Many Canadians let out a sigh of relief late last year when they heard Justice Angela Furlanetto had ruled that the federal government’s listing of all plastic items as toxic was “unreasonable and unconstitutional.” Ottawa had failed to show, she found, that every single plastic substance was toxic, and in any case its classifying them that way encroached on the rights of provinces. Such a listing would have allowed for bans well beyond just straws and grocery bags: every plastic product would have fallen under criminal law.

Plastic manufactured products are included in Schedule 2 of Canada’s Environmental Protection Act (CEPA) at the end of a long list of other materials deemed to be toxic. The rest of the list includes materials identified by their complicated chemical components, as well as other entries involving 64 categories, sub-categories and sub-sub categories specifying exactly which are considered toxic. In contrast, entry number 132 simply lists “plastic manufactured items” and nothing more. No wonder the judge felt the category was too broad.

The federal government is appealing the judge’s decision. In June, government lawyers appeared before the Federal Court of Appeal in Ottawa to argue that the court had made a mistake in ruling this listing of plastic as unreasonable and unconstitutional. They argued that all plastics could possibly be harmful and the point of the law was to reduce harm. In other words, let’s ban everything, just in case.

Organizations and parliamentarians are pushing back. The Canadian Constitution Foundation, acting as an intervener in this appeal, is arguing that while the government does have the constitutional authority to list toxic substances in the CEPA, it cannot constitutionally use that criminal law power to include every single possible plastic product. The CCF’s Christine Van Geyn explains that “the criminal law power is not a magical incantation. Invoking the words ‘criminal law’ does not transform any issue into something Ottawa can regulate … the Cabinet Order plastic ban is outside the scope of the federal power.”

In the House of Commons, Conservative MP Corey Tochor has proposed a private member’s bill to delete plastic manufactured items from the CEPA list. It’s unlikely to get support from the Liberals or NDP, but it could be revived by a future Conservative government, which would be a win for all Canadians.

We’re not opposed to sensible policies to address climate change. But the many different bans (and exemptions, such as for heating oil) that Ottawa has already put into place are far from that. The regulations governing single-use plastics that they released in 2021 included strange exemptions like how much heat and washing-machine lasting-power the items needed to have to be considered exempt. They also gave exemptions to heavier plastic bags that would actually use more plastic to manufacture, and inexplicably allowed people to ask for plastic bags that the retailer had to keep out of sight. None of this seemed scientific or backed by expertise.

The listing of all plastic as a toxic substance means such exemption options won’t be available to consumers, who will be forced to use alternatives such as paper bags, cardboard straws and cotton totes. Studies suggest these alternatives are often worse for the environment than their plastic versions and costlier to boot. Danish research concluded that in order to have the same life-cycle effect on the environment as a single-use plastic bag paper bags would have to be used 43 times. Cotton totes would have to be re-used 7,100 times. Paper bags are also 2.6 times more expensive than single-use plastic bags. For their part, paper straws are three times more expensive than their plastic alternatives.

Slapping plastics onto the end of the CEPA’s Schedule 1 and calling it a day was sloppy and counterproductive. If the government were truly committed to environmental change, it would look into alternatives like expanding “chemical depolymerization,” which is the recycling of plastic products in ways that allow them to be broken down and repurposed into new products.

Right now, only one per cent of plastic waste is chemically recycled in this way. But many entrepreneurial Canadian companies are working on such alternatives, which could well help save the environment in a more efficient, less expensive way. But that takes more effort than adding three words to a list and ignoring what might actually work both for the environment and for Canadians who end up paying the price for costly and ineffective mandated alternatives to plastic.

Originally published here