18 Nov Maybe not the last (plastic) straw: Federal Court quashes federal order aimed at regulating “Plastic Manufactured Items”
(Photo: Horia Varlan from Bucharest, Romania, CC BY 2.0)
Attempts by the federal government to tackle plastic pollution suffered a setback yesterday as the Federal Court of Canada quashed the federal Ministerial Order designating “Plastic Manufactured Items” (PMI) as a toxic substance under the Canadian Environmental Protection Act, 1999.
In brief, the court found that the order that enabled the federal regulation of plastics was so broad that it was beyond the federal jurisdiction claimed under its constitutional criminal law power. The court noted “the substance (PMI) is a broad category of items that include items with no reasonable apprehension of environmental harm”. The court concludes that “[t]he broad and all-encompassing nature of the category of PMI poses a threat to the balance of federalism as it does not restrict regulation to only those PMI that truly have the potential to cause harm to the environment.”
Further the court found that the decision by the Minister to not refer the matter to the Board of Review under the legislation was unreasonable on the grounds that it lacked transparency and failed to adequately address concerns raised by the applicant around the sufficiency of science.
The decision adds to the jurisprudence around environmental regulation and the Canadian Constitution, which the ELC recently published a series of reports on, including “Drowning in Plastic: Toxins and the Constitution”. (For our other reports click here)
Insofar as the federal government relies on its criminal law power for various environmental matters (from greenhouse gases to species at risk) the decision is a clear reminder that the federal government must be transparent and scientifically sound in its assessment of harms that it seeks to regulate.
Time will tell if the decision gets appealed.
The rest of this blog discusses the constitutional framing, the government’s actions to curb plastic pollution, and summarizes the decision in greater detail.
A Brief Background to the Federal Government’s Jurisdiction over Toxic Substances
The Supreme Court of Canada (“SCC”) decision in R v Hydro-Quebec is the leading decision on the federal jurisdiction to regulate toxic substances under the Canadian Environmental Protection Act (“CEPA”). Specifically, this decision involved a challenge to the Chlorobiphenyls Interim Order which was an order adopted under the previous Canadian Environmental Protection Act. While, the specific Act has since been updated, many of the same principles remain and the focus of the decision, specifically whether the federal government can rely on the criminal law power found in section 91(27) of the Constitution Act, 1867 to regulate toxic substances still applies.
The majority in this case held that the “impugned provisions are valid legislation under the criminal law power.” In coming to this conclusion, Justice La Forest began with a pith and substance review, finding that the criminal law power assigned to the federal government is “the criminal law in its widest sense.” In Hydro-Quebec, the SCC found there is “no doubt that the protection of a clean environment is a public purpose within Rand J.’s formulation in the Margarine Reference … sufficient to support a criminal prohibition” or “to put it another way, pollution is an ‘evil’ that Parliament can legitimately seek to suppress.” Despite this, the Court placed certain limits on this power including that the criminal law power cannot be used to colourably invade areas of provincial legislative competence and that some legitimate public purpose must underlie the prohibition. In the end, the Court concluded “that Parliament may validly enact prohibitions under its criminal law power against specific acts for the purpose of preventing pollution or, to put it in other terms, causing the entry into the environment of certain toxic substances.” The majority decision in Hydro-Quebec was reaffirmed in the 2020 SCC decision Reference re Genetic Non-Discrimination Act, in which the Court reiterated that the criminal law power could be used to manage “the harmful effects of toxic substances on the environment.” These are both important jurisprudence to the case at bar; however, as we note there are some significant distinctions.
A Brief Background to the Federal Government’s Actions on Plastic
This decision concerns primarily the federal government’s move to add ‘plastic manufactured items’ (“PMI”) to the Schedule 1 List of Toxic Substances in the Canadian Environmental Protection Act. In support of this determination, the federal government released the ‘Science Assessment of Plastic Pollution’ (the “Science Assessment”) in October 2020. The Science Assessment provided evidence of the toxicity of plastics – at both the macro and micro level – including impacts on human and environmental health. Notably, for the purposes of the federal court decision below, the study concluded that the known human health effects from ingesting microplastics are limited but suggests the importance of further research. On the other hand, evidence is cited regarding the harm to environmental health from both macroplastics (entanglement of animals in macroplastics such as plastic rope and netting in the water or ingestion) and microplastics (ingestion and effects on gene expression and individual organism death).
