Federal Appeals Court Upholds Ottawa's Ban on Single-Use Plastics

In a significant decision for Canadian environmental policy, the Federal Court of Appeal has upheld the federal government's ban on six categories of single-use plastic items, reversing a lower court's ruling that had struck down the regulation. The judgment, delivered by a three-judge panel, affirms the government's authority to regulate these items as "toxic" substances under the Canadian Environmental Protection Act (CEPA), providing a major legal victory for the Trudeau government's climate and pollution agenda.

The case revolves around a 2021 Order in Council that added "plastic manufactured items" to the List of Toxic Substances in Schedule 1 of CEPA. This designation paved the way for regulations that came into effect in late 2022, prohibiting the manufacture, sale, and import of plastic checkout bags, cutlery, foodservice ware made from problematic plastics, ring carriers, stir sticks, and straws.

The Legal Challenge and Initial Ruling

The policy was immediately challenged in court by the Responsible Plastic Use Coalition (RPUC), a group of plastics manufacturers including Dow Chemical Canada, Imperial Oil, and Nova Chemicals. They argued that the federal government had overstepped its constitutional authority by using its criminal law power to regulate waste management, a domain they contended falls under provincial jurisdiction. Furthermore, they argued that the designation of all "plastic manufactured items" as toxic was overly broad and scientifically unfounded, as not all plastics pose the same environmental or health risks.

In November 2023, Federal Court Justice Angela Furlanetto sided with the industry coalition. She ruled that the government's blanket listing was unreasonable and unconstitutional because it was not supported by evidence that all items in the category were harmful. She found the government had acted outside the scope of its authority, effectively quashing the ban and sending the government back to the drawing board.

The Appeal Court's Reversal

The federal government promptly appealed Justice Furlanetto's decision, leading to the current ruling. The Court of Appeal found that the lower court erred in its analysis. The panel concluded that the government's approach was sound and that listing the broad category of "plastic manufactured items" was a reasonable first step in a multi-stage regulatory process. The court determined that the government is not required to prove every single item within a category is toxic before listing it. Instead, the listing enables the government to create targeted regulations for specific items that do pose a threat to the environment, which is precisely what it did with the ban on the six specific products.

The appeal judges affirmed that protecting the environment is a matter of national concern and falls within the federal government's criminal law powers under the Constitution. This decision solidifies the legal foundation for using CEPA to combat plastic pollution.

Broader Context of Federal Environmental Law

This legal victory for Ottawa comes amid ongoing tensions over federal-provincial jurisdiction on environmental files. The debate over the scope of federal power is not limited to plastics. It is part of a broader pattern of legal battles over federal environmental jurisdiction, similar to the recent Supreme Court decision that prompted Ottawa to amend its environmental review law after it was deemed an unconstitutional overreach. That case, concerning the Impact Assessment Act, saw the country's top court place limits on federal authority over major projects, forcing a legislative rewrite. This legal back-and-forth mirrors other federal environmental initiatives, including how Ottawa overhauled its environmental review law following a Supreme Court rebuke, highlighting the complex constitutional balancing act required for national environmental regulation.

Reactions and Next Steps

Environment and Climate Change Minister Steven Guilbeault praised the appeal court's decision, calling it a win for environmental protection and public health. In a statement, he emphasized the government's commitment to its plan to eliminate plastic waste and reiterated that the science is clear regarding the harm plastics cause to wildlife and ecosystems.

Environmental organizations, such as Environmental Defence and Oceana Canada, also celebrated the ruling. They urged the government to move forward with implementing the ban and to expand its scope to include other harmful plastic products. They see the decision as a crucial step in addressing the global plastic pollution crisis.

Conversely, the Responsible Plastic Use Coalition expressed disappointment. The coalition maintains that the "toxic" designation is scientifically inaccurate and creates economic uncertainty for the Canadian plastics industry, which employs tens of thousands of people. The group has stated it is reviewing the decision and considering its next steps, which could include seeking leave to appeal to the Supreme Court of Canada.

With the ban now legally reinstated, businesses across the country that had paused their transition away from the prohibited items will need to ensure compliance. The regulations had a phased implementation, and while the court challenge created a period of uncertainty, the legal framework is now once again in effect. The ultimate fate of the ban may still rest with the Supreme Court, should it agree to hear the case, setting the stage for a final, definitive ruling on this landmark environmental policy.