Summary
On Oct. 7, 2020, federal Environment and Climate Change Minister Jonathan Wilkinson announced the federal government would draft regulations to add “plastic manufactured items” to the Schedule 1 list of toxic substances under the Canada Environmental Protection Act (CEPA) by December 2021. The regulatory plan would ban certain single-use plastics (SUPs), set recycled-content requirements for plastic products and packaging, and develop standards for extended producer responsibility and would be phased in over eight years. One day prior to the tabling of the draft federal plan on regulating SUPs, the Alberta government announced it was planning to expand its petrochemical sector, hoping this would generate more than $30 billion in economic growth by 2030 and Alberta’s industry would become a top 10 global petrochemical and plastics producer and recycler. This article looks at various aspects of the proposed federal plastics regulatory plan including potential complications arising from the public and provinces.
Introduction
On Oct. 7, 2020, federal Environment and Climate Change Minister Jonathan Wilkinson announced the federal government would draft regulations to add “plastic manufactured items” to the Schedule 1 list of toxic substances under the Canada Environmental Protection Act (CEPA) by December 2021 and begin to phase them out in bans over eight years.[2]2This designation comes after a scientific assessment undertaken by Environment and Climate Change Canada (ECCC) and Health Canada found plastics to be harmful to the environment.[3] The goal of the initial regulations would be to ban six types of SUP items, including plastic straws, stir sticks, take-out bags, cutlery, dishes and takeout containers and six-pack rings. Designating these SUPs as toxic is a required step in order to ban the planned items. It is noteworthy that numerous industry stakeholders and plastics packaging manufacturers and users expressed opposition to the proposed findings set out in the draft scientific assessment and the ECCC/HC proposal to designate plastics as “toxic” under CEPA, as noted in the ECCC’s summary of consultations on the document.[4]
What remains to be seen is whether all of the provinces will continue to fully support efforts by the federal government to ban and regulate SUPs in the wake of the COVID pandemic.[5] The current loose “consensus” developed by the Canadian Council for Ministers of the Environment (CCME) in 2018 and 2019[6] may not survive, especially if more recently elected provincial governments withdraw their support (or even mount legal challenges) to any SUP bans or phase-outs to be established. They could argue that any changes to federal and provincial laws to facilitate plastics bans or mandatory recycling should be delayed until the threat of the pandemic is considered sufficiently managed through vaccines and other public health measures.[7]
Alberta’s Response
On October 6th, one day prior to the tabling of the draft federal plan on regulating SUPs, the Alberta government announced it was planning to expand its petrochemical sector, hoping this would generate more than $30 billion in economic growth by 2030 and Alberta’s industry would become a top 10 global petrochemical and plastics producer and recycler. [8]8The Alberta government, working with Chemistry Industry Association of Canada (CIAC) and its member companies, says it intends to create more than 90,000 direct and indirect jobs and generate more than $10 billion in revenue for the province in corporate and personal income taxes, and help the province offset the decline in oil and gas investments.[9]
In response to the tabling of the draft federal plan on regulating SUPs, the Alberta government already has indicated that it intends to monitor federal efforts on SUPs carefully and possibly mount a legal challenge. On Oct. 7, 2020 Alberta Energy Minister Sonya Savage said the federal government should “approach everything as do no harm,” noting that Alberta’s economic recovery plan focuses on the “full life cycle approach for plastics, including recycling” but emphasized that plastics are used across the economy.[10]10 She added that Canadians use plastics “in every single thing that we do, every minute of the day,” and warned that the province is prepared to fight Ottawa if the federal government’s plastics strategy infringes on the province’s constitutional responsibilities or its economic recovery plan. Similarly, CIAC president and CEO Bob Masterson said in an Oct. 7th media release that CEPA “is not an appropriate tool for managing post-consumer plastic waste” and said the federal government needs to develop national waste legislation to “support advancing a circular economy for plastics in Canada.”[11]
Elena Mantagaris, the vice-president of the plastics division at the CIAC, added that plastic products don't belong anywhere near a list of harmful products that includes mercury, asbestos and lead.[12] Mantagaris argues that CEPA is a criminal-law tool and it's intended to manage toxic substances. She went to argue that “plastic is an inert material” putting plastics in schedules with substances that kill people is just giving plastic industry critics a platform "to use a label for their own interests." Mantagaris added "That's reputational damage to a sector, suddenly calling it toxic -- and that's not fair game."[13] The principal author of this article intends to further explore this argument about the appropriateness of using CEPA as a regulatory tool for SUPs in a future article for this newsletter and whether federal-provincial mirror legislation would be preferable.
Does federal Plastics proposal violate the U.S.-Mexico-Canada Agreement (USMCA)?
