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November 17, 2023 08:36 AM

Canada's listing of plastics as toxic ruled ‘unreasonable and unconstitutional' by court

Steve Toloken
Assistant Managing Editor
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    Nova Joffree_i.jpg
    Nova Chemicals
    The government of Alberta, Canada, joined industry and trade groups in opposing a federal move listing plastic products as toxic. The province is home to major chemical production sites including Nova Chemicals' plant in Joffree.

    A Canadian federal court ruled Nov. 16 that the government was "unreasonable and unconstitutional" in declaring plastic products toxic under environmental law.

    It wasn't immediately clear if the judicial decision would slow other parts of the plastics agenda of Environment and Climate Change Minister Steven Guilbeault, including a ban on several single-use plastic products.

    But the 2021 toxicity listing had underpinned some of those decisions.

    An industry coalition including resin makers Dow Chemical and Nova Chemicals, packaging company Berry Global, Imperial Oil and others had challenged the listing in court.

    Federal Court Justice Angela Furlanetto in Toronto ruled the government exceeded its authority with the broad listing of plastic products as toxic.

    "There is no reasonable apprehension that all listed [plastic manufactured items] are harmful," she wrote in her ruling.

    The government, however, is "strongly considering an appeal," Guilbeault wrote in a statement on the social media platform X, formerly Twitter.

    File photo
    Guilbeault

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

    "We strongly believe in taking action to tackle this crisis and keep millions of garbage bags of trash off our beaches, out of our waters and away from nature," Guilbeault said. "That's what we will keep fighting for."

    He added the federal government would continue to work with provinces, territories, civil society and industry to curb plastic waste and pollution: "We will have more to say on next steps soon."

    The industry group that filed the lawsuit, the Responsible Plastics Use Coalition, said in a statement that it supported the court's ruling and wanted to work with the federal government.

    "In the interest of Canadians who rely on plastic products that are essential to everyday life, we believe that federal government and industry can work collaboratively to reduce plastic waste and we look forward to developing solutions together," the RPUC said.

    Environmental Defence Canada, which also filed a brief in the case, urged the government to quickly appeal and said it was "dismayed" the court sided with the plastics industry.

    "Environmental Defence will not be backing down from this fight, and we urge the federal government to stand firm," said Associate Director Ashley Wallis. "Canada must quickly appeal this court decision and move forward with its planned regulatory and policy agenda, including bans on harmful single-use plastics.

    "The evidence is clear: decades of research demonstrate plastic products are toxic to the environment, and there is increasing concern over its harmful impact on human health too," she said.

    In her statement, she pointed to the ongoing negotiations over a plastics treaty, including meetings Nov. 13 to Nov. 19 at United Nations' offices in Kenya, as evidence of public support for coordinated action to reduce plastic pollution.

    Furlanetto, in her 89-page ruling, discussed the government actions and scientific research to date, and noted that plastic waste and pollution "has been the subject of growing environmental concern and government focus since at least 2016."

    But she said the government's decision to list plastic manufactured items, or PMI, as toxic under the Canadian Environmental Protection Act went beyond its powers.

    "PMI was too broad to be listed on the List of Toxic Substances in Schedule 1 and this breadth renders the Order both unreasonable and unconstitutional," she wrote. "The [government] acted outside of their authority and the scheme of the relevant provisions of CEPA in listing the broad category of PMI."

    The provincial government of Alberta, which joined the lawsuit opposing the federal government actions, said it has argued to the court that Guilbeault's decision was an intrusion into provincial powers and a threat to its economy.

    "Alberta is proudly home to Canada's largest petrochemical sector, a sector with more than $18 billion in recently announced projects that were needlessly put in jeopardy by a virtue-signaling federal government with no respect for the division of powers outlined in the Canadian Constitution," said Alberta Premier Danielle Smith and Rebecca Schulz, minister of environment and protected areas, in a joint statement.

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