A judicial review application was filed in response to these measures and is the subject of the federal court’s attention.
The Court’s Decision
This matter was kicked off when the applicants (the Responsible Plastic Use Coalition, Dow Chemical Canada, Imperial oil, and Nova Chemicals) asserted that the Order Adding a Toxic Substance, the PMI, to Schedule 1 to the Canadian Environmental Protection Act, 1999 (the “Order”) “was unreasonable as it was not a proper use of the Administrator-in-Council’s/Governor-in-Council’s [GIC’s] authority and does not comply with the statutory scheme under CEPA.” Specific assertions included that the “the listing for PMI is too broad, that PMI is not a “substance” or “class of substances” that could fall under the List of Toxic Substances in Schedule 1 of CEPA, and that the proper scientific analysis and risk assessments were not completed to demonstrate that PMI are toxic.” The second issue raised by the applicants was that the “decision of the Minister of Environment and Climate Change [MECC] to deny requests for a Board of Review to assess the alleged risks associated with PMI, and its proposed addition to Schedule 1 [BOR Refusal] was unreasonable.” Both issues are considered by the Court.
Interveners in the matter included the Attorneys General of Alberta and Saskatchewan who both argued that the Order was unconstitutional as it fell outside the proper scope of the federal criminal law power.
As such, the main issues before the Court were as follows:
- Is the Order unreasonable?
- Was the decision to refuse a Board of Review unreasonable?
- Is the Order unconstitutional as being outside the federal Criminal Law Power? and
- Can the Court consider POGG and if so, is the Order unconstitutional for being contrary to POGG?
The standard of review for the first two issues is that of reasonableness and for constitutional challenges and questions relating to the division of powers, an exception to reasonableness applies and the standard of review is correctness.
Is the Order unreasonable?
The first issue before the Court was to determine whether the Order was an unreasonable step for the Governor in Council to take. To determine reasonableness, the Court begins with a review of the enabling legislation, the CEPA. The Court finds that the scheme that applied in this case was a two-step process, “first the Governor in Council (“GIC”) must determine whether a substance is toxic such that it can be listed on Schedule 1; second, and only after a substance is listed, does the GIC have broad authority to regulate the substance.”
With regard to the first step, the applicants argue that PMI are too broad a category and thus do not meet the requirements of section 90(1) of the CEPA which set out how to determine if a substance or class of substances is properly considered to be toxic. The respondent, disagrees, arguing that it is properly within the Governor in Council’s authority to add PMI to Schedule 1 and was a reasonable decision within the bounds of the CEPA. One of the main issues for the Court to consider is whether PMI is properly considered to be a ‘substance’ within the Act’s definition in contrast with the applicants’ assertion that it is more properly a broad category of items, some of which have not been proven to be toxic and further that the CEPA definition of substance only contemplates single items. Canada contends that while the PMI is not a class of substances it does properly fall within the definition of substance which is intended by the Act to be plural.
The Court considers the definition as set out in the CEPA and holds that while “PMI as a category appears broader than the definition of substance in paragraph 3(1)(f) and the existing substances that appear on Schedule 1, on its own this is insufficient, in my view, to render the Order unreasonable.” Instead the Court, finds that the second requirement of section 90(1), specifically whether the PMI satisfies the requirements for toxicity, must be considered “before any determination can be made as to whether the Order is contrary to subsection 90(1) and to the scheme of CEPA.” To do this, the Court must start with the definition of a toxic substance as it is set out in section 64 of the CEPA:
“a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions that (a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity; (b) constitute or may constitute a danger to the environment on which life depends; or (c) constitute or may constitute a danger in Canada to human life or health.”
The basis of a finding of toxicity in this case comes from the Science Assessment and focuses on part (a) [have or may have an immediate or long-term harmful effect on the environment or its biological diversity] of section 64. In their argument the applicants contend that the Government through the Science Assessment “had no evidentiary foundation for concluding that all PMI are toxic” and that the Government “failed to characterize exposure levels and to conduct a risk assessment to evaluate toxicity of all PMI.” The respondents argue that this standard was impractical and that there “are limitations to what can be tested when a substance is not a chemical.”  This is even acknowledged within the Assessment which states that it is “not intended as a substitute for chemical risk assessment.”