Meanwhile, on September 21, 2020 a coalition of U.S. industry associations representing chemicals, fossil fuels, food packaging and transportation wrote to federal Trade Minister Mary Ng, arguing Canada’s proposed plan to ban certain SUPs, set recycled-content requirements for plastic products and packaging, and develop standards for extended producer responsibility violates international trade obligations and the U.S.-Mexico-Canada Agreement (USMCA).[14]14The U.S. plastics coalition argues that “the proposed ban on any product containing plastic and manufactured in the United States clearly meets the definition of a non-tariff barrier and has the potential to have a significant impact on trade, including potential bans on the importation of plastic materials into Canada.” This regulatory action “could impact over $12.1 billion in U.S. exports to Canada … exclusive of other products that contain plastic”; moreover, taken without consultation with the U.S. and Canada’s other close trading partners – the federal proposal “directly threatens trade in plastic materials and products containing plastics, causing unintended consequences and commercial impacts across virtually every value chain.”[15]15The coalition goes on to argue that the proposed federal regulatory actions to ban products manufactured in North America from being offered for sale in Canada violates trade obligations under the USMCA and World Trade Organization because they are “based on an incomplete and inconclusive “scientific assessment,” contrary to Canada’s obligation under the USMCA Sectoral Annex 12A.4.3 to endeavor to use a risk-based approach to the assessment of specific chemical substances and chemical mixtures, where appropriate.[16]
Environmental and trade advocacy organizations have noted that this activity by U.S. industry confirms their fears about USMCA.[17] Prior to its signing these organizations warned USMCA’s regulatory cooperation provisions could provide opportunities for enhanced corporate meddling and an excuse to evade and delay regulations. They go on to note that a “Canadian Centre for Policy Alternatives report authored by Stuart Trew found even voluntary regulatory cooperation has helped multinational business interests weaken standards for rail safety, workplace hazard labeling and chemicals risk assessment. We worried that incorporating these provisions into an enforceable trade agreement would further undermine public protections.”[18]
Are Canadian Attitudes to SUPs changing because of COVID-19?
In the wake of the pandemic, current Canadian attitudes about SUP bans appear to range widely. A July 2020 survey suggested 86% of Canadians want the federal government to fulfill its commitment to ban, by 2021, many SUPs including plastic straws and polystyrene coffee cups and utensils.[19] However, a national poll for Dalhousie University undertaken in September 2020 shows that, post COVID-19, support for tighter regulation on SUPs and bans has declined dramatically since 2019, especially among men.[20] According to the poll,[21]support for plastic bans “has declined from 70 per cent in 2019 to 58” and “half of all respondents said new regulations on plastics should wait until after the pandemic is resolved.”
In a separate Leger poll of 1,001 British Columbians conducted for Postmedia in mid-September 2020, only 11 per cent of respondents wanted to use their own reusable beverage containers at a food outlet, while 70 per cent want some form of disposable container[22] and another 13 per cent said they won’t be eating out at all during the pandemic. Interestingly, this latter poll was undertaken shortly after British Columbia’s provincial government had approved five municipal by-laws enacting municipal bans on SUPs.[23] These provincial approvals were necessitated by a successful industry legal challenge to Victoria’s plastic bag ban by-law launched in 2018.[24]
Conclusion
In sum, it is unclear whether the Federal government’s proposed Plastics regulatory plan will survive the mounting challenges. The challenges that SUPs and other plastics pollution generate in Canadian coastal and Great Lakes communities and vulnerable river- and watersheds in urban centres are very different than those faced in primarily landlocked regions and communities. It seems plausible to this writer that provincial and local governments will ultimately be tasked with taking the lead in delivering plastics regulatory plans that are tailored to regional and local needs and public concerns about managing SUPs and plastics.
About the author
David McRobert is an environmental and indigenous rights lawyer based in Peterborough, Ontario. Corresponding author: David McRobert – mcrobert [@] sympatico.ca
Endnotes
[3] Environment and Climate Change Canada and Health Canada, Science assessment of plastic pollution, (October, 2020); https://www.canada.ca/en/environment-climate-change/services/evaluating-existing-substances/science-assessment-plastic-pollution.html. Under CEPA, a toxic substance is defined as one that can have an immediate or long-term harmful effect on environmental or human health if it is released into the environment. The final scientific assessment on single-use plastics was released on October 7th and confirmed preliminary ECCC findings, made public in January 2020, that plastics are found often in the environment, and have been proven harmful to wildlife and habitat. For example, turtles and birds and sea mammals, in particular, have been hurt or killed by ingesting plastic or being entangled in SUPs and plastic fisher nets.
[7] In addition, it is conceivable that the current minority federal government led by Prime Minister Justin Trudeau will be unable to push through amendments to CEPA and changes to other federal laws should these be required.
[10] The Alberta minister went on to suggest the federal government sometimes has a tendency to proceed at 90 miles per hour despite a lack of clear regulatory powers.
[11] Ibid. Masterson also said the federal plan to add “plastic manufactured items” to the Schedule 1 list of toxic substances under CEPA will hurt Alberta’s ambitions to become a top petrochemical and plastics producer.
[16] Ibid. The coalition further argues on p. 2 that “this approach may also violate Article 2.2 of the WTO Technical Barriers to Trade (TBT) Agreement, which requires that technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create.”
[19] Solid Waste and Recycling [SWR] staff. (20 July 2020). Canadians want feds to fulfill plastics ban. solidwastemag.com
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