'Unreasonable and unconstitutional': Federal Court rules against Ottawa listing plastic items as toxic

Alberta’s government hailed the ruling against a policy it described as threatening ‘thousands of jobs.’ Ottawa said it is ‘carefully reviewing’ the ruling and ‘strongly considering’ an appeal

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A Federal Court judge has ruled that Ottawa went too far in characterizing plastic items as toxic in the Canadian Environmental Protection Act.

In a ruling released Thursday, Justice Angela Furlanetto wrote it was “unreasonable and unconstitutional” to list all plastic manufactured products as harmful.

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Furlanetto wrote that the government “acted outside of their authority,” adding “there is no reasonable apprehension” that all listed plastic manufactured items are harmful.

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Her ruling does not address the validity of the legislation, Bill S-5, brought forth by the government, and reaffirms that cabinet, through the Governor-in-Council, retains the power to remove items from the list of toxic materials.

“The authority to ‘add’ or ‘delete’ substances from the current Schedule 1 resides with the GIC and not with the Court,” the ruling reads.

“Transposing these powers to the Court would exceed its statutory jurisdiction.”

The case was brought forward by the Responsible Plastics Use Coalition, a not-for-profit corporation comprised of companies from the plastic industry who do business in Canada, as well Dow Chemical Canada, Nova Chemicals Corporation and Imperial Oil.

They collectively argued the federal government’s regulations were too broad and were not backed by evidence showing plastic in all materials was toxic.

The federal government has put in place ban of some single-use plastic items, including straws, grocery bags, and takeout containers.

The government is only able to regulate substances for environmental protection if they are listed as toxic under the act.

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The regulations banning those items are already being phased in, with a ban on manufacturing and importing six different categories already in place, and a full ban on their sale and export planned by the end of 2025.

The Alberta government had filed documents with the court as an intervener in the case, supporting the plastics companies.

On Thursday, Premier Danielle Smith and Environment Minister Rebecca Schulz issued a joint statement hailing the ruling, and claiming Ottawa’s policy had put “thousands of jobs and billions of investments at risk.”

“It’s time for the federal government to listen to the courts and to Canadians. We urge them to not appeal this decision, and to immediately delete ‘plastic manufactured items’ from Schedule 1 of the current Canadian Environmental Protection Act so as to avoid further need of legal action by Alberta and other provinces,” it reads.

It also notes the ruling states that labelling all plastics as toxic “poses a threat to the balance of federalism as it does not restrict regulation to only those (plastics) that truly have the potential to cause harm to the environment.”

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Federal Environment and Climate Change Minister Steven Guilbeault issued a statement following the ruling stating “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,” it reads. “We strongly believe in taking action to tackle this crisis and keep millions of garbage bags worth of trash off our beaches, out of our waters, out of our waters, and away from nature. That’s what we will keep fighting for.”

It goes on to say the government is “carefully reviewing” the ruling and is “strongly considering an appeal,” adding, “we will have more to say on next steps soon.”

“We will continue to work with provinces, territories, civil society and industry to curb plastic waste and pollution.”

— With files from The Canadian Press

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