The Federal Court’s Judicial Review On Plastics Manufacturing

When the Canadian Environmental Protection Act, 1999 S.C. 1999, c. 33 (“CEPA”) came into force, the intent of the bill was to promote sustainable development by curbing pollution, environmental emergencies, and ocean disposal. Pursuant to Section 90(1) of the CEPA, the Ministers recommended that Plastic Manufactured Items (“PMIs”) be added to the list of substances deemed toxic. In 2021, PMIs were added to Schedule 1 via the Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act (the “Order”).

A number of chemical and plastics resin manufacturing companies brought a judicial review and argued that PMIs are not a “substance” that should fall under Schedule 1 for the following reasons:

• listing PMIs in Schedule 1 was overly broad;
• no proper scientific analysis had taken place in order for PMI’s to be added to the Schedule as a toxic substance; and
• its addition was not the proper use of the Governor in Council’s authority under CEPA.

In June 2023, Schedule 1 of CEPA was repealed and reinstated under Bill S-5: Strengthening Environmental Protection for a Healthier Canada Act, S.C. 2023, c. 12. (“Bill S-5”), which affected the judicial review.

THE FEDERAL COURT DECISION

The Federal Court held that the Order was unreasonable and unconstitutional, finding that the Governor in Council was obligated to find that a substance is toxic before adding it to the Schedule. Accordingly, the Order was struck down as invalid and unlawful, but due to the repeal of the Order and the reinstatement under Bill S-5 earlier in 2023, the effect of the decision was that the designation of PMIs in Schedule 1 could not be deleted by a court order.

IMPLICATIONS

This case represents a reluctance by certain industries to strive towards the net zero by 2050 goal introduced by the government and is an example of the obstacles faced by the government to address plastics pollution.

Despite this ruling, both the provincial and federal government are continuing the efforts towards the 2050 net zero goal. The B.C. government has put some of the burden of reducing plastics use and pollution onto businesses and consumers with another version of BC’s Single-Use and Plastic Waste Prevention Regulation which partially came into effect on December 20, 2023, and the federal government is proposing a new greenhouse gas emissions cap which should help reduce pollution (if it remains unchallenged by industry).

This post was co-authored by Nicola Virk, and articling student, Laura Beaudry.

Want more useful updates on recent decisions? Contact Nicola Virk at [email protected] or anyone else from our team listed on the Authors page.