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By an Order Adding a Toxic Substance to
Schedule 1 to the Canadian Environmental Protection
Act, 1999
published in the Canada Gazette on May 12,
2021 (the Order), the federal government added “plastic
manufactured items” to the list of toxic substances under
Schedule 1 of the Canadian Environmental Protection
Act, 1999
 (CEPA). This decision follows an announcement in October 2020 by Environment
and Climate Change Canada (ECCC) of its regulatory intent to add “plastic
manufactured items” to Schedule 1. The change was introduced
as part of the government’s commitment to achieve zero-plastic
waste by 2030 under the Ocean Plastics Charter.

As discussed in further detail below, a group of plastic
manufacturers is now challenging the federal government in court
following the government’s designation of manufactured plastic
items as a “toxic substance” under CEPA. On May 18, 2021,
the Responsible Plastic
Use Coalition
(RPUC or Coalition) filed a notice of application
with the Federal Court alleging that the designation is
unconstitutional and scientifically inaccurate.

There is no doubt that plastics provide unparalleled
functionality and durability across a range of products in our
everyday lives. Given the prevalence of plastics throughout our
economy, the designation of plastic manufactured items as toxic
under CEPA will have potential implications across the supply
chain. In particular, the designation gives the federal government
greater powers to regulate various aspects of the life cycle of
plastic products, with potentially significant penalties for
noncompliance with CEPA provisions.

Proposed Regulatory Approach to Managing Plastic Products

The federal government’s October 2020 consultation paper, Proposed Integrated Management Approach to Plastic
Products to Prevent Waste and Pollution
, provides the basis for
the development of an integrated management approach to plastics,
including proposed actions across the value chain to achieve zero
plastic waste (including a ban on plastic checkout bags, straws,
stir sticks, six-pack rings, cutlery, and food ware made from
hard-to-recycle plastics), as well as systemic improvements to
recover and recycle plastic. The public consultation period for the
paper ended on December 9, 2020 and regulations are expected to be
finalized by the end of 2021.

The federal government has indicated that these proposed
measures will align with similar actions being taken in the
European Union and other countries. In addition, these initiatives
complement Canada’s adoption of the Ocean Plastics Charter in June 2018,
which lays the groundwork for ensuring that plastics are designed
for reuse and recycling. The Charter establishes targets to improve
management of plastics, including:

  • working with industry towards 100% reusable, recyclable, or,
    where viable alternatives do not exist, recoverable, plastics by
    2030;

  • working with industry towards increasing recycled content by at
    least 50% in plastic products where applicable by 2030;

  • working with industry and other levels of government, to reuse
    and/or recycle at least 55% of plastic packaging by 2030 and
    recover 100% of all plastics by 2040; and

  • working with industry towards reducing the use of microbeads in
    personal care products, and addressing other sources of
    microplastics.

In addition, the federal government’s efforts to reduce
plastic pollution includes ongoing work through the CCME to
develop an action plan to implement the Canada-wide 2018 Strategy on Zero Plastic Waste, which
articulates a vision for a circular economy for plastics, and a
two-phase action plan (more information available here: Phase 1 and Phase 2) that is being jointly
implemented.

The Addition of Plastic Manufactured Items to Schedule 1

The addition of “plastic manufactured items” to the
list of toxic substances under Schedule 1 of CEPA forms part of the
federal government’s strategy to achieve zero-plastic waste by
2030. Following the October 2020 announcement of the federal
government’s intent to add plastic manufactured items to
Schedule 1, at least
 60 notices of objection
 were submitted by industry
in relation to the proposed order. ECCC has published a summary table of public
comments
 received on the proposed order.

Under section 64 of CEPA, toxic substances are generally defined
as substances that (i) have, or may have, a harmful effect on the
environment or constitute, or (ii) may constitute, a danger to the
environment or human health. Section 90(1) of CEPA enables
Ottawa to regulate substances it deems to be “toxic” by
adding them to the Schedule 1 List of Toxic Substances. The Order
defines “plastic manufactured items” as “any items
made of plastic formed into a specific physical shape or design
during manufacture, and have, for their intended use, a function or
functions dependent in whole or in part on their shape or
design.” They can include final products, as well as
components of products. This new addition is wider in scope than
substances currently listed under Schedule 1, such as
asbestos and lead.

With the Schedule 1 designation, Ottawa can manage the production and sale of items
containing plastic, such as water bottles and phone parts. The
government may regulate the quantity of plastic items produced in
Canada, and how these products are to be processed, exported,
stored, transported, and packaged. Although the designation does
not impose new costs or requirements on manufacturers, the federal
government’s Regulatory Impact Analysis Statement indicates
that future measures made as a result of the designation may result
in “incremental costs.”

According to the government’s
Science Assessment of Plastic Pollution
, 1% all of plastic
waste enters the Canadian environment as pollution. In 2016, this
amounted to 29,000 tonnes of plastic pollution. According to the
Regulatory Impact Analysis Statement, the CEPA designation is
intended to “manage the potential ecological risks associated
with those [plastic manufactured] items becoming plastic
pollution.”

