Feds vow to appeal court ruling that rejects listing plastics as toxic

Environmental ruling stock image
In the January ruling, the Federal Court of Appeal found that because several provisions in the single-use regulations have already come into force, a stay was necessary until the appeal can be heard. Photo Credit: Pcess609, stock.adobe.com

The Canadian government says it intends to appeal a new federal court ruling that suggests plastic manufactured items are not a “substance” or “class of substances” that could fall under the List of Toxic Substances in Schedule 1 of the Canadian Environmental Protection Act (CEPA).

The intention to appeal the ruling in the case, brought by the Responsible Plastic Use Coalition and several chemical companies that manufacture plastics, was announced this week in a joint statement by Canada’s Environment and Justice ministers.

The federal court ruling from Nov. 16 stated that the Liberal government’s move to list all plastic items as toxic under CEPA was “unreasonable and unconstitutional,” and represented a move outside of its authority.

In May of 2021, the federal government added plastic manufactured items to Schedule 1 of CEPA as a toxic substance as part of a larger ban on single-use plastics. An industry group, the Responsible Plastic Use Coalition (RPUC), filed its application that month for judicial review, seeking an order to quash the classification. The same group launched a second lawsuit last year, challenging Ottawa’s ban on several common single-use plastic items.

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“Our government intends to appeal the federal court’s decision and we are exploring all options to continue leading the fight against plastic pollution,” noted Environment and Justice Ministers Steven Guilbeault and Arif Virani’s joint statement.

In its ruling, the court stated that CEPA can only apply to an individual item as a substance, whereas multiple items can only be added if they are a class of substances and share similar properties.

The applicants argued that, “it is not possible to conduct a single risk assessment for thousands of disparate products ranging from bottle caps to railway cars.”

Intervenors in the case on behalf of the applicants were the attorney generals for both Alberta and Saskatchewan, as well as the American Chemistry Council, among others.

In a statement in response to the court ruling, RPUC said: “In the interest of Canadians who rely on plastic products that are essential to everyday life, we believe that the federal government and industry can work collaboratively to reduce plastic waste and we look forward to developing solutions together.”

Supporting the federal government’s position as intervenor was advocacy group Environmental Defence, which in a reaction to the ruling suggests the toxic classification for plastic was “both warranted and necessary.” In particular, the group highlights the risks to animal health posed by plastic pollution.

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