Responsible Plastic Use Coalition v. Canada (Environment and Climate Change)

A not-for-profit corporation comprised of companies from the plastic industry who conduct business in Canada, two chemical and plastic resin manufacturers and distributors, and a petrochemical manufacturer brought an application for judicial review of the federal cabinet’s order relating to the addition of “Plastic Manufactured Items” (PMI) to the list of toxic substances in Schedule 1 of the Canadian Environmental Protection, 1999 (CEPA) (the “Order”). The Applicants argued that the Order itself was unreasonable and not a proper use of the federal cabinet’s authority, and that the Order was unconstitutional and outside the federal criminal law power under Canada’s Constitution. The Applicants argued that the decision of the federal Minister of Environment and Climate Change to deny requests to assess the alleged risks associated with PMI and its addition to Schedule 1 of CEPA was unreasonable. The Federal Court agreed with the Applicants and held that it was both unreasonable and unconstitutional to add PMI to Schedule 1 of CEPA, and the decision of the Minister of the Environment and Climate Change to refuse requests to assess the alleged risks associated with PMI and its addition to CEPA was also unreasonable. On the reasonableness of the Order, the Court found that the Order was unreasonable because Cabinet could not have been satisfied, as a matter of fact, that all PMI were toxic within the meaning of CEPA. The Court concluded that the Order was overly broad and outside the authority of Cabinet, as it did not meet the requirements of fitting within the definition of “substance” in CEPA and being toxic in “the real sense” as interpreted by the Supreme Court of Canada in a prior decision. On the reasonableness of the decision to refuse a review, the Court found that when the Order was published in the Canada Gazette, 52 requests were made for a review, and 62 notices of objection were filed arguing that the assessment of plastic pollution did not provide sufficient evidence that all PMI covered by the Order were toxic. However, the Minister of the Environment and Climate Change’s response to the objections did not respond to these arguments and the failure to address this arguments in the response rendered their decision to refuse a review unreasonable due to a lack of transparency and completeness. On the constitutionality of the Order, the Court found that the Order’s purpose was to regulate PMI as toxic substances to manage potential environmental harm with their becoming plastic pollution, but this purpose lacked a criminal law purpose as required to be upheld as constitutional under the federal criminal power. The Court also found that the Order could not be upheld under the national concern doctrine of the federal power of peace, order, and good government due to its lack of singleness, distinctiveness, and indivisibility from matters of provincial concern. The federal Minister of Environment and Climate Change has indicated that the federal government will be appealing the Court’s decision.