Unreasonable and Unconstitutional?

Six days after the designation, a group of 27 plastic
manufacturers, recyclers, and distributers filed a notice of
application with the Federal Court. The Coalition bases their
application for judicial review of the Order on three grounds:

  • Unconstitutional: The Coalition argues that
    the designation is contrary to federal criminal power, as
    “plastic manufactured items” is an “impermissibly
    broad term” that lacks the precision necessary for criminal
    prohibitions.1 The overbroad Order, they claim,
    “captures thousands of products essential to modern living,
    from medical equipment to food packaging.”.2 Additionally, the
    Coalition contends that the designation intrudes on provincial
    jurisdiction over waste management under Section 92 of the
    Constitution.3

  • Unrelated: The applicants claim that the
    category of “plastic manufactured items” fails to meet
    CEPA’s definitions of “substance” and
    “toxic.” The statutory definition of
    “substance” is limited to singular items, they assert,
    rather than a broad descriptive category. Moreover, the Coalition
    asserts, beyond ingesting or being entangled in plastic products,
    plastic items pose insufficient risks to the environment.4 As
    stated, “litter can be problematic, but does not satisfy the
    threshold of ‘toxicity’.”5

  • Unreasonable: Finally, the Coalition asserts
    that the designation is based on conjecture, not evidence. For
    example, they claim that there is limited data to establish that 1%
    of all plastic waste becomes pollution.6

At the time of writing, the federal government has not filed a
response to the notice.

Federal Jurisdiction Over Plastic Waste?

Plastic products and waste are subject to a patchwork of federal
and provincial regulation. Under CEPA, Ottawa maintains the
authority to regulate certain plastic products, and prohibit those
substances its deems “toxic”.7 In 2017, for
example, the federal government banned the manufacture and sale of all
toiletries that contain plastic microbeads.

The Order enables federal regulation of the entire life cycle of
plastic products, from production to disposal. The designation
therefore marks a potential foray into the provincial jurisdiction
of waste management.

As stated in the RPUC notice, the federal government may claim
jurisdiction over plastic waste under federal criminal powers. In
R v. Hydro-Quebec, a narrow majority of the Supreme Court
of Canada (SCC) upheld Parliament’s authority to regulate toxic
substances under the criminal head. The SCC noted the importance of
avoiding broad prohibitions when exercising this power and
carefully targeting specific substances.8 RPUC contends that
the May 12 designation does not meet this standard of
specificity.

Alternatively, one could argue that plastic pollution can be
characterized as a “matter of national concern” that
warrants federal jurisdiction. Last March, the SCC validated the
federal government’s authority to regulate greenhouse gas (GHG)
emissions under the “national concern branch” of the
“peace, order, and good government” power.

Is the Designation Reasonable & Scientific?

The federal government has wide discretion in defining what
constitutes a “toxic substance” under CEPA.9 The
SCC in R v. Hydro Quebec added certain limitations to this
license. They held that the Act may only apply to a
“restricted number of substances.”10 Additionally,
“toxic” is to be defined “in the ordinary
sense” and items must be comparable to substances currently
listed under Schedule 1.11

Contrary to past designations, ECCC appears to define
“plastic manufactured items” as products that are
capable of being toxic, rather than substances that are
inherently toxic. Products that are commonly considered
harmless, such as a recently purchased toy, are designated
“toxic” as they have the potential to be plastic
pollution.

As stated in the Coalition’s notice, the government does not
provide a scientific explanation as to why all plastic items are
environmentally harmful. Rather than “quantify the risks of
plastic pollution on the environment,” the federal
government’s scientific assessment of plastic pollution seeks
to “guide future scientific and regulatory activities.”12
Further, the Order does not explain why all “plastic
manufactured items,” regardless of their condition or risk,
must be regulated.

Looking Ahead to a Zero-Plastic Waste Future

The designation of manufactured plastic items as toxic is the
federal government’s proclaimed “first step” towards
a zero-plastic waste future. Further regulatory changes to
Canada’s $35 billion plastic industry are likely. The RPUC
litigation highlights significant questions regarding jurisdiction,
scope of legislation, and scientific standards that will continue
to shape the transition to a more circular economy for
plastics.

Footnotes

1.
Responsible Plastic Use Coalition v. The Minister of the
Environment and Climate Change,
Notice of Application,
T-824-21-ID 1, at para 44.

2.
Ibid, at para 47.

3.
Ibid, at paras 38-39.

4.
Ibid, at paras 74-75, 78.

5.
Ibid, at para 70.

6.
Ibid, at para 113.

7. R
v. Hydro Quebec
, [1997] 3 S.C.R. 213 (“Hydro
Quebec
“), at para 147.

8.
Ibid.

9.
Castrilli, Joseph and Fe de Leon, “Blog: Control of Toxic
Substances at the Crossroads in Canada” (17 July 2018) (https://cela.ca/control-of-toxic-substances-at-the-crossroads-in-canada/).

10.
Hydro Quebec, at para 146.

11.
Hydro Quebec, at para 145.

12.
Science Assessment of Plastic Pollution
, at p
8.

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