Nov. 18, 2023

Plastic bags have been disappearing from the checkout lines of Canadian retailers after the federal government banned them last year, along with a handful of other single-use plastic items such as straws and disposable takeout cutlery. But just as businesses and consumers were adapting, a court ruling upended the policy, a key part of Canada’s effort to be among the “world leaders in fighting plastic pollution.”

Regulations prohibiting six single-use plastics — stir sticks, plastic checkout bags, cutlery, straws, six-pack rings and some food service packaging — were announced last June by Environment and Climate Change Canada. The government first made a cabinet order to regulate those plastics in 2021, declaring the items to be toxic substances under the Canadian Environmental Protection Act.

But Justice Angela Furlanetto of the Federal Court ruled on Thursday that the government’s classification was a stretch, calling the designated items “too broad to be listed” as toxic substances. She declared the cabinet order to be “both unreasonable and unconstitutional.”

The government “acted outside their authority” and the decision to add the plastic items to the toxic substances list “was not supported by the evidence” that it had on hand, Justice Furlanetto wrote.

The decision delivered a victory to the coalition of plastics manufacturers and industry groups that challenged the government’s ban, including Imperial Oil, Nova Chemicals and Dow Chemical, one of the world’s largest single-use plastics makers.

“Alberta wins again,” Danielle Smith, the province’s premier, said in a statement, underscoring the key role of her province in plastics manufacturing, having Canada’s largest petrochemical sector and being the country’s largest supplier of natural gas. Alberta and Saskatchewan both made submissions to the court as interveners, objecting to what officials argued was a federal overreach of jurisdiction.

The government is reviewing the court’s judgment and “strongly considering an appeal,” the environment minister, Steven Guilbeault, said in a statement posted on X, the social media site.

[From The Times’s Style Desk: Trying to Live a Day Without Plastic]

The decision is the third environmental policy “blow to the federal government’s agenda in the last little while,” Mark Winfield, a professor at the faculty of environmental and urban change at York University in Toronto, told me.

The previous two setbacks Professor Winfield mentioned came in October, when the Supreme Court ruled that several sections of a law covering environmental impact assessments, a process largely used to consider how infrastructure projects could affect the environment, were unconstitutional. Later that month, Prime Minister Justin Trudeau also announced that the government would temporarily lift the carbon tax for home heating oil to address the high cost of living, in a move some environmentalist denounced as backsliding on its climate goals and environmental agenda.

One of those objectives is to have zero plastic waste by 2030.

“We’re disappointed with the decision,” said Lindsay Beck, a lawyer at Ecojustice, an environmental law group in Toronto, who represented two other organizations as interveners before the court. “By listing plastic as a toxic substance, the government had taken a really important first step toward curbing plastic pollution.”

Unlike those more complicated policy issues, addressing the court’s ruling on single-use plastics could be a matter of the government narrowing the toxic substances listed, said Professor Winfield, by identifying specific types of plastics and resins, for example.

“This is probably fixable to a degree,” Professor Winfield said. “They have to come back and be more specific about what exactly — types of plastics and uses of plastics — are they actually prohibiting, and that’s something which would have a reasonable chance of surviving a constitutional challenge. That would be the fastest thing to do.”