Federal Government's Plastics Ban Upheld by Appeal Court in Major Environmental Ruling

The Federal Court of Appeal has overturned a lower court decision, reinstating the Canadian government's ban on single-use plastics in a landmark ruling that bolsters federal environmental authority. The decision, delivered in Ottawa, reverses a November 2023 Federal Court judgment that had struck down the ban as unconstitutional and unreasonable.

The legal saga began in 2021 when the federal government, under its Zero Plastic Waste agenda, listed "plastic manufactured items" as a toxic substance on Schedule 1 of the Canadian Environmental Protection Act (CEPA). This classification provided the legal foundation for the government to prohibit the manufacture, sale, and import of six specific single-use plastic items: checkout bags, cutlery, foodservice ware made from problematic plastics, ring carriers, stir sticks, and straws.

A coalition of plastics manufacturers, including Dow Chemical Canada, Imperial Oil, and Nova Chemicals Corp., operating as the Responsible Plastic Use Coalition, challenged the government's move. They argued that the government overstepped its constitutional authority and that the designation of all plastic manufactured items as "toxic" was overly broad and unsupported by evidence. In November 2023, Federal Court Justice Angela Furlanetto ruled in their favor, finding the government's order to be both unreasonable and unconstitutional, effectively halting the ban's implementation.

The Appeal Court's Reasoning

The federal government, led by Environment and Climate Change Minister Steven Guilbeault, immediately appealed the decision. The Federal Court of Appeal's ruling sided with the government, finding that the broad categorization was permissible under the law. The court determined that the government does not need to prove every single item in a category is harmful to justify regulation. Instead, it can regulate a class of substances if that class, as a whole, poses a danger to the environment or human health.

The court's decision hinged on the interpretation of federal powers, particularly the criminal law power, which grants Ottawa the authority to legislate on matters of public health and safety, including environmental protection. The judges concluded that the cabinet's order was a reasonable exercise of this authority aimed at mitigating the significant environmental harm caused by plastic pollution.

Environmental groups hailed the decision as a critical victory. They argue that plastic pollution is a pervasive threat to ecosystems, clogging waterways, harming wildlife, and breaking down into microplastics that contaminate air, water, and food sources. The reinstatement of the ban is seen as a crucial step in fulfilling Canada's international commitments and its domestic goal of achieving zero plastic waste by 2030.

Industry Response and Next Steps

The Responsible Plastic Use Coalition expressed its disappointment with the appeal court's decision. In a statement, the coalition maintained that plastics are valuable materials that support modern life and that the focus should be on improving recycling and waste management systems, not on outright bans. They argue that the "toxic" label is scientifically inaccurate and unfairly stigmatizes a versatile product, potentially leading to unintended consequences such as increased use of alternatives with higher carbon footprints.

The coalition is now weighing its legal options, which include seeking leave to appeal to the Supreme Court of Canada. A Supreme Court case would set a definitive national precedent on the scope of the federal government's power to regulate substances for environmental protection under CEPA. Until then, the ban is legally back in force, and businesses will need to ensure compliance with the phased-out timelines for the prohibited items.

This legal and regulatory battle is emblematic of a broader trend where the federal government is asserting its jurisdiction in contentious policy areas. A similar dynamic is at play as Canada moves forward with its digital services tax, facing down industry opposition and international pressure. Both cases test the limits of federal power in a modern, globalized economy.

The global context for environmental policy is also shifting. Canada's renewed ability to enforce its plastics ban aligns it with many European nations and other jurisdictions that have implemented similar measures. As international cooperation on environmental issues evolves, Canada's policy alignment with key partners will be crucial. The recent political shift in the United Kingdom, for example, where a UK's Labour landslide victory signals a shift in relations with Canada, could open new avenues for collaboration on shared environmental goals, including the global plastics treaty currently under negotiation.

For Canadian consumers and businesses, the reinstated ban means a continued transition away from the six targeted single-use plastic items. While many businesses had already adapted following the ban's initial introduction, the legal uncertainty had caused some confusion. The appeal court's ruling provides clarity, at least for the time being, and reinforces the momentum towards a circular economy where waste is minimized and resources are reused.