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

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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.

Canada has appealed the decision and a hearing before the Federal Court of Appeal took place in June 2024. A decision is pending.

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

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Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

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Groups  of people who are adversely affected by climate change or the response to it

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Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

This sector involves the wholesale and retail selling of goods.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

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People with different national or cultural traditions from the dominant population

A ban is a legal action that prevents the sale or supply of a product or service, or that recalls a product from the market. Examples are bans on SF6, greenwashing, fossil fuel advertisement or single-use plastics.

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

Activities involving the catching, processing, and selling of fish for food, recreation, and industry.

The activities of industries that transforms raw materials into finished goods through industrial processes.

Actions to adapt human health, healthcare systems and well-being to climate change.

This sector creates and distributes information and entertainment through television, radio, print, and digital platforms.

Financial support to help individuals manage the effects of unexpected events, securing their livelihoods and increasing the resilience of people and businesses to the changing climate. It’s especially vital in developing regions where everyday risks, climate-related weather extremes, or crop failures can push people into poverty. Without insurance, people may have to resort to selling assets or cutting consumption to cope with losses.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

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The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

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People who are less able to respond to the effects of climate change due to having limited financial or physical assets

Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

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This sector involves the distribution, treatment, and conservation of water resources.

This sector provides communication services, software development, and IT solutions.

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

Social inclusion is the process of improving the terms on which individuals and groups take part in society—improving the ability, opportunity, and dignity of those disadvantaged on the basis of their identity.

This sector involves activities to move goods and people, alongside the storage of products.

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

Target

Policy instrument

Risk

Impacted group

Just transition

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance