Provinces Intervene in Court Challenge of Feds’ Single-Use Plastic Ban

A woman leaves a grocery store on May 15, 2015 in Montreal. (Ryan Remiorz/The Canadian Press)

Saskatchewan and Alberta’s governments have intervened in a court challenge of the federal government’s decision to declare single-use plastics as “toxic substances” and ban them by 2025.

The challenge was heard in the Federal Court of Canada in Toronto from March 7 to 9, brought by the Responsible Plastic Use Coalition, a group of plastic manufacturers that includes Dow Chemicals Canada, Imperial Oil, and Nova Chemicals. The court’s decision will be issued at a future date.

The ban started on Dec. 20, 2022, when companies were barred from producing or importing plastic checkout bags, cutlery, stir sticks, straws, and takeout containers in Canada. By December 2023, it will be illegal to sell these plastic products.

As of June 2023, the manufacturing and import ban will also apply to plastic rings used with six-packs of pop and canned drinks, with sales of the plastic banned one year following that.

The Federal Courts Act allows provinces, under federal legislation, to automatically have standing to intervene on constitutional questions, without the need for permission of the court to be granted intervenor status. Both Alberta and Saskatchewan made submissions to the court on the side of the Responsible Plastic Use Coalition.

Saskatchewan

In a March 7 news release, the Saskatchewan government said Ottawa overstepped when it used the Canadian Environmental Protection Act to enact the plastics ban.

“It is our position that the federal government cannot simply declare plastics to be under its environmental jurisdiction,” said Saskatchewan Justice Minister and Attorney General Bronwyn Eyre in the statement.

“Under the constitutional division of powers, it is well-established that provinces have exclusive jurisdiction to regulate specific industries.”

Allowing the federal government to implement a competing regulatory framework would “create duplication, confusion, and economic harm,” Eyre added.

Saskatchewan said it would provide arguments on the constitutional division of powers and said “federal jurisdiction over environmental protection is limited to established toxic substances, such as lead, arsenic, mercury, and dangerous industrial chemicals.”

The province said it would also argue that the federal government’s declaration that all “plastic manufactured items” qualify as “toxic” is not supported under federal criminal law powers.

Alberta

Alberta also made submissions in the case, arguing the federal government had intruded into provincial jurisdiction in violation of the constitution’s division of powers.

In a news release on Sept. 8, 2022, when Alberta announced it would intervene, Minister of Justice Tyler Shandro said then that the federal government’s action was a “direct threat” to Alberta’s economy and would have “a negative impact on Alberta’s petrochemical industry.”

“The federal government’s action has already negatively affected investment in the province’s petrochemical sector. An analysis by the Ministry of Energy indicated that more than $30 billion is at risk because of the ’toxic' designation,” said the province.

Plastic Impact

There is considerable debate amongst the parties about the environmental impact of plastic production and use.

Environmental Defence, a group against plastic use, said in a Feb. 23 news release that “Canada’s biggest plastic producers are taking over a Toronto courtroom in a desperate effort to convince a judge that plastic pollution is not the threat to the environment, wildlife and human health that we all know it is.”

The group, along with Oceana Canada and Animal Justice, are intervenors in the case, supporting the federal government’s ban on plastics.

Elmira Aliakbari, director of natural resources studies at the Fraser Institute, and Julio Mejia, junior policy analyst, wrote on March 23 in an editorial posted on the organization’s website, which was printed in the National Post, that Canada only contributes an estimated 0.02 percent of all plastic in the world’s oceans.

Asia and Africa account for nearly 90 percent of ocean plastic, and five countries—Philippines, India, Malaysia, China, and Indonesia—account for the majority of the plastic pollution in the world’s oceans, said the authors.

“Despite claims from Ottawa, Canada doesn’t have a plastic waste crisis. According to the federal government’s own report, 99 per cent of the country’s plastic waste is already disposed of safely through recycling, incinerating and environmentally-friendly landfills,” the article said.

In an October 2020 government report, Environment and Climate Change Canada noted that “In Canada, it is estimated that 1% of plastic waste enters the environment.”

‘Increase Waste’

According to the Fraser Institute, the federal government’s own analysis acknowledged that banning single-use plastics “will actually increase waste generation rather than reduce it.”

The group said the federal government’s report indicated that while the ban will remove 1.5 million tonnes of plastics from 2023 to 2032, it will almost double that tonnage in substitutes including paper, wood, and aluminum over the same period.

“In other words, the ban will increase, not decrease, the amount of net garbage in Canada,” said the article.

This is the second lawsuit brought against the plastics ban. A previous action filed in 2021 is still before the court. That lawsuit challenged the government’s decision to list plastic pollution as “toxic” under environmental protection legislation.

The Canadian Press contributed to this report.