Commentary: Listing Plastics as Toxic under the Canadian Environmental Protection Act

On October 7, Environment and Climate Change Canada (ECCC) announced a preliminary list of single-use plastic items the federal government seeks to ban by next year. This list includes plastic bags, stir sticks, six-pack rings, cutlery, straws and food service ware made from hard-to-recycle plastic (particularly polystyrene). These items are the subject of a proposed ban because they are environmentally problematic, difficult to recycle and have readily available alternatives.

The Minister also announced the government’s plan to designate plastic a toxic substance and to order that it be added to the List of Toxic Substances in Schedule 1 of the Canadian Environmental Protection Act, 1999 (the “CEPA”). This has several implications for future regulations that we can expect to see from the federal government on plastics.

What does the federal government’s use of CEPA mean?

Under CEPA, a substance can be listed as toxic if it is entering or may enter the environment in a quantity or concentration or under conditions that have or may have an immediate or long-term harmful effect on the environment or biodiversity, pose a danger to the environment on which life depends, or a danger to human life and health in Canada. A designation of a substance as toxic under CEPA is not permanent – if in the future the government is satisfied that preventive or control actions relating to that substance are no longer necessary, it can make an order to delete the substance from the list at Schedule 1 and repeal any regulations passed with respect to the substance.

In their Draft Science Assessment released late January this year, the ECCC found that macroplastics (plastics made of particles greater than five millimetres) cause harm to the environment. It did not make a similar finding for microplastics. This gives the government the green light to list plastics that result in macroplastics as toxic under CEPA. Microplastics’ long term potential effects are not yet clear since studies have revealed conflicting results. It should be noted that the government has released a final draft of this Science Assessment that should be reviewed for updated findings.

CEPA is an interesting instrument for the federal government to use at this time. Its use may avoid challenges that the federal government could face if it enacted separate legislation to regulate plastics with environmental protection aims in mind. Canadian courts have held that the protection of the environment under CEPA, through prohibitions against toxic substances, constitutes a wholly legitimate public objective in the exercise of the criminal law power. This power belongs to the federal government and does not interfere with provincial legislative powers to regulate and control pollution of the environment.

As a result, by using the CEPA the federal government might avoid, or more successfully defeat, a legal challenge that it is exceeding its constitutional grant of powers by enacting environmental laws that are more properly within the jurisdiction of the provinces. These challenges should be expected. The Supreme Court of Canada recently heard appeals brought by Ontario, Saskatchewan and Alberta on whether the federal government’s action in passing its own carbon pollution pricing system (the “federal backstop”) under the Greenhouse Gas Pollution Pricing Act in provinces that failed to implement sufficiently stringent carbon pricing systems was authorized by the federal government’s constitutional grant of powers. Moreover, waste management falls typically within the jurisdiction of provinces or territories and a designation of plastics as toxic under CEPA could affect the provinces’ or territories’ exercise of powers.

Regulations that can be implemented under s. 93(1) of CEPA to address toxic substances could allow the federal government to take the following actions, among many others, to regulate plastics:

· Regulating the quantity or concentration of plastics that may enter the environment either alone or in combination with any other substance from any source or type of source;

· Placing requirements on the commercial, manufacturing or processing activity in the course of which the substance may be released;

· Regulating the purposes for which plastics or products containing plastics may be imported, manufactured, processed, used, offered for sale or sold;

· Regulating the quantities or concentrations of plastics that can be imported, and/or the countries from or to which the substance may be imported or exported;

· Regulating the manner, conditions or purposes under which the substance or a product containing the substance can be advertised or offered for sale;

· Regulating the packaging and labelling of the substance or products containing the substance; or

· Regulating the manner, conditions, places and methods of disposal of the substance or a product containing it, and the standards for the construction, maintenance and inspection of disposal sites; etc.

These powers hint at the possibility that the regulation of plastics under CEPA could result in some of the same actions in Canada as are being advanced in the EU to address single-use plastics. The recent EU directive on single-use plastics not only introduced bans on a number of plastic items (a similar list to the ECCC’s), but also requires Member States to impose product requirements on labelling, design changes, recycled content standards, awareness raising or extended producer responsibility.

 

The above is commentary and does not constitute the provision of legal advice. Should you require legal advice on this issue or others, contact Denisa Mertiri at denisa@greenearthstrategy.ca