The case of Responsible Plastic Use Coalition and others v. Minister of the Environment  was heard in early March Federal Court in Toronto.
Four plaintiffs, the Responsible Plastic Use Coalition, Dow Chemical Canada ULC, Imperial Oil and Nova Chemicals Corporation, are seeking to have the order dated May 12, 2021, to add plastic manufactured items to Schedule 1 of the Canadian Environmental Protection Act (1999) as a toxic substance, rescinded (the “Order”). For its part, the Attorney General of Canada (the “AGC”) has attempted to demonstrate its validity.
Stakeholder status was granted to the American Chemistry Council, American Fuel & Petrochemical Manufacturers, Plastic Industry Association, the Government of Alberta, the Government of Saskatchewan, the Environmental Defence Canada Inc. Association, Ocean Canada and Animal Justice.
The Arguments of the Applicants
In support of their claims, the plaintiffs rely primarily on two arguments, one being administrative and the other constitutional.
Firstly, the Order would be invalid for being in violation of its enabling legislation, the Canadian Environmental Protection Act (1999) (“CEPA”), and for being unreasonable.
According to the applicants, plastic manufactured items do not meet the interpretation of “substance” or “class of substances” under section 3 of the CEPA. Plastic manufactured items are, in their view, too broad a group of materials to fall under these definitions. Moreover, the federal government did not demonstrate the toxic nature of plastic manufactured items, relying solely on a literary review and a study by an accounting firm. The plaintiffs consider that the information contained in these documents does not meet the CEPA concept of toxicity or the required level of technical demonstration. The federal government’s evidence of toxicity would therefore be more a matter of conjuncture.
The plaintiffs also argue that the Order is unreasonable due to its irrational and illogical nature. The Order specifically equates all plastic products as toxic substances, which puts hundreds, if not thousands, of everyday products on the list of toxic substances, including numerous harmless products. The plaintiffs also consider it illogical to subject the finished product, i.e. the plastic items, but not the raw materials used to produce these items.
Secondly, the Order would exceed the criminal jurisdiction of the federal government. The plaintiffs first claim that the principles of R v. Hydro-Québec  have not been respected, due to a general categorization of plastic manufactured items, an overly broad language, a lack of scientific certainty and the absence of evidence demonstrating significant danger. The plaintiffs then argue that the pith and substance of the Order, identified as waste management and recycling, does not relate to a criminal law objective, but rather falls within provincial jurisdiction.
As stakeholders, the provinces of Saskatchewan and Alberta reiterated the above argument and add that, in their view, the Order could not fall within the federal jurisdiction of Peace, Order and Good Government, since plastic manufactured items lack the required uniqueness to be an issue of national concern and that the provinces are acting in accordance with waste management.
Lastly, for U.S. stakeholders, the order would present an issue with respect to Canada’s international obligations, particularly with respect to the Canada-United States-Mexico Agreement and the World Trade Organization’s Technical Barriers to Trade Agreement. According to stakeholders, the aforementioned agreements would commit Canada to analyzing the toxicity of a product through a scientifically rigorous risk-based approach, which would not be the case under the Order. Moreover, the stakeholders argued that the Order would have a “more than minimal” impact on international trade and create an unpredictable regulatory environment, in violation of Canada’s obligations.
The Arguments of the AGC
For their part, the AGC responded that the interpretation of substance in the CEPA is very broad, including “any matter that is capable of being dispersed in the environment or of being transformed in the environment into matter that is capable of being so dispersed or that is capable of causing such transformations in the environment” and that plastic manufactured items would meet this interpretation. Additionally, the CEPA would set out general environmental protection objectives, which would be consistent with the designation of plastic manufactured items as toxic. At the hearing, the AGC indicated that in the absence of scientific consensus on assessing the impact of microplastics, the use of literature reviews is legitimate scientific evidence.
Furthermore, the AGC considers that it is not for a court to rule on the methodology behind the Order or whether the description of the substance is adequate, too broad or necessary, but simply to qualify the decision as reasonable, intelligible and justifiable. They also stressed that the judge’s analysis must be conducted in light of the precautionary principle, incorporated into the CEPA, according to which it is not necessary to wait until there is sufficient evidence or a level of scientific certainty before intervening in a problematic situation.
With respect to the division of powers, the AGC claims that the Order benefits from a presumption of constitutional validity and that it is a valid exercise of Parliament’s criminal law power. The AGC argues that the Order has a legitimate public purpose, namely the protection of the environment, and that when considered with the prohibitive scheme of the CEPA, it is accompanied by a prohibition and a penalty, thus meeting the criteria set out in R v. Hydro‐Québec.
Finally, the AGC states that domestic law is not subordinate to international law and therefore international treaties could not justify overriding a clear legislative intent.
The decision to be rendered by the Federal Court will have significant impacts on the Canadian plastic industry and trade. This will certainly be something to monitor.