Plastic coalition awaits ruling in court fight against federal ‘toxic’ designation

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The plastic producers’ coalition of plaintiffs want the federal government to rescind its addition of plastic manufactured items to Schedule 1 of the Canadian Environmental Protection Act (1999), or CEPA, as a toxic substance. Image credit: gearstd, stock.adobe.com

Lawyers for a corporate coalition on behalf of major plastics producers finished their arguments in court this month against the federal government’s designation of plastics as “toxic” under the Canadian Environmental Protection Act.

The decision is now in the hands of a federal court judge in Toronto.

The lawsuit was brought by an industry coalition that includes Canada’s three biggest plastic producers: NOVA Chemicals, Dow, and Imperial Oil. The group call themselves the Responsible Plastic Use Coalition (RPUC).

“The problem Canada is facing is not plastic – it is plastic waste,” RPUC states on its website. “And we believe there are far more impactful policy solutions to divert waste from our natural environment, including a comprehensive circular economy system in Canada.”

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The coalition plaintiffs want the federal government to rescind its addition of plastic manufactured items to Schedule 1 of the Canadian Environmental Protection Act (1999), or CEPA, as a toxic substance, which occurred on May 12, 2021.

RPUC firstly argues that waste management falls within the purview of the province, and that the federal order intrudes into provincial jurisdiction. Ecojustice, acting on behalf of Oceana Canada and Environmental Defence, has responded by stating that the listing order only targets plastic once it’s pollution – outside the waste stream.

RPUC also suggests that manufactured plastic items are not a single item (as only single items can be added to Schedule 1) and are too broad of a category to meet the interpretation of “substance” or “class of substances” under section 3 of the CEPA.

Additionally, the plaintiffs suggest that the government has failed to show how plastic items meet the CEPA concept of toxicity or the required level of technical demonstration. In its court application, RPUC states that the proposed designation needs more oversight “in order to have a proper and meaningful review conducted by scientists and experts to determine whether there is science to support this decision, and if so, whether that science is sufficient to determine that ‘plastic manufactured items’ are ‘toxic’.”

Environmental groups in the federal court case suggest that the “toxic” designation arose from growing concerns about how much plastic finds its way into the environment and wildlife. Groups such as Ecojustice are in court to support the federal government’s ability to “combat the growing plastics crisis and introduce checks and balances to hold industry accountable,” states Ecojustice in a blog post earlier this month.

RPUC calls the addition of plastic manufactured items to Schedule 1 a “slippery slope” and asks what may be added next without rigorous scientific assessment. It also calls the move to designate plastic as toxic to be “politically driven.”

The “toxic” designation allowed federal legislators to move forward with additional legislation limiting plastic use. Ecojustice, a group of environmental lawyers, suggests the new federal single-use plastics ban was only possible because of the CEPA listing.

“Without the designation of plastics as ‘toxic’ under the Act, the government would not have the authority to make regulations such as this to curb plastic pollution,” Ecojustice wrote in a statement.

RPUC launched a second lawsuit in 2022, challenging the federal ban on several single-use plastic items such as straws, six-pack drink holders, cutlery, and takeout containers, which partly came into effect last December. The second lawsuit has yet to be heard in court.

Stakeholder status in the case that wrapped earlier this month was granted to the American Chemistry Council, American Fuel & Petrochemical Manufacturers, Plastic Industry Association, the Government of Alberta, the Government of Saskatchewan, the Environmental Defence Canada Inc. Association, Ocean Canada and Animal Justice.

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