At a time when our oceans are filled with plastic pollution, chemicals used to make plastics are linked to serious health issues like decreased reproductive health and cancer, and scientists are finding microplastics virtually everywhere from Arctic sea ice and remote lakes to our lungs and our bloodstream, Big Plastic is fighting to stop attempts by government to regulate plastic, and worse yet, is ramping up efforts to keep us trapped in a plastic-dependent system.
That’s right, despite the overwhelming and mounting evidence that plastics are harming people and our planet, Big Plastic is trying to fight for the right to continue to produce it. And they mean business.
Big Plastic has teamed up and filed two lawsuits taking the government to court for trying to ban single-use plastics (SUPs). The Big Plastic coalition includes companies like Imperial Oil— a company that not only operates in the tar sands, but in Chemical Valley where their petrochemical plant operations cause harmful emissions linked to higher rates of cancer in the neighboring first nations community. Other big players like Dow Chemical – one of the top 3 largest petrochemical producers in the world, and Nova Chemicals – the largest petrochemical producer in Canada, are also involved. (And here’s some hot gossip: Imperial Oil is being represented by the same lawyers who have represented right-wing celebrity Jordan Peterson while the Canadian Constitutional Foundation (CCF), who are intervening in the case in support of Big Plastic, are part of an international network funded by the Koch Family Foundation👀)
What is Big Plastic Challenging?
Let’s dig in on the legalese. In 2021, in response to the ecological hazard that plastic pollution posed, the Minister of Environmental and Climate Change, and the Minister of Health, were satisfied that plastic manufactured items (PMIs), met the ecological criterion for a toxic substance as set out under the Canadian Environmental Protection Act, 1999 (CEPA). They therefore recommended that PMIs be added to Schedule 1 to the Act, which is the List of Toxic Substances. Adding PMIs to this list in effect prohibiteds the manufacture, import and sale of certain PMIs such as checkout bags, cutlery, foodservice ware made from or containing problematic plastics, ring carriers, stir sticks, and straws. These items were chosen based on the evidence that these items were found in the environment, are often not recycled, and have readily available and viable alternatives.
Almost immediately after the decision by the government was made to make the listing (called an Order) the Big Plastics coalition challenged the government’s decision on the basis that:
- The decision to list PMIs to the List of Toxic Substances under CEPA was not supported by available science and would have far reaching and unintended consequences.
- Most plastic is not toxic and the issue of plastic pollution is not an issue of production “but rather the challenge of post-consumer plastic in the environment resulting from human behaviour and systemic waste management and recycling shortfalls.”
In short the legal arguments put forward in their application to the federal court to get the Order struck down argued that the decision to ban plastics was:
- Unreasonable because the listing of PMIs was too broad and that the proper risk assessments had not been completed to demonstrate that all PMIs were toxic
- Unconstitutional as the decision fell outside the federal criminal law power.
In November 2023, the Federal Court disappointingly sided with Big Plastic, determining that the listing of PMIs were too broad and that the Order (decision by the government to list) extended beyond the federal government’s ability to regulate the environment through its criminal law power. The Court declared the decision to ban PMIs to be invalid and unlawful.
Obviously Greenpeace, frontline and fenceline communities and various other organizations and groups that advocated for the ban, and of course the government, disagreed.
So where are we now?
The federal government appealed the decision to the Federal Court of Appeal and we joined them! Represented by the lawyers at Ecojustice, the coalition of the Canadian Association of Physicians for the Environment, David Suzuki Foundation, Environmental Defence Canada, Greenpeace Canada, and Oceana Canada intervened in the appeal submitting that it is well within the federal government’s authority to list PMIs as a toxic substance under CEPA and highlighting the importance of keeping that decision in line with the precautionary principle. You can find our submissions here.
Why is this case important?
It’s deeply disturbing that Big Plastic is trying to convince the courts and the public that the PMIs the government is trying to ban are not harmful or toxic AND that the problem isn’t plastic production but plastic recycling. But we know better. Not only do we know plastic is harmful but we’ve become wiser to the fact that recycling plastic is an ineffective approach to the growing waste and pollution disaster facing our communities and adjacent ecosystems.
A court decision undoing the plastics ban could be devastating for all that has been achieved in the efforts to curb plastic pollution. It could mean that the federal government needs to show even more evidence that plastics are harmful before it can regulate it. Furthermore, it could even make it harder in the future for the federal government to regulate plastic production and pollution altogether leaving it up to the provinces and territories to regulate plastic in a patchwork way.
A bad decision means not only more years of fighting for plastic regulation and more money spent by our governments, but more harm caused to the environment and people by plastics polluting our world. And in the long run, it means more money spent by industry to transition to a plastic-free, zero waste, reuse-based future.
As Greenpeace Canada’s Head of Oceans & Plastics campaigns, Sarah King, has said “Big Plastic thinks it operates in a silo where it can keep producing and profiting amidst the pollution and climate crises surrounding it. The industry expects the public and the planet to keep dealing with its toxic mess while taking no accountability. But Big Plastic is grasping at straws with this lawsuit because it knows that a global movement of people, businesses and governments are charting a course to a future that doesn’t revolve around fossil fuels and a throwaway economy.”
How you can show your support!
There are a lot of things you can do to voice your concerns and show your support through action.
- Sign the petition to show your support to #ExpandTheBan! Petition
- Share this blog to expose what Big Plastic is up to and to help grow the movement of people calling for a plastic-free future.
- Call for global solutions to the global plastic crisis by calling for a strong Global Plastics Treaty!
