Written by Jonathan D. Cocker, Baker McKenzie and Peter Hargreave, Policy Integrity Inc.
With all of the talk from the Government of Canada about the coming laws targeting single-use plastics (SUP), it’s worth asking whether the Parliament has such powers and what’s needed for them to act on SUP. After all, the federal government has ceded much of its role to the provinces and territories which regulate over environmental protection generally, including most waste management matters, and some provinces have expressed hostility and a willingness to commence legal challenges to any encroachment on their jurisdiction, often on environmental matters such as climate change.
Regional exceptionalism has become the norm as the federal government has for decades left the provinces and territories to take the lead without national coordination. As a result, the federal approach to SUP which will inherently value (in some measure) national consistency over regionalism will have difficulty in establishing balance, particularly given that some provinces rely upon plastics production as critical revenue sources. So where exactly does the federal government believe they possess the powers to fulfil their promises to impose a SUP law across Canada?
CEPA and Toxic Substances
The federal government will, by all accounts, attempt to use Part V of the Canadian Environmental Protection Act, Controlling Toxic Substances. Specifically, Environment and Climate Change Canada has the power to regulate plastics under section 90(1) of CEPA, if satisfied that the substance is toxic, to place them on the List of Toxic Substances, which is Schedule 1 to CEPA.
Findings of toxicity were made for plastic microbeads in toiletries in 2017. Section 64 defines a substance as toxic if
“it is entering or may enter the environment in a quantity or concentration or under conditions that:
- have or may have an immediate or long-term harmful effect on the environment or its biological diversity;
- constitute or may constitute a danger to the environment on which life depends; or
- constitute or may constitute a danger in Canada to human life or health.”
On the Toxic Substances List already are substances Canadians would recognize as inherently dangerous such as lead and mercury. In contrast, the federal government would be seeking to make a common household material, broadly used to contain and preserve our foods, medicines, etc. equivalent under CEPA to these clearly toxic substances. It would be a difficult argument to claim that plastics are toxic at all times and for all purposes.
The ECCC presumably intends to assess plastics as toxic on a more narrow and functional basis – namely that plastics become plastic pollution as they degrade over time, principally as waste material, especially when not managed properly at the end of life. As waste management is admittedly a provincial/territorial area of legislative authority, the toxicity claim would blur jurisdictional lines. In short, it’s not as straight forward as the federal government has suggested.
The Test to Establish Plastics are Toxic
Curiously, while the test for plastics to be placed on Schedule 1 List is that plastics are toxic, the considerations the ECCC are to adopt in assessing a substance are expanded under section 68 to whether a substance is toxic or is capable of being toxic. The considerations include:
- whether short-term exposure to the substance causes significant effects,
- the potential of organisms in the environment to be widely exposed to the substance,
- whether organisms are exposed to the substance via multiple pathways,
- the ability of the substance to cause a reduction in metabolic functions of an organism,
- the ability of the substance to cause delayed or latent effects over the lifetime of an organism,
- the ability of the substance to cause reproductive or survival impairment of an organism,
- whether exposure to the substance has the potential to contribute to population failure of a species,
- the ability of the substance to cause transgenerational effects,
- quantities, uses and disposal of the substance,
- the manner in which the substance is released into the environment,
- the extent to which the substance can be dispersed and will persist in the environment,
- the development and use of alternatives to the substance,
- methods of controlling the presence of the substance in the environment, and
- methods of reducing the quantity of the substance used or produced or the quantities or concentration of the substance released into the environment;
As this is a list of considerations and not a strict legal test, no particular item may be necessary or sufficient for the federal government to declare plastics are toxic – there is likely considerable latitude where the science supports concerns over environmental harm.
Does the Draft Assessment Provide Sufficient Scientific Support?
On January 31st, 2020, the ECCC released its draft Science Assessment of Plastic Pollution. The assessment was not focused upon plastics itself, but rather on plastics when it comes pollution. This might be understood as an assessment of how plastics are capable of being toxic and not a study on the inherent toxicity of plastics, which has a separate assessment process. This itself is a departure from the ECCC’s common assessment process, although used for microbeads as arguably the first of those lifecycle toxicity tests.
The findings from the draft Assessment, still in consultation until the end of March, are limited to the pollution (read: waste) effects of plastics and not plastics absent their current usage:
The purpose of this report is to summarize the current state of the science regarding the potential impacts of plastic pollution on the environment and human health, as well as to guide future research and inform decision-making on plastic pollution in Canada. It provides a review of the available information on plastic pollution, including its sources, occurrence, and fate, as well as on the potential effects of plastics on the environment and human health.
It’s also notable that the draft Assessment is identifies as a “survey” of existing science and anticipates further research on plastics, even though the assessment is to serve as to “guide regulatory activities”.
This report is not intended to quantify the risks of plastic pollution on the environment or human health, but rather to survey the existing state of science in order to guide future scientific and regulatory activities.
The broad remedial powers of the ECCC under CEPA likely cure these defects in science for a finding of plastics as toxics, but proceeding to regulation from the draft Assessment alone may open the ECCC up to challenges that more is needed before such as determination can be made. The ECCC seems to leave the door open to more science, perhaps as much due diligence as inquiry.
It is also worth noting that the regulation of SUP in the name of plastic pollution mitigation aligns with Canada’s commitments under the Ocean Plastics Charter. Such an agreement does not however vest the federal government with implementation powers it does not already have.
So Which Plastics Would Be Declared Toxic?
