- A group of Canadian industry leaders launched the Responsible Plastic Use Coalition (RPUC) to pursue legal action against the federal government.
- On May 12, the Canadian government added “plastic manufactured items” to Schedule 1, the List of Toxic Substances, under the Canadian Environmental Protection Act (CEPA). This decision is not based on science, as required by CEPA. Instead, the decision is politically driven. This decision, if allowed to stand, will have far reaching consequences, including unintended consequences, nationally and internationally.
RPUC has commenced an application for judicial review in which it is seeking:
(a) an Order “quashing” (or voiding) the decision to add “Plastic Manufactured Items” to Schedule 1, the List of Toxic Substances, under CEPA 1999;
(b) an Order prohibiting the addition of any substance to Schedule 1, unless it meets both the test for “toxicity” (s. 64), and the definition of “substance” (s. 3(1)(f)); and
(c) an Order requiring the establishment of a Board of Review in order to have a proper and meaningful review conducted by scientists and experts to determine whether there is science to support this decision, and if so, whether that science is sufficient to determine that “plastic manufactured items” are “toxic”.
The application argues that the Order is unconstitutional, unreasonable and outside the enabling authority granted to the government by CEPA for three central reasons.
1. The Order is Unconstitutional
Significant overreach by the federal government
The provinces have jurisdiction over waste management. The federal Order intrudes into provincial jurisdiction. Therefore, it is unconstitutional.
While framed as regulation of “toxic” substances, the Order is really directed at plastic litter, which is a matter of provincial authority.
Plastic waste is the challenge, not plastic
The federal government’s authority to regulate “toxic” substances under CEPA has been very strictly limited by the Supreme Court of Canada.
The addition of “plastic manufactured items” to Schedule 1 does not comply with the requirement that to be added, a description and characterization of a product must be narrow, precise, and carefully crafted. In addition, substances must be demonstrated to pose a significant risk as determined by rigorous scientific assessment.
We all rely on plastic products to sustain everyday life – from eyeglasses, protective equipment, and healthcare products to medical devices, computers and phones.
The Order is extremely broad, unsupported by testing or rigorous scientific assessment, and not limited to substances posing significant risks. It is therefore unconstitutional.
2. The Order Is Outside Cabinet’s Enabling Authority
Under section 90(1) of CEPA 1999, Cabinet must be “satisfied” that a substance is “toxic” before adding it to the List of Toxic Substances.
The Order is outside Cabinet’s enabling authority for the following reasons:
- Items must be added one at a time based on an assessment of whether that item is “toxic.” “Plastic manufactured items” are not a single item. The Order improperly targets a category of products containing tens of thousands of products;
- Plastic manufactured items are not “toxic”. The Literature Review upon which the government relied to add plastic to the toxic substance list does not even consider if plastic is toxic;
- The Order is not based on testing or rigorous scientific assessment demonstrating that plastic is “toxic;”
- Plastic is crucial to our everyday lives, it poses no risk of harm to human health. The Regulatory Impact Analysis Statement (RIAS) relied upon by the government agrees that exposure to macroplastics or microplastics is not of concern to human health; and
- Plastic manufactured items are not the same as plastic litter and should not be treated the same.
This is a slippery slope. In the absence of science to support this decision, the question becomes, if the Order is upheld then what will the government add to the List of Toxic Substances next if a proper scientific determination is not first required?
3. The Order Is Unreasonable and Wrong in Law
The Order is based on conjecture, not evidence
The Order asserts that 1% of the plastic waste stream in Canada becomes litter. This is complete conjecture. Ultimately, the Order primarily relies on anecdotal roadside cleanup data rather than any real data to support this assertion.
The assertion is not based on fact, data, measurement, or scientific study. It is based on estimates, and even these are outdated and do not originate in Canada.
To regulate all “Plastic Manufactured Items” as toxic substances, Cabinet must rely on evidence and sound science to establish that they are, in fact, “toxic.” Cabinet cannot rely on a mere assertion.
Fact-based policy making
CEPA requires decision making to take into account not only the Precautionary Principle, but also the application of the weight of evidence. Although the Precautionary Statement states that where there are threats of serious or irreversible damage, the lack of full scientific certainty shall not be used to postpone cost effective measures to prevent environmental degradation, it applies only where the threat of serious or irreversible damage has been established. It cannot be used in place of evidence, to assert that a problem exists. It is a tool used to manage risk but is not a tool to be used in order to avoid completing or relying upon a bona fide scientific assessment.
Flawed logic leads to unreasonable decisions
The Order is overbroad: it targets all “Plastic Manufactured Items’, when only a handful of items have been tied to any potential risk.