Is Canada’s plastics ban gone? Not quite

A court decision that quashed the legal foundations of Canada's plastic regulations might not spell the end of the government's efforts to tackle the plastic pollution problem, observers say.

On Thursday, a Federal Court judge sided with the petrochemical industry in a ruling against the federal government's 2021 decision to list plastic as toxic under federal pollution legislation.

A product can be considered legally "toxic" if it harms or could harm the environment or human health. This designation allows the federal government to develop regulations like Canada's ban on straws, plastic bags and four other single-use plastic items.

The ruling found the federal government overstepped its authority to regulate substances by listing all plastic items as toxic, instead of specific items shown to cause environmental harm. Typically, a substance is listed as legally toxic if a government risk assessment shows it is both harmful and likely to enter the environment.

In a departure from this method, the government justified its decision to list plastics as toxic using a "science assessment" that reviewed roughly 600 scientific papers about plastic pollution and concluded the material poses a threat, but it did not assess the risk that all plastics would end up in the environment. That evaluation came later and is used to justify the ban on some single-use items.

The judge determined the federal government's decision to use this unconventional method in justifying the toxic listing wasn't strong enough but did not foreclose all efforts to control the plastic pollution problem.

"The issue is certainly more nuanced than I think most people were led to believe" when the decision was released, explained University of Calgary law professor Martin Olszynski. "The court isn't saying you can't ban plastic bags — in fact, the court says very clearly there was evidence of harm for these types of things."

The decision "does nothing" for people who want to bring back plastic straws or plastic grocery store bags, he said. It marks a win, however, for Canada's roughly $35-billion plastics industry and the fossil fuel producers who supply its raw materials.

The plastics industry is treating the toxics designation as a "sword of Damocles" hanging over them because it gives the federal government the authority to start regulating any plastic with minimal notice or consultation.

"They've not been regulated before," Olszynski explained. "That's the real issue here."

Despite the massive scale of plastic pollution, the handful of companies producing the material have largely avoided measures that could force them to deal with the pollution their products create.

There are few to no limits on plastic anywhere in the world, with production more than doubling in the last 20 years to reach 460 million tonnes in 2019. Less than 10 per cent of this plastic is recycled, with the remainder ending up in landfills, incinerated or polluting the environment.

Beyond the threat plastic pollution poses to wildlife, such as marine animals killed after eating or being strangled by plastic items, the material contains highly toxic additive chemicals that can leach into the environment. The industry is also a major contributor to the climate crisis, with fossil fuel companies anticipating demand for plastics will keep them in business as the world moves to renewables.

Canada has taken a leading role in negotiations to create a global treaty to tackle the problem, with representatives in Nairobi last week trying to hash out a deal. That makes the government's efforts at home all the more important, said Ecojustice lawyer Lindsay Beck. The environmental group intervened in the case on behalf of Environmental Defence and Oceana Canada.

The federal government was acting "well within" its authority when it decided to list plastics as toxic. Plastic is "one of the most persistent pollutants on Earth," making it clearly toxic under Canada's environmental laws, she said. Yet, Thursday's decision "makes it more difficult for the federal government to respond to that crisis," Beck said.

The government could appeal the decision or go back to the drawing board and draft more comprehensive arguments to list plastic as toxic, said Olszynski.

Beck added that ministers could also try to pass legislation dealing directly with plastic pollution, but that approach risks taking too much time and could open the door to future successful lawsuits by industry against environmental rules. She urged the government to appeal the decision.

In a statement, Kaitlin Power, spokesperson for Environment and Climate Change Canada, said the department is "carefully reviewing the Federal Court judgment and [is] strongly considering an appeal… We will have more to say soon."