On Nov. 16, the Federal Court of Canada ruled that the federal order-in-council classifying plastics as toxic is not only unreasonable but unconstitutional. The federal government has chosen to appeal this decision, ignoring calls from Alberta and others to accept the court’s decision.
As a result, Alberta’s government will participate in the appeal and will argue that the federal government’s decision to label plastic as a “toxic substance” is an unconstitutional intrusion into provincial jurisdiction.
“It is past time for Ottawa to listen. We have told them they are overreaching their jurisdiction, the private sector has told them so, and so have both the Supreme Court and the Federal Court. Ottawa cannot assume regulatory authority over any substance simply by designating it as toxic. We will continue to push back against Ottawa’s unconstitutional actions, including through this legal action, until they listen.”
"The Federal Court clearly ruled that the federal government’s plastics ban policies were unconstitutional. The federal government’s environmental policies and constitutional overreach have been heavily criticized and this ruling further confirms the indisputable nature of provincial jurisdiction in these matters. We are intervening in this appeal and will continue to participate wherever and whenever necessary to protect Alberta’s interests.”
In addition to intervening in the appeal, Alberta will monitor any further legal action taken to remove plastic manufactured items from the current Schedule 1 of the Canadian Environmental Protection Act. Several Calgary-based companies producing compostable plastic bags are now caught in the ban and will be barred from supplying Calgarians with low-emissions alternatives to traditional plastic shopping bags.
“Instead of listening to the courts and to Canadians, the federal government has chosen overreach once again. We will continue standing up for our constitutional jurisdiction while focusing on more effective ways to reduce plastic waste and keep it out of landfills.”
Alberta is committed to reducing plastic waste through initiatives like extended producer responsibility, which encourages businesses to find new ways to recycle materials and reduce waste. The province also advocates for strategies that create economies of scale, promote recycled content and develop local markets for transformed plastic waste.
Quick facts
- On April 23, 2021, the administrator in council issued an order-in-council directing that “plastic manufactured items” be added to Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA).
- The category of plastic manufactured items includes every piece of plastic that enters Alberta.
- Once a substance is designated as toxic under CEPA, CEPA allows the federal government to make regulations regulating every aspect of that substance’s life, from manufacture to sale to use and to disposal.
- Canada subsequently enacted the Single-use Plastics Prohibition Regulations (SUPPR) prohibiting the manufacture, import and sale of six single-use plastics. SUPPR is only valid if “plastic manufactured items” is listed as toxic on Schedule 1 of CEPA.
- The Responsible Plastic Use Coalition, Dow, Imperial Oil and Nova applied for a judicial review of the order. They challenged it as unreasonable on administrative law grounds and as unconstitutional on division of powers grounds.
- On Sept. 7, 2022, Alberta intervened in the application to address the constitutional questions. Saskatchewan intervened on Oct. 24, 2022.
- The application was heard March 7-9, 2023, and the court reserved its decision.
- On Nov. 16, the federal Court of Canada issued its decision. Justice Angela Furlanetto concluded that the order adding “plastic manufactured items” to the Schedule 1 was both unreasonable from an administrative law perspective, and unconstitutional.