Federal Court judge rules that Ottawa’s labelling of all plastics as toxic is unconstitutional

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A judge has ruled a federal decision labelling plastics as toxic to be unreasonable and unconstitutional, throwing Ottawa’s scheduled ban on the sale of single-use plastics such as checkout bags into doubt.

The ruling Thursday by Federal Court Justice Angela Furlanetto was the second major court decision in five weeks that determined federal environmental policy to be unconstitutional. Last month, the Supreme Court ruled that the 2019 Impact Assessment Act interfered with provincial jurisdiction, in giving Ottawa wide powers to regulate natural-resource projects.

The new ruling involves a 2021 cabinet decision to list plastic manufactured items as toxic, which enabled a ban on six single-use plastics, including cutlery and some straws, that are considered difficult to recycle. (The ban on manufacture and import of those items started last December and will be expanded to the sale of five of those items on Dec. 20.) The plastics industry, including Dow Chemical, Imperial Oil and Nova Chemicals, challenged the listing of all plastics as toxic, and Alberta and Saskatchewan intervened to argue that it was a federal overreach into provincial jurisdiction.

Under a 1997 Supreme Court ruling, Ottawa has the authority to regulate substances if they are deemed a danger to health and the environment. But Justice Furlanetto found that not all plastics constitute such a danger. The listing of plastic manufactured items (PMI) as a toxic substance therefore went beyond Ottawa’s power and was also unreasonable.

“The broad and all-encompassing nature of the category of PMI poses a threat to the balance of federalism as it does not restrict regulation to only those PMI that truly have the potential to cause harm to the environment,” Justice Furlanetto wrote.

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Stewart Elgie, a law professor and director of the Institute of the Environment at the University of Ottawa, said the court decision leaves it open to Ottawa to regulate all the plastic substances it is already regulating. “But they must do it through a regulation that specifically addresses those particular plastic products. They can’t list ALL types of plastic as toxic,” he said in an e-mail.

But for now, he said, Ottawa could keep regulating plastics by seeking a stay of the court’s ruling, while filing an appeal, or by issuing a temporary order to regulate those plastics, as allowed for under the Canadian Environmental Protection Act.

Justice Furlanetto’s ruling puts the ball squarely before Ottawa. For technical reasons, the listing of plastics as toxic still stands. The cabinet order being challenged in court was rescinded after the legal proceedings began, and a law passed by Parliament replaced it. (The law contains the same list of toxic substances.) The judge said the law was not before her and she therefore declined to rule it unconstitutional. But she left the door open to further legal arguments.

Environment and Climate Change Minister Steven Guilbeault said in a statement that the government is “strongly considering” an appeal.

“Canadians have been loud and clear that they want action to keep plastic out of our environment. The science is clear: plastic pollution is everywhere in our environment, harming wildlife and their habitats. There is also a growing body of evidence showing impacts on human health.”

Alberta applauded the ruling and urged Ottawa not to appeal.

Premier Danielle Smith and Environment and Protected Areas Minister Rebecca Schulz said the court reminded Ottawa that the provinces are “not subordinate to the federal government.” They added: “The federal government’s decision to unilaterally label perfectly safe plastic consumer products as ‘toxic’ has had wide-ranging consequences for Alberta’s economic interests and has put thousands of jobs and billions of investments at risk.”

The Saskatchewan government said in a statement: “We are pleased that the Federal Court considered the merits of this case and found in favour of Saskatchewan on this issue.”

The Responsible Plastic Use Coalition, an industry group that brought the legal challenge, said in a statement: “We believe that federal government and industry can work collaboratively to reduce plastic waste.”

Manjit Singh, a lawyer representing Animal Justice, an advocacy group that intervened in the case, said he is disappointed by the ruling. Plastic pollution is “pushing some species to the brink of extinction and at an individual level, it is causing unfathomable, unbearable harm – plastic rings suffocating animals to death.”