Was The Federal Government Right To Designate "Plastic Manufactured Items" As Toxic?

• Law Firm: Fasken
• Subject Matter: Environment, International Law, Energy and Natural Resources, Environmental Law, Oil, Gas & Electricity, Chemicals, International Trade & Investment, Waste Management
• Author: Marie-Pierre Boudreau and Gabrielle Gagnon
• Published date: 10 April 2023

The case of Responsible Plastic Use Coalition and others v. Minister of the Environment¹ was heard in early March Federal Court in Toronto.

Four plaintiffs, the Responsible Plastic Use Coalition, Dow Chemical Canada ULC, Imperial Oil and Nova Chemicals Corporation, are seeking to have the order dated May 12, 2021, to add plastic manufactured items to Schedule 1 of the Canadian Environmental Protection Act (1999) as a toxic substance, rescinded (the "Order"). For its part, the Attorney General of Canada (the "AGC") has attempted to demonstrate its validity.

Stakeholder status 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.

The Arguments of the Applicants

In support of their claims, the plaintiffs rely primarily on two arguments, one being administrative and the other constitutional.

Firstly, the Order would be invalid for being in violation of its enabling legislation, the Canadian Environmental Protection Act (1999) ("CEPA"), and for being unreasonable.

According to the applicants, plastic manufactured items do not meet the interpretation of "substance" or "class of substances" under section 3 of the CEPA. Plastic manufactured items are, in their view, too broad a group of materials to fall under these definitions. Moreover, the federal government did not demonstrate the toxic nature of plastic manufactured items, relying solely on a literary review and a study by an accounting firm. The plaintiffs consider that the information contained in these documents does not meet the CEPA concept of toxicity or the required level of technical demonstration. The federal government's evidence of toxicity would therefore be more a matter of conjuncture.

The plaintiffs also argue that the Order is unreasonable due to its irrational and illogical nature. The Order specifically equates all plastic products as toxic substances, which puts hundreds, if not thousands, of everyday products on the list of toxic substances, including numerous harmless products. The plaintiffs also consider it illogical to subject the finished product, i.e. the plastic items, but not the raw materials used to produce these items.

Secondly, the Order would exceed the criminal jurisdiction of the federal government. The plaintiffs first claim that the principles of R v. Hydro-Québec²...