Ottawa says industry’s challenge of single-use plastics ban will have no ‘practical effect’

The federal government says an upcoming court decision related to its restrictions on single-use plastics will have no "practical effect" because the legal challenge launched by the plastics industry is now "moot."

The federal government is making the argument as it waits for the Federal Court to rule on a case that could undermine Ottawa's ability to restrict the use of single-use plastic items like straws, grocery bags and stir sticks.

Earlier this year, the court heard a challenge launched by major industrial players in plastics — including Dow Chemical, Imperial Oil and Nova Chemicals — of federal regulations on single-use plastics. A judge is expected to decide by the end of the year whether Ottawa was justified in listing plastic products as toxic under the Canadian Environmental Protection Act.

The plastics lobby argues the government did not follow the proper steps to list plastic products as toxic — a key step that allowed Ottawa to proceed with a ban on some single-use plastic items.

Environment and Climate Change Canada's Single-use Plastics Prohibition Regulations will prohibit the sale of plastic checkout bags, cutlery, food service ware, stir sticks and straws in Canada after December 20.

Those regulations are part of the department's plan to address pollution and prevent plastic waste.

The department said 15 billion single-use plastic checkout bags were sold in Canada in 2019 and close 57 million straws are used daily.

In a submission to the court filed earlier this month, the federal government argued that even if the Federal Court is inclined to side with the industry, these items would still be listed as toxic under the law because that measure is now backed by Parliament.

"The matter is now moot because the Court's decision would have no practical effect with respect to the dispute in this application," says the submission from the Attorney General of Canada.

Bill S-5 became law in June after receiving royal assent. It updates the Canadian Environmental Protection Act, enshrining the right to a healthy environment in law and adding plastic items to the law's list of toxic substances.

"The Royal Assent of the act renders this application moot," says the federal government's court submission. "This is because the effect of Royal Assent is to remove the live controversy in this application."

Lindsay Beck, a lawyer with the environmental law charity Ecojustice (which is intervening in the case), said the government is arguing it has legislative cover to justify limiting plastic waste.

"In some ways, it's a big update to the case, but in other ways, it's quite technical, and it may not have huge significance in the end," Beck told CBC News, adding a judge could still upend Ottawa's plastic agenda.

The plastics companies challenging the federal government argue Ottawa is overstepping its jurisdiction by regulating waste management, typically an area of provincial jurisdiction.

"Parliament can't act outside constitutional bounds," Beck said. "So it may still be open to the court to say, 'Well, this isn't within the federal government's jurisdiction.'"

A 'constitutional question'

In its response to the government's latest submission, the industry argues it still has a case because the federal government is acting beyond its constitutional authority.

The new legislation "does not change the constitutional question at the heart of this application," the manufacturers' submission states.

The federal government, meanwhile, argues that it is empowered to regulate plastic waste because it is a pressing environmental threat that crosses provincial borders.

"The United Nations has called plastic pollution the second biggest environmental crisis of our time after climate change," Beck said.

The government of Alberta, which is also intervening in the case, said it "firmly objected" to listing plastic items as toxic. In a statement, it called on Ottawa to "stop ignoring Alberta-made innovations" like a compostable grocery shopping bag that will be banned under the upcoming single-use bag prohibition.

"We are strong supporters of reducing plastic waste, but the federal government's current approach is heavy-handed, unreasonable," said Ryan Fournier, press secretary to Alberta Environment Minister Rebecca Schulz.