In deciding on the proper finding of toxicity, the Court begins by highlighting that the “basic principle of toxicity for chemicals is that all chemical substances have the potential to be toxic; however, for a chemical substance to be toxic it must be administered to an organism or enter the environment at a rate (or dose) that causes a high enough concentration to trigger a harmful effect.” They do not find that this bar has been met and instead find that in this case, “all PMI are identified as toxic because they are made of plastic and because all plastic is deemed to have the potential to become plastic pollution” despite not demonstrating harm. Justice Furlanetto finds that this does not take into account the “extreme variability” of plastic items and that “based on the available information and scientific assessment, the Governor in Council could not have been satisfied that all PMI are toxic.” This meant that the Governor in Council acted outside their authority in listing the broad category of PMI in Schedule 1 and resulted in a finding that the Order was unreasonable.
Was the Decision to refuse a Board of Review unreasonable under section 333(1) of CEPA?
In determining this matter, the Court begins with the acknowledgment that the CEPA “does not set any criteria for determining whether to establish a Board of Review (“BOR”). This is a discretionary determination of the Minister which has been contrasted with other circumstances in which the Minister must establish a BOR, such as when the Minister decides not to list a substance as toxic in the face of a recommendation to list the substance as toxic in the final screening assessment.”
In this instance and when making the decision not to establish a BOR after being requested, the Minister first assessed “whether the information provided would lead to a change in the findings of the Science Assessment regarding the ability of macroplastics to cause harm to the environment”, finding that it did not and then “elicited a review by neutral departmental officials who agreed that a sound scientific process had been respected and the conclusions of the first review were reasonable.” However, the Court found that this was insufficient as the Minister did not consider the issue of the breadth of the Order and the PMI as a category and that these should have been addressed before coming to a conclusion about the BOR. The Court found that this “lack of transparency and completeness renders the BOR Decision unreasonable.”
Was the Order unconstitutional and ultra vires the federal criminal law power?
In order to be a valid law under the criminal law power, a provision must contain three elements:
- a criminal law purpose;
- a prohibition; and
- a penalty.
We know from the decision in Hydro-Quebec, that protection of the environment against toxic substances is a legitimate public objective under the criminal law power and is sufficient to support a criminal prohibition, which the Court in this decision reiterates. This concept is not challenged by the applicants and instead they argue that, in fact, the “Order does not seek to restrict toxic substances, but rather to manage plastics in the economy” and that “the breadth of the Order extends outside the guardrails established in Hydro-Quebec and the constitutional limitations intended by the underlying statutory scheme.”
To evaluate the constitutionality of the Order, the Court begins with an analysis of the pith and substance, finding that “the dominant purpose or pith and substance of the Order was to list PMI on the List of Toxic Substances so that PMI could be regulated to manage the potential environmental harm associated with their becoming plastic pollution.” From there, the Court moves on to determine whether the Order, as defined by its pith and substance, properly falls within the criminal law power.
To do this, the Court makes two initial conclusions, the first is that the “machinery of criminal law” cannot extend power over something that would otherwise not fall within Parliament’s jurisdiction. The second, is that an activity must be harmful or dangerous before Parliament can assume control over the same. In Hydro-Quebec, the idea of the protection of the environment became a criminal law purpose when it was connected to a specific harm, which the applicants argued does not apply in this case as PMI do not pose environmental harm as a broad group and the Order is not limited to those plastics that have been found to pose such a harm.
Canada argued that the breadth of the PMI Order is valid under the CEPA and that “sweeping delegation of regulation-making power is constitutionally valid as long as there are constitutional and administrative constraints on the delegated power enabled by order.” They also contend that the Order would not take away from any constitutional and administrative constraints on a later regulation, and any “regulation enacted in respect of PMI will be constitutionally valid only insofar as the regulation itself furthers a valid criminal law purpose.” This is not sufficient for the Court who find that we cannot take a wait and see approach for the regulation of these substances.
