Federal Court of Appeal Upholds Ottawa's Ban on Single-Use Plastics in Major Environmental Ruling

In a significant victory for the federal government's environmental policy, the Federal Court of Appeal has reinstated a nationwide ban on certain single-use plastics. The unanimous decision, released Monday, overturns a November 2023 Federal Court ruling that had deemed the ban unconstitutional and unreasonable, effectively putting the regulations on hold.

The ruling breathes new life into a key pillar of the Liberal government's agenda to combat plastic pollution and brings legal clarity to the use of the Canadian Environmental Protection Act (CEPA) as a tool for regulating harmful substances.

Background of the Legal Battle

The federal government finalized regulations in 2022 to phase out six categories of single-use plastic items: checkout bags, cutlery, foodservice ware made from hard-to-recycle plastics, ring carriers, stir sticks, and straws. The legal underpinning for this ban was the government's 2021 decision to add "plastic manufactured items" to the list of toxic substances under Schedule 1 of CEPA. This classification provided the authority to regulate the items from creation to disposal to mitigate environmental harm.

Shortly after, a coalition of plastics manufacturers, including Dow Chemical Canada and Imperial Oil, launched a legal challenge. They argued that the government's designation of all plastic manufactured items as "toxic" was scientifically baseless and an overreach of federal power. They contended that plastic is a versatile material, not a single chemical substance, and that the issue was one of waste management, which falls under provincial jurisdiction, not toxicity.

In November 2023, Federal Court Justice Angela Furlanetto sided with the industry coalition. She ruled that it was unreasonable to declare all plastic manufactured items toxic, finding the category to be overly broad. Her decision invalidated the government's order and halted the enforcement of the ban.

The Appeal Court's Reasoning

The federal government immediately appealed Justice Furlanetto's decision, leading to the current ruling. The three-judge panel of the Federal Court of Appeal found that the government acted within its authority. They concluded that the Governor in Council was reasonable in determining that the broad category of "plastic manufactured items" met the legal definition for being considered "toxic" under CEPA.

The court clarified a crucial point: the "toxic" designation under CEPA is a legal and regulatory term, not a narrow scientific one. It allows the government to regulate substances that have, or may have, a harmful effect on the environment or biological diversity. The appeal judges agreed that the evidence of pervasive plastic pollution in ecosystems was sufficient to justify the government's preventative approach. The ruling affirmed that the government does not need to prove every single item in a category is harmful, but rather that the category as a whole poses a threat that warrants regulation.

Reactions and Broader Implications

Environment Minister Steven Guilbeault hailed the decision as a win for environmental protection. "We have always been confident in our position and our approach," a statement from his office read. "This decision confirms our power to take action to keep plastics out of our environment. We will continue to move forward with our comprehensive plan to reduce plastic pollution."

Environmental organizations celebrated the ruling as a landmark victory. Groups like Environmental Defence and Oceana Canada said the decision reaffirms the government's responsibility to protect the country from the harms of plastic pollution and urged Ottawa to not only enforce the current ban but also to expand it.

Conversely, the Responsible Plastic Use Coalition, which led the lawsuit, expressed its disappointment. A spokesperson stated the coalition is reviewing the decision and is considering all its legal options, including seeking leave to appeal to the Supreme Court of Canada.

This legal fight is emblematic of a wider constitutional tension over environmental regulation in Canada. While the Federal Court of Appeal's decision on plastics strengthens Ottawa's position in using CEPA, the government has faced challenges on other fronts. For example, last year Ottawa was forced to amend its environmental review law for major resource projects after the Supreme Court deemed parts of it an unconstitutional overreach into provincial jurisdiction. These cases highlight the delicate balance of power defined in the Constitution.

What Happens Next?

With the legal uncertainty lifted, the federal regulations are once again in force. The phased timeline for the prohibition of the manufacture, sale, and export of the six listed items will resume. Businesses across the country, from major retailers to small restaurants, will need to ensure they are in compliance with the restored ban.

The primary question now is whether the Supreme Court of Canada will be asked to weigh in. If the plastics coalition seeks and is granted leave to appeal, the legal battle could continue for another year or more. However, legal experts suggest that the top court may be reluctant to hear the case given the unanimous and detailed nature of the appeal court's ruling.

For now, the decision stands as a powerful endorsement of the federal government's authority to tackle the plastic pollution crisis head-on, setting a precedent that could influence environmental policy in Canada for years to come.