Federal Plastics Ban Reinstated by Court of Appeal in Major Environmental Policy Ruling

In a significant legal victory for the federal government, the Federal Court of Appeal has upheld Ottawa's ban on certain single-use plastic items, reversing a previous ruling that had struck down the regulations as unconstitutional. The 2-1 decision, released in late June, found that the government acted within its jurisdiction when it listed "plastic manufactured items" as toxic under Schedule 1 of the Canadian Environmental Protection Act (CEPA), providing the legal foundation for the ban.

The ruling breathes new life into a cornerstone of the Liberal government's environmental platform, which aims to achieve zero plastic waste by 2030. The regulations, which began phasing in in 2022, prohibit the manufacture, sale, and import of six categories of single-use plastics: checkout bags, cutlery, foodservice ware made from problematic plastics, ring carriers, stir sticks, and straws.

The Legal Journey: From Ban to Reversal

The federal cabinet officially added plastic manufactured items to the CEPA list of toxic substances in 2021. This classification was the critical step that enabled the government to regulate and ultimately ban them, framing plastic pollution as a national environmental threat. The government argued that the pervasive and harmful nature of plastic pollution justified federal intervention.

However, this move was immediately challenged in court by the Responsible Plastic Use Coalition (RPUC) and a group of major petrochemical companies, including Dow Chemical Canada, Imperial Oil, and Nova Chemicals Corp. They argued that the federal government's designation was overly broad and an unconstitutional intrusion into provincial powers, which include waste management and recycling. Their legal challenge asserted that not all plastic items are toxic or harmful, and that lumping everything from a bottle cap to a plastic bag into a single "toxic" category was unreasonable and legally flawed.

In November 2023, Justice Angela Furlanetto of the Federal Court sided with the industry coalition. She ruled that the government's order was both unreasonable and unconstitutional. Her decision stated that it was too broad to categorize all "plastic manufactured items" as toxic, as the evidence did not support the claim that all such items are inherently harmful. She concluded that the policy represented an overreach of federal authority into areas of provincial jurisdiction.

The federal government promptly appealed that decision, leading to the recent hearing at the Federal Court of Appeal. The appeal court's majority opinion took a different view of the government's authority. The judges determined that the "pith and substance" of the regulation was not to manage waste generally, but to control plastic pollution, a matter falling under the federal government's constitutional power to make criminal law. This power allows Ottawa to prohibit activities that pose a threat to public health and the environment.

The majority wrote that the "toxic" designation under CEPA is a legal trigger for regulation, not a scientific assessment of every single item. They found that the government had sufficient evidence to establish that plastic pollution, as a whole, poses a significant environmental harm, justifying the regulatory action.

A Broader Battle Over Environmental Jurisdiction

This legal battle is part of a wider, ongoing conflict between Ottawa and several provinces over who has the final say on environmental and resource policy. Provinces, particularly Alberta and Saskatchewan, have consistently challenged federal initiatives like the carbon tax and environmental impact assessment laws, arguing they infringe on provincial rights to manage their own resources and economies.

The plastics ban decision stands in contrast to another recent high-profile case. For instance, the Supreme Court recently curbed federal power when it found the Impact Assessment Act, which reviewed major resource projects, to be largely unconstitutional. That ruling affirmed that the federal government could not use its environmental concerns to significantly regulate projects that fall primarily within provincial jurisdiction. In response to that rebuke, Ottawa has had to overhaul environmental laws to better respect provincial authority. The plastics case, however, was decided on different constitutional grounds—the criminal law power—which the appeal court found to be a valid basis for federal action against pollution.

Reactions and What's Next

Environment Minister Steven Guilbeault celebrated the ruling as a victory for environmental protection. "We have always said that the government is on solid legal and scientific footing... This is a win for Canadians and for the environment," he stated. Environmental organizations, such as Environmental Defence and Oceana Canada, echoed this sentiment, urging the government to proceed with and even expand its regulations on harmful plastics.

Conversely, the RPUC expressed its disappointment with the split decision. The coalition stated it is reviewing the ruling and considering its next steps, which could include seeking leave to appeal to the Supreme Court of Canada. An industry spokesperson argued that the decision creates ongoing uncertainty for businesses and that a collaborative approach focusing on recycling and a circular economy would be more effective than a ban.

For businesses, the legal back-and-forth has created a challenging environment. Many restaurants, retailers, and manufacturers had already invested in alternatives to the banned items, while others paused their transition plans after the initial Federal Court ruling. With the ban now reinstated, companies must ensure they are in full compliance. The next phase of the ban, which prohibits the sale of these items, is set to be fully enforced, and the government is also planning further regulations targeting other plastic products.

The ultimate fate of the single-use plastics ban may still be decided by the country's highest court. If the Supreme Court agrees to hear the case, it will have the final word on whether the federal government's approach is a valid exercise of its power to protect the environment for all Canadians.