Federal Court Strikes Down Order Designating Plastics As Toxic Substances

On November 16, 2023, the Federal Court (Court) in Responsible Plastic Use Coalition v. Canada (Environment and Climate Change) struck down the federal government's Order-in-Council (Order) adding "plastic manufactured items" (PMIs) to the List of Toxic Substances in Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA) as unreasonable and unconstitutional.

The Court determined that PMIs were too broad to be included on Schedule 1 of the List of Toxic Substances as there was no evidentiary basis to establish that all PMIs were harmful. Further, the Court held that the Order extended beyond the federal government's ability to regulate the environment through its criminal law power. The Court ultimately quashed the Order and declared it invalid and unlawful.