It’s been a tough fall for the federal Liberals in the court of public opinion, as the party spins lower in the polls. It’s also been a bad couple months in court, where the Liberals have now lost back-to-back cases on prominent environmental policies.
The first blow came in October, when the Supreme Court ruled that the Impact Assessment Act was unconstitutional. The Liberals put the law in place in 2019 to broaden federal environmental reviews of proposed industrial projects. The top court found the law was too broad.
The second blow landed last Thursday, when a Federal Court judge ruled that “plastic manufactured items” was too broad for the list of toxic substances under the Canadian Environmental Protection Act. The 2021 decision to include them as one was deemed unreasonable and unconstitutional. Plastic bags and straws may be bad for the environment – but not all plastics are bad for the environment.
The general legal lesson, from both cases and for this and all future federal governments, is clear. Ottawa is well within its rights to pursue ambitious environmental policies but such steps must be measured and, most of all, avoid the temptation of overreach.
It’s not breaking news to observe the Liberals’ tendency to overly grand gestures. What might work at a political rally or in a press release isn’t the same as what will stand up in court. Ottawa has to respect its role, one that upholds co-operative federalism, especially in matters such as climate and pollution, where there is a shared responsibility of oversight alongside the provinces.
The plastics case revolves around the Liberals’ promise to reduce the amount of waste in Canada from the ubiquity of plastics. One step was codifying the problem under the Environmental Protection Act. The list of toxic substances is long and specific. Among the 163 items, there is the obvious, such as asbestos and lead. Greenhouse gases, starting with carbon dioxide, methane and nitrous oxide, were individually included on the list in 2005.
The list isn’t an abstract thing. It forms the basis for regulations. In 2010, the Stephen Harper government enacted renewable fuel regulations. They were challenged in court by Syncrude, an oil sands company, but Ottawa won at the Federal Court in 2014 and again at the Federal Court of Appeal in 2016. Both ruled that Ottawa’s regulations were rooted in the reduction of greenhouse gases emissions – each of them a toxic substance – and fit inside federal constitutional bounds.
The plastics case was brought to court by Dow Chemical, Imperial Oil and Nova Chemicals, three foreign-controlled companies with long histories in Canada. Alberta and Saskatchewan intervened to argue against federal overreach. But Ottawa’s loss is only a partial one. The ruling does not mean Ottawa has no say at all on plastics. It just can’t declare plastics in general to be toxic.
The case highlights the Liberals’ hubris. They used unusual tactics, basing their broad listing of plastics as toxic on a general scientific assessment. They also rejected all the many requests to do a further review and instead plowed ahead.
The fact that some plastics are problematic is not contested in the ruling, bags and straws among them. Ottawa last year prohibited several such single-use plastics. (The plastics companies went to court against those rules in a separate case.)
The Liberals on Monday said they would appeal the Federal Court decision and look at other options. An obvious fix is a specific listing of plastics that should properly be included as toxic, those known to cause environmental harm.
Then there’s the bigger lesson for major pending green policies. The proposed federal clean electricity regulations, which aim to reduce emissions from power generation, are sound but need to be more flexible. Ottawa also must ensure they stand up to legal challenges. Resist the temptation to be too broad. Ottawa has solid footing on legal precedent but this space suggested the Liberals consider a reference case at the Supreme Court to shorten another extended legal saga.
The most important lesson is one of humility. The Liberals’ environmental ambitions are valuable but their instincts to always try to do too much has led to unnecessary losses. The plastics case is a perfect example. A more modest focus on specific problems – the vast waste of plastic straws and bags – would have avoided another legal defeat.