the industry’s blatant disregard for plastic’s catastrophic impacts on the environment.”
The group noted that the Canadian government needs to appeal the court decision, as it impacts its policy agenda of banning single-use plastics. That’s because the government can only regulate materials and substances for environmental protection if they are listed as toxic under CEPA.
Canada began implementing its single-use plastics ban in December 2022, with the phase-out of plastic checkout bags, cutlery, stir sticks, and straws (with some medical and accessibility exceptions).
The sale of flexible straws packaged with beverage containers (i.e., juice boxes) is set to be prohibited in June 2024. Then, by the end of 2025, Canada aims to ban all six categories of single-use plastics for export.