Audit, Compliance and Risk Blog

Canada: Federal Court rejects listing of Plastic Manufactured Items as “Toxic Substances” under Canadian Environmental Protection Act

Posted by Jon Elliott on Mon, Feb 19, 2024

FactoryAmong its many provisions, the Canadian Environmental Protection Act (CEPA) creates several lists of “toxic substances,” and empowers Environment and Climate Change Canada (ECCC) to revise the list. In 2021, ECCC add “plastic manufactured items (PMI)” to one of these lists, but was sued by manufacturers seeking to void the addition.  Extensive CEPA amendments were enacted in April 2023 (“Strengthening Environmental Protection for a Healthier Canada Act” (Bill S-5)), including revisions to the toxic substance lists – including recodification of the listing of PMI – and left ECCC’s authority over toxic substances relatively unchanged, so the litigation continued. In November 2023, the Federal Court ruled that the CEPA amendments did not moot the issues in the litigation, and ruled that ECCC had exceeded its statutory and constitutional authority when listing PMI.

How does CEPA address “toxic substances”?

CEPA Part 5 applies to “toxic substances,” which are broadly defined as follows:

“… 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; o

(c) constitute or may constitute a danger in Canada to human life or health.

Note the word “or” – ECCC may list a substance it determines meet any of these three criteria. CEPA and ECCC’s implementing regulations create several lists of “toxic substances.”

How and why did ECCC list PMI?

The government’s goal is that Canada release zero plastic waste by 2030. ECCC has made a series of policy and regulatory decisions to support this goal (I wrote about its proposal to create a National Plastics Registry HERE). After extensive scientific and economic reviews, with opportunities for public comment, ECCC proposed in October 2020 to list PMI as toxic, on the Schedule 1 list of toxic substances. Public comments were received from supporters and opponents of the proposal; during this period dozens of organizations filed formal objections and requested a Board of Review to provide a separate review of the agency’s analysis and determination. In April 2021 the Ministers denied these requests and finalized the listing, finding that PMI pollution has an immediate and long-term effect on the environment (meeting the first of the listing criteria quoted above). The accompanying regulatory impact analysis statement (RIAS) explained that the Order enabled “the ministers to propose risk management measures under CEPA on certain [PMI] to manage the potential ecological risks associated with those items becoming plastic pollution” – which would provide the flexibility to tailor regulatory responses appropriately. The agencies noted that listing a substance to Schedule 1 enables the agencies to propose risk management measures. ECCC subsequently pursued overlapping regulatory tracks for different instances (for example, in June 2022 ECCC issued regulations banning single use plastics; I discussed this HERE).

Opponents of the PMI listing, with Responsible Plastic Use Coalition as the lead plaintiff, sued to vacate the listing. The suit continued after the 2023 amendments to CEPA. The Federal Court has now decided the following:

  • CEPA’s amendments did not moot the dispute, since PMI remained listed after the reconfiguration of the lists of toxic substances
  • Because PMI come in myriad forms and configurations, “PMI” as a substance or even category of substances is broader than the definition of substance in CEPA suitable for listing.
  • The evidence used to list PMI did not establish that all PMI are “toxic,” so the listing exceeded ECCC’s CEPA authority
  • The agency decision to deny a Board of Review was justified only vaguely, and because of this lack of transparency the court could not determine the rejection was “reasonable” enough to justify rejection of plaintiffs’ demands
  • Because the listing order was overbroad, it exceeded the federal authority governing environmental issues (vis-à-vis provincial authority)

For all these reasons, the court declared the agency order listing all PMI to be ‘retroactively quashed and declared invalid and unlawful.”

What happens now?

The court’s decision to quash the 2021 addition to PMI as a ‘toxic substance” does not actually have direct effect, because Bill S-5 recodified the lists of toxic substances; however, a case attacking S-5’s listing as an exceedance of Parliament’s authority would involve the same arguments. The single use plastics order was not involved in this litigation and remains in place, although also under attack in separate litigation. Meanwhile, on December 12, the Government appealed this decision, reaffirming its goal of zero plastic wastes.

Self-assessment checklist

Does the organization produce plastics products that leave wastes after end users finish with them?

If so, has the organization evaluated the volumes of such wastes, their materials flows after initial use, and methods available for management of these wastes?

Has the organization assumed any post-use responsibilities for such wastes?

Is the organization presently required to report any of this information, and if so to which agency or organization?

Where can I go for more information?

 - “Management of Toxic Substances” web portal 

- “Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act, 1999: SOR/2021-86” (Canada Gazette, Part II, Volume 155, Number 10) 

  - “Canada’s Zero Plastic Waste Agenda” web portal 

About the Author

jon_f_elliottJon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years. 

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at:

Tags: Environmental risks, Environmental, Greenhouse Gas, climate change, Environment, Environmental Policy, Climate, ECCC, CEPA