Court erred in ruling against Ottawa's decision to list plastics as toxic, lawyer argues

Government lawyers argued Tuesday that a lower court erred when it ruled that the federal government's decision to list plastics as toxic was unreasonable and unconstitutional.

The federal government's general counsel, Joseph Cheng, led the government's appeal before the Federal Court of Appeal in Ottawa.

In November, Federal Court Justice Angela Furlanetto ruled that Ottawa's decision to classify plastic-manufactured items (PMI) as toxic was too sweeping. Furlanetto concluded that the federal government did not demonstrate that all plastics cause harm and that it was trespassing on provincial jurisdiction.

«PMI was too broad to be listed on the List of Toxic Substances,» Furlanetto wrote in her November judgment. «This breadth renders the Order both unreasonable and unconstitutional.»

The original case was brought by major industry players, including Dow Chemical, Imperial Oil and Nova Chemicals. The Alberta and Saskatchewan governments intervened in the case and backed them.

In 2021, the Liberal government listed all plastic items as toxic under the Canadian Environmental Protection Act. The listing was a precursor to enable the federal environment minister to proceed with regulations to ban single-use plastic items nationally.

The listing could have opened the door to Ottawa banning other plastic items beyond straws, grocery bags, and stir sticks.

Those regulations were part of Environment Canada's plan to address pollution and reduce plastic waste. The Liberal government quickly appealed the November ruling.

The federal government's lawyer said the government needed to list all plastics as toxic because once plastics break down in the environment into tiny pieces, they often become unrecognizable.

Cheng also told the justices