After a Federal Court Justice ruled against the ban on plastics, climate czar Steven Guilbeault announced Cabinet is strongly considering an appeal.
"The Government of Canada is carefully reviewing the Federal Court judgment and is strongly considering an appeal," said Guilbeault in a brief statement Thursday evening. "We will have more to say on next steps soon," he added.
Courtesy of a suit filed by the Responsible Plastic Use Coalition and several chemical companies that manufacture plastics, the Court said labeling all plastic manufactured items under the Canadian Environmental Protection Act as "toxic" was excessive and "unreasonable."
Cabinet on May 12, 2021 listed "all plastic manufactured items" including, toys, textiles, kitchen appliances, carpets, bottling and packaging, prompting manufacturers to file their legal challenge a week later.
"Plastic manufactured items leapfrogged from political commitment to a 'toxic' designation without any testing or risk-based assessment," lawyers wrote the Court. "This is precisely the mischief the Environmental Protection Act’s rigorous, science-based scheme was intended to avoid."
They argued the federal government’s definition of 'plastic manufactured items' was too broad, despite admitting that plastic is among the items that are commonly littered, reported Blacklock’s Reporter.
"Litter can be problematic but that does not satisfy the threshold of 'toxicity' under the Act," said the submission.
Before the Court ruling, the federal government planned to impose a Single Use Plastic Prohibition Restrictions effective in 2024 that would ban the sale of straws, grocery bags, six-pack rings, stir sticks, plastic cutlery and disposable polystyrene food containers.
Among those items that could be included in the Cabinet Order are thousands of products essential to modern living from medical equipment to food packaging to personal protective equipment.
According to Anthony Furey, Executive Director of The Stronach Foundation for Economic Rights: A Coalition of Concerned Citizens, the ruling does not entail automatic changes to the plastic ban.
"The ruling pertains to an order in council Guilbeault made, but not the actual toxic substances legislation," he added. "Legal experts will surely weigh in on what can happen next."
According to Blacklock’s Reporter, lawyers representing the chemical manufacturers maintain the order "does not rest on scientific data evaluated through sound, credible and transparent analysis."
Plastic items are made of resins "which are both safe and legal to use in Canada," they said. "The test for toxicity is not satisfied by proving a single bottle cap, if littered, may pose a risk to the biota that ingests it."
In addition, they argued the Cabinet order breached provincial jurisdiction of waste management, citing Section 92 of the Constitution Act that states local authorities are responsible for "local works and undertaking," property rights and "matters of a merely local or private nature."
"[The concerns raised by the order] is not sufficient to ground federal regulatory jurisdiction over plastic manufactured items as a toxic substance," said the submission.
Alberta Premier Danielle Smith and Environment Minister Rebecca Schulz endorsed the decision as a win for autonomy, according to a joint statement.
"A little over a year ago, Alberta intervened with the Federal Court to argue that the federal government’s decision to unilaterally label plastic as a 'toxic substance' is an unconstitutional intrusion into provincial jurisdiction and a threat to our economy," it reads.
Cabinet in a Regulatory Impact Analysis Statement last December 31 said the ban would cost consumers dearly. "These costs are significant," it said.
"The proposed regulations are expected to result in $205 million in costs in the first year of full policy stringency," wrote analysts.
The Court verdict urged "cooperative federalism" wherein "the provinces are not subordinate to the federal government."
They said a federal ban on plastics "poses a threat to the balance of federalism."