The draft Assessment divides plastics into two categories: microplastics (5mm of less) and macroplastics (more than 5mm). There is some other discussion regarding alternative plastics, such as biodegradable, compostable and bioplastics, but these arguably aren’t sufficiently addressed in isolation in the draft Assessment to warrant findings specific to these alternatives.
It’s likely that each of microplastics and macroplastics will be the subject of distinct regulatory control measures on behalf of the ECCC under the coming law, with microplastics perhaps attracting the greater restrictions given the greater nexus to contamination. After all, “microbeads” of 5mm or less are already listed as a toxic substance on Schedule 1.
It’s also clear that the federal government views SUP as a more pressing matter in light of the 2021 implementation by member states of the European Union’s (EU) Single-Use Plastics Directive and the Ocean Plastics Charter. In fashioning a Canadian version of a SUP law, it’s worth understanding what regulatory instruments the ECCC would have under CEPA.
The Range of Control Measures Available
Once some category of plastics are deemed “toxic”, the ECCC inherits a considerable range of control instruments to regulate those plastics. Section 93 of CEPA provides the ECCC ability to control:
- the quantity or concentration of the substance that may be released into the environment either alone or in combination with any other substance from any source or type of source;
- the places or areas where the substance may be released;
- the commercial, manufacturing or processing activity in the course of which the substance may be released;
- the manner in which and conditions under which the substance may be released into the environment, either alone or in combination with any other substance;
- the quantity of the substance that may be manufactured, processed, used, offered for sale or sold in Canada;
- the purposes for which the substance or a product containing it may be imported, manufactured, processed, used, offered for sale or sold;
- the manner in which and conditions under which the substance or a product containing it may be imported, manufactured, processed or used;
- the quantities or concentrations in which the substance may be used;
- the quantities or concentrations of the substance that may be imported;
- the countries from or to which the substance may be imported or exported;
- the conditions under which, the manner in which and the purposes for which the substance may be imported or exported;
- the total, partial or conditional prohibition of the manufacture, use, processing, sale, offering for sale, import or export of the substance or a product containing it;
- the total, partial or conditional prohibition of the import or export of a product that is intended to contain the substance;
- the quantity or concentration of the substance that may be contained in any product manufactured, imported, exported, offered for sale or sold in Canada;
- the manner in which, conditions under which and the purposes for which the substance or a product containing it may be advertised or offered for sale;
- the manner in which and conditions under which the substance or a product containing it may be stored, displayed, handled, transported or offered for transport;
- the packaging and labelling of the substance or a product containing it;
- the manner, conditions, places and method of disposal of the substance or a product containing it, including standards for the construction, maintenance and inspection of disposal sites;
It is likely that a suite of these measures will be adopted distinctly for microplastics and macroplastics. (It’s not clear if alternative plastics would attract their own measures.) The EU’s Single Use Plastics (SUP) Directive may be instructive, it sets out a number of measures including:
- Aggressive recycling targets for beverage containers (77% by 2025 and 90% by 2030);
- Design requirements for beverage containers (i.e., recycled content and tethered caps);
- Labelling requirements for products that are often not disposed of properly (tobacco products, beverage cups, wet wipes and sanitary towels);
- Expanded producer responsibility requirements; and
- Bans by 2021 on single-use plastic cotton bud sticks, cutlery, plates, straws, stirrers, sticks for balloons; all products made of oxo-plastic; cups, food and beverage containers made of polystyrene foam.
Enter the Provinces
It is generally understood that most jurisdictions in the EU will achieve most of the outcomes in the Directive through EPR provisions. Given the diversity in approaches to EPR in Canada that could prove difficult to achieve as these efforts have firmly and institutionally rested with the provinces (and increasingly, territories) in Canada. The ECCC is playing catch up and there are some questions related to their legislative authority over this mechanism without the support of the provinces. A comprehensive strategy around SUP will necessarily involve provincial /territorial for which the 2018 Canadian Council of Ministers of Environment’s (CCME) Strategy on Zero Plastic Waste was just the beginning of a new age of cooperation on (plastic) pollution.
About the Authors
Jonathan D. Cocker heads Baker McKenzie’s Environmental Practice Group in Canada and is an active member of the firm’s Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environmental and product compliance matters, including extended producer responsibilities, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, and contaminated lands matters. He assisted in the founding of one of North America’s first Circular Economy Producer Responsibility Organizations and provides advice and representation to a number of domestic and international industry groups in respect of resource recovery obligations. Mr. Cocker was recently appointed the first Sustainability Officer of the International Bar Association Mr. Cocker is a frequent speaker and writer on environmental issues and has authored numerous publications including recent publications in the Environment and Climate Change Law Review, Detritus – the Official Journal of the International Waste Working Group, Chemical Watch, Circular Economy: Global Perspectives published by Springer, and in the upcoming Yale University Journal of Industrial Ecology’s special issue on Material Efficiency for Climate Change Mitigation.
Peter Hargreave, the President of Policy Integrity Inc., has over 15 years’ experience in providing strategic advice in the development, implementation and oversight of public policy. Over his professional career, he has developed a strong network of relationships with regulators, public and private organizations, and other key stakeholders involved in environmental issues across Canada, the United States and abroad. He has extensive experience in assessing waste management policies at the federal, provincial, and municipal level across the country. He has also played a key role in leading major research efforts in the waste management sector including data capture and analysis, and understanding the economic and environmental impacts of various waste management activities.