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Canada’s single-use plastic ban faces its first legal test

Canada’s single-use plastic regulations face their first legal test today as the plastics lobby and the federal government head to court.

A federal court judge will hear arguments from lawyers on all sides from Tuesday to Thursday in Toronto.

The federal judge, who is not expected to deliver a ruling for months, must consider whether Ottawa was justified when it listed plastic products as toxic under the Canadian Environmental Protection Act.

“This is one of the largest environmental court cases that we have seen in Canada,” said Anthony Merante, plastics campaigner at Oceana Canada, an intervener in the case.

“This is about tackling Canada’s second most pertinent environmental crisis, which is the global plastics pollution crisis.”

The Liberal government relied on a scientific assessment of plastic pollution published in 2020. It found that plastic pollutes rivers, lakes and other water bodies, harming wildlife and leaving microplastic fragments in the water we drink. 

That report was soon followed by several federal policy and regulatory moves, culminating most recently in the federal government officially announcing dates for a ban on the manufacture, sale and import of certain plastic products.

The ban affects checkout bags, straws, stir sticks and cutlery. Some of these prohibitions have already taken effect and some won’t happen until 2025.

canadas single use plastic ban faces its first legal test
The federal government announced which single-use plastics will be covered by a national ban in 2022. (CBC Graphics)

As the government attempted to address the pollution problem, the plastic industry accused the government in legal briefs of introducing a plan with “fatal flaws.” It’s not the federal government’s place, the complainants argue, to regulate plastic pollution when the provinces and territories typically handle waste management.

“The government’s decision to regulate all plastic products may be motivated by laudable goals (e.g., diverting waste from municipal landfills and seizing the value of a circular plastics economy),” says a court document filed on behalf of the plastics industry. “However, those goals must be pursued in accordance with the Constitution.”

The plastics industry also alleges the federal government failed to demonstrate it had enough scientific evidence to justify the regulations. The industry argues Ottawa failed “to conduct a risk assessment” and “to characterize ecological exposure to all plastic products.”

“The test for toxicity is not satisfied by proving that a single bottle cap poses a risk to a single animal,” says a legal brief filed on behalf of the plastics industry.

The plastics companies bringing the case — Dow Chemical Canada, Imperial Oil and Nova Chemicals — declined to comment or didn’t return CBC’s requests for comment. The Responsible Plastic Use Coalition — an industry group, also an applicant in the case — did not respond.

A York University researcher who is not involved in the case said he believes the federal government’s plastics policies, although well-intentioned, are rooted more in politics than science.

“What they are doing is responding to an optics issue where we see plastic bags in our environment and oceans,” said Calvin Lakhan, a research scientist and co-investigator of the “Waste Wiki” project in the faculty of environmental studies. “That’s things that consumers really care about.”

The lifecycle analysis of individual plastic items, Lakhan said, is complex; he suggested the Liberals’ plastic pollution approach needs a rethink.

A closeup of empty plastic containers that are part of an art installation.
A 2019 Deloitte study found less than one-tenth of the plastic waste Canadians produce is recycled. (Tijana Martin/The Canadian Press)

Environment Minister Steven Guilbeault said in a media statement the Liberals are delivering on a campaign promise. He then went after the plastics industry.

“While a handful of big multinational companies try to stop our ban on harmful single-use plastics, we’re going to keep fighting for the clean, healthy environment Canadians deserve,” Guilbeault said in the statement. “We’re going to stick to the facts and science and deliver the sustainable options Canadians are asking for.” 

The court will hear from several interveners, including the American Chemistry Council, the American Fuel and Petrochemical Manufacturers and the governments of Alberta and Saskatchewan.

Several environmental groups, including Environmental Defence and Oceana, will also appear to ask the court to uphold the government’s plastic regulations. 

The lawyer representing the environmental groups, Ecojustice’s Lindsay Beck, said a win for the government would solidify the push against plastic pollution, while a loss would throw a wrench into those efforts.

If the court overturns the regulations, she said, it could have a domino effect that could force the government to rescind its single-use plastic ban, which is also subject to its own court challenge.

“It means that that ban would be vulnerable to being overturned,” Beck said. 

Federal data show that in 2019, 15.5 billion plastic grocery bags, 4.5 billion pieces of plastic cutlery, three billion stir sticks, 5.8 billion straws, 183 million six-pack rings and 805 million takeout containers were sold in Canada.

A 2019 Deloitte study found less than one-tenth of the plastic waste Canadians produce is recycled. That meant 3.3 million tonnes of plastic was being thrown out annually, almost half of it plastic packaging.

Newfoundland and Labrador, Prince Edward Island and Nova Scotia already have taken their own action against plastic bags, as have some cities, including Regina, Victoria and Montreal.

Sobeys eliminated single-use plastic bags at its checkout counters in 2020 and Walmart followed suit this past April. Loblaws announced Monday morning it will ban plastic bags by spring 2023.

Many fast food outlets have replaced plastic straws with paper versions over the last several years as well.

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