The plastic pollution puzzle: What the court’s decision means for ocean plastic regulation

Plastic Bag on rocky beach

Federal Court decision reminds us all levels of government have a role to play in regulating plastic pollution  

On November 16th, the Federal Court found an order listing plastic manufactured items as toxic under the Canadian Environmental Protection Act to be invalid. Despite being a setback for the federal government’s attempts to thwart plastic pollution, the decision reminds us that all levels of governments – and in particular our provincial government here in British Columbia – must do more to address the scourge of plastic pollution. 

In this post we review the decision and its implications for plastic pollution in BC, which is an increasing issue in coastal and marine areas.  
Plastics pollution is a big problem in the ocean  

Each year, at least 14 million tonnes of plastic end up in the ocean. This consists of abandoned or lost fishing gear, plastic buoys, polystyrene (commonly known as Styrofoam) from aquaculture operations and dock floats, plastic beverage bottles and other single-use plastics.   

Marine plastic pollution threatens ocean ecosystems, food security, human health, coastal tourism and contributes to climate change. Marine debris’ impact on marine life is significant: marine species can ingest debris, it can entangle them, the debris can damage their habitat, and non-native species can be transported into new areas on the debris. Microplastics, which break down from plastic marine debris, negatively impact the ecosystem, enter the food chain, and likely hurt human health as well.   

The cost of marine plastic pollution to society is astronomical, amounting to between $500 billion and $2.5 trillion USD per year worldwide in lost benefits (or “ecosystem services”) like fisheries, aquaculture and recreational opportunities. These are costs disproportionately borne by coastal communities and their governments. Here in BC, the provincial government has spent or committed $50 million in funding shoreline clean-ups through the Clean Coast, Clean Waters Initiative (this does not include the countless volunteer hours spent on clean-ups, and the investment of the non-profit sector).  

Because ocean plastic pollution comes from many different sources and impacts many different places, governments worldwide – including Canadian governments – have been coming together to coordinate their efforts to address it. In 2018, Canada, along with countries, businesses and organizations all around the world signed the Ocean Plastics Charter, committing Canada to take action to reduce plastic waste.   

That same year, the Canadian Council of Ministers of the Environment, which includes ministers from each federal, provincial, and territorial government, developed a Strategy on Zero Plastic Waste. The Strategy acknowledges that plastic pollution is a serious and exponentially increasing global environmental problem, and details goals (referred to as “result areas”) it seeks to achieve to move to a more circular plastics economy – “one which captures and retains the value of plastics across their lifecycle.” As the strategy acknowledges, stronger government regulations are needed to meet these goals.  

Responsible Plastic Use Coalition decision  

In 2021, as part of its efforts to combat plastic pollution, the federal government issued an order listing “Plastic Manufactured Items” as a toxic substance pursuant to s. 90(1) of the Canada Environmental Protection Act (CEPA). CEPA enables the government to regulate or prohibit toxic substances listed under the Act – in other words, listing is the first step to regulating.   

The Regulatory Impact Analysis Statement (RIAS) accompanying the government’s order sought to justify the order based on a draft scientific assessment, published by the federal government, that summarized over 600 scientific publications on plastic pollution. The scientific assessment detailed harms to organisms and habitats from plastics and found that, without mitigation measures, the incidence of environmental effects from plastic pollution would continue to increase.  

The Responsible Plastic Use Coalition (RPUC), a coalition of plastic industry companies, brought an application to judicially review the order to the Federal Court. RPUC argued, among other things, that the order was too broad, because a proper scientific analysis and risk assessment had not been completed to show that each item in the Plastic Manufactured Items category was toxic. As a result, the RPUC submitted, the federal government did not have the authority to issue the order and the order was unconstitutional.  

The Federal Court agreed with RPUC that the order was too broad. The court noted that s. 90(1) of CEPA only permits “toxic” substances to be listed in the Act, and that pursuant to s. 64, a toxic substance must be either “inherently toxic” or be shown that it is entering (or may enter) the environment in such a way that it will have harmful effects on the environment or its biodiversity, or that it’s a danger to human life, health or to the environment on which life depends.  

The Court found that the RIAS improperly extrapolated that all Plastic Manufactured Items were toxic, even though not all plastics products end up as plastic pollution in the environment. The Court also found that the government only presented evidence for a small number of plastic items exhibiting adverse effects on some animals. 

As a result, the Court found that the government had not acted in accordance with the requirements of CEPA. It is important to note that the Court did not deny that there might be evidence of harm from types of plastics, but rather it found that that evidence relied upon by Canada in its RIAS was not sufficient.  

Moreover, the Court noted that CEPA finds its constitutional basis in the federal government’s criminal law power, under s. 91(27) of the Constitution Act, 1867. But to be valid under Canada’s criminal law power, items restricted under CEPA must “actually be dangerous i.e., there needs to be a harm.” Because the federal government did not show, with evidence, that every item under the category of “Plastic Manufactured Items” has the potential to cause harm to the environment, the order was not valid under the federal government’s criminal law power and is thus unconstitutional.  

What happens next?  

Soon after the decision was released, Minister of Environment Steven Guilbeault announced that the federal government would be appealing the decision. Accordingly, there is the potential that the Federal Court of Appeal (or perhaps even the Supreme Court of Canada), may overturn the Federal Court’s decision.

But if the Federal Court’s decision is upheld, it will mean that the federal government will likely have to be more precise and provide more specific supporting evidence when listing items as toxic under CEPA. This certainly does not remove the federal government’s ability to regulate substances under CEPA, but it could slow down the government’s ability to list substances that are arising as emerging threats to human health or the environment (there is a parallel legal challenge to the federal government’s regulation phasing out single-use plastics, which is currently on hold pending the outcome of this case). 

However, let’s not forget that the federal government is not the only government that can or should address plastic pollution – and note that this decision does not impact provinces’ and local governments’ ability to regulate plastics. As the court stated:

“Most industries that produce or use [Plastic Manufactured Items] will be under provincial regulatory jurisdiction, including environmental aspects of their activities such as the production and disposal of waste products. The ubiquity of plastic in society means that most businesses and organizations will use [Plastic Manufactured Items] and will be under provincial jurisdiction” (para. 176) 

Our provincial government here in BC (as well as our local governments) can do a lot more to address plastic pollution that is clogging our beaches and degrading marine ecosystems. And this is the perfect time to demand more from our provincial government.   

BC is currently developing a Coastal Marine Strategy for BC that will guide its ocean management for the next twenty years. The Strategy intends to set ambitious goals to restore coastal habitats and clean up marine pollution.   

If the Province wants to meet these goals, it is going to have to bring in stronger regulations to address plastic pollution in the ocean. This includes persistent substances like polystyrene found in docks and fishing gear, both of which the province has some jurisdiction to address.   

Like so many environmental problems, plastic pollution impacts us all. But coastal communities and ecosystems, where so much of this pollution ends up, bear the brunt of it.   

If we are going to address this issue, we need every level of government rowing in the right direction. While the federal government deals with the appeal of the Federal Court’s decision and the uncertainty it brings, this is a moment for the government of BC to step up to the table – we need all hands on deck.

Top photo: Plastic bag on rocky beach (Bo Eide via Flickr Creative Commons)

Erin Gray, Staff Lawyer
Michael Bissonnette, Staff Lawyer