In the end, the Court is primarily concerned that the category of PMI does not properly show harm and does not it fall properly within the CEPA which is intended to weed out the harmful substances from the vast number of ‘potentially harmful.’ As such, it does not satisfy the test for the criminal law power. The Court goes so far as to state that the PMI “is a broad category of items that include items with no reasonable apprehension of environmental harm.” The conclusion is thus that the Order is ultra vires the criminal law power.
Can the Court consider POGG and if so, is the Order unconstitutional for falling outside the POGG regime?
The final issue before the Court is whether it can consider the Order as a valid exercise of the federal government’s jurisdiction under the peace, order, and good government power (“POGG”). The POGG power is derived from section 91 of the Constitution Act, 1867 and assigns the federal government with residual power applying to matters “not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.” In this instance, the primary issue is that POGG was not raised by the parties to matter and instead was brought forward by an intervenor. The Court concludes that because it was not an original issue, it is not justiciable. They go further; however, to find that even if it could be raised by an intervener, it would not be appropriate “as the listing of PMI does not have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern.”
Therefore, the final issue is answered in the negative with the finding that the Order could not be saved by the federal POGG power.
In the end, and based off these findings, the Court concluded that the Order and the listing of PMI on Schedule 1 of the List of Toxic Substances was both unreasonable and unconstitutional resulting in the quashing of the Order and the declaration that the Order was invalid and unlawful with retroactive effect.
The issue of ‘harm’ and whether the category of PMI was based on sufficient evidence of harmful effects on the environment is a major linchpin in this decision. While the federal government argued that the inclusion of single types of plastic was unreasonable and would result in significant delays, the nature of the federal criminal law jurisdiction requires a more cautious approach, grounded clearly and transparently in averting scientifically established harms. Following the release of this decision, the federal Minister of the Environment has announced they are considering an appeal and we will have to wait for the next steps in this process.
 Responsible Plastic Use Coalition v Canada (Environment and Climate Change) 2023 FC 1511 at para 184.
 R v Hydro-Quebec,  3 SCR 213.
 Ibid at para 110.
 Ibid at paras 112 & 119.
 Ibid at para 123.
 Ibid at para 121.
 Ibid at para 130.
 Reference re Genetic Non-Discrimination Act, 2020 SCC 17 at para 266.
 Canadian Environmental Protection Act, 1999, SC 1999, c 33 [CEPA]; Responsible Plastic Use Coalition, supra note 1 at para 1.
 Environment and Climate Change Canada & Health Canada, “Science Assessment of Plastic Pollution” (October 2020) Government of Canada.
 Ibid at 81.
 Ibid at 50-57.
 Responsible Plastic Use Coalition, supra note 1 at para 3.
 Ibid at para 3.
 Ibid at para 4.
 Ibid at para 5.
 Ibid at para 47.
 Ibid at paras 48-49 & 51.
 Ibid at para 64.
 Ibid at paras 65 & 67.
 Ibid at para 67.
 Ibid at paras 70 & 71.
 Ibid at paras 72 & 73.
 Ibid at para 80.
 Ibid at para 80.
 Ibid at para 81; CEPA, supra note 9, s 64.
 Responsible Plastic Use Coalition, supra note 1 at para 84.
 Ibid at para 85.
 Ibid at para 98.
 Ibid at para 99.
 Ibid at para 113.
 Ibid at para 113.
 Ibid at paras 114 & 116.
 Ibid at para 119.
 Ibid at para 121.
 Ibid at para 125.
 Ibid at para 136.
 Ibid at para 136.
 Ibid at para 138.
 Ibid at para 139.
 Ibid at para 141.
 Ibid at para 166.
 Ibid at para 167.
 Ibid at para 168.
 Ibid at para 169.
 Ibid at paras 170 & 171.
 Ibid at para 173.
 Ibid at para 174.
 Ibid at para 175.
 Ibid at paras 179 & 181.
 Ibid at para 184.
 Ibid at para 186.
 Constitution Act, 1867 (UK), 30 & 32 Vict, c 3, reprinted in RSC 1985, App II, No 5, s 91.
 Responsible Plastic Use Coalition, supra note 1 at para 187.
 Ibid at para 190.
 Ibid at para 190.
 Ibid at paras 193 & 205.Share this: