Notice of objection: Gowling WLG  (Canada) LLP - February 2022

February 22, 2022

The Honourable Steven Guilbeault
Minister of the Environment and Climate Change

c/o Tracey Spack, Director
Environment and Climate Change Canada
Plastics Regulatory Affairs Division
351 Saint-Joseph Boulevard Gatineau
Quebec K1A 0H3

By E-Mail: ec.plastiques-plastics.ec@ec.gc.ca

Dear Minister Guilbeault:

Re: Notice of Objection and Request for Board of Review in relation to the Proposed Single-Use Plastics Prohibition Regulations under the Canadian Environmental Protection Act, 1999; Canada Gazette Part I, Vol. 155, No. 52 - December 25, 2021

We are writing on behalf of Responsible Plastic Use Coalition (“RPUC”).

This submission responds to the December 25, 2021 Gazette Notice (the “Notice”) in which the Governor in Council, on the recommendation of the Minister of the Environment (the “Minister”), proposed regulations to eliminate or restrict 6 categories of single-use plastics (“SUPs”) under the Canadian Environmental Protection Act, 1999, (“CEPA 1999”), (hereinafter referred to as the “Proposed Regulations”). ^[1]

As provided for by section 332(2) of CEPA 1999, we are filing this Notice of Objection and request that a Board of Review be established, pursuant to section 333 of CEPA 1999, to “inquire into the nature and extent of danger” posed by the 6 categories of SUPs, for the reasons set out below.

1) The Proposed Regulations are ultra vires the enabling authority set out in subsection 93(1) of CEPA 1999 since Plastic Manufactured Items are not a “substance”, nor are the 6 targeted SUPs listed on Schedule 1.

The Notice states that the Minister of the Environment is recommending and the Governor in Council is proposing the Proposed Regulations pursuant to subsection 93(1) of CEPA 1999.^[2] Subsection 93(1) requires the identification of “a substance”, singular, for regulation. It states:

• Subject to subsections (3) and (4), the Governor in Council may, on the recommendation of the Ministers, make regulations with respect to a substance specified on the List of Toxic Substances in Schedule 1, including regulations providing for, or imposing requirements respecting… [emphasis added]

CEPA 1999 goes on to list activities and factors which can be regulated for listed substances.

The Governor in Council does not have the authority to make regulations with respect to the 6 SUPs under s. 93(1). The listing relied upon for the Proposed Regulations is invalid, and the 6 SUPs themselves have not been assessed and are not listed on CEPA Schedule 1.

1.1 “Plastic Manufactured Items” are not “a substance” as defined by CEPA 1999.

On April 23, 2021, the Governor in Council ordered the addition of “Plastic Manufactured Items” (“PMI”) to Schedule 1 of CEPA 1999, through publication of an order in the Canada Gazette Part II (the “Order”).^[3] The listing of PMI is identified in the Notice as allowing the Minister to make the Proposed Regulations.^[4]

However, PMI are not “a substance” as defined by CEPA 1999 that is capable of being either listed on Schedule 1 or regulated under s. 93(1).

As you are aware, the listing of PMI on the Toxic Substances List is being challenged in Federal Court File T-824-21 based on some of the same considerations set out here, in addition to other reasons. Please let us know if you require a copy of any of the materials served and/or filed by the applicants in T-824-21 as all of those materials should all be before the Minister in considering our request to establish a Board of Review in relation to the Proposed Regulations.

Section 3 of CEPA 1999 defines “substance”. The definition includes a manufactured item formed into a specific physical shape or design and has a function or functions dependent on its shape or design.^[5] PMI are not “a substance”. Rather, PMI is a broad category that includes a wide variety of substances.

As such, PMI should neither have been listed on Schedule 1, nor can it be the “substance” targeted by regulations under s. 93(1).

If the Ministers are without jurisdiction to add PMI to Schedule 1, then the Ministers are without jurisdiction to enact the Proposed Regulations.

To illustrate this point, similar to PMI as a whole, the 6 SUPs are not a single type of substance. They do not have the same physical shape, design, function, or the same chemical structure. Rather, they are recognized in the Regulatory Impact Analysis Statement (“RIAS”) that accompanies the Notice as being made from a variety of different plastics with different chemical properties, such as polypropylene, polystyrene, extruded polystyrene foam, polyvinyl chloride and low-density polyethylene.^[6] These different plastics have different physico-chemical and toxicological properties. This is confirmed by the government’s “Science Assessment of Plastic Pollution” from October 2020 - in essence a literature review (“Literature Review”) - which recognizes that the ability to produce different plastics “has resulted in the production of a myriad of plastic materials with varying physical and chemical properties.”^[7] The 6 SUPs also each have different uses as confirmed by the descriptions of the items themselves.

There are two other distinctions drawn in the RIAS and Proposed Regulations that distinguish what the Proposed Regulations are attempting to regulate and what is actually listed in Schedule 1, PMI.

The first is the unsupported distinction between “single-use” versus “reusable” plastics. In the process leading up to the Proposed Regulations, there was no assessment or justification for regulating “single-use” versus “reusable” plastics. The Literature Review supporting the Order does not assess “single-use” plastics as a distinct subset. The Order itself groups all PMI together to be listed as a toxic “substance”. It is only the RIAS accompanying the Proposed Regulations that relies on this distinction to determine what is to be regulated and what is not, and the RIAS does so without any scientific basis.

The second unsupported distinction is the labelling of “problematic plastics”. This term is used in the RIAS in relation to foodservice ware as a justification for regulating these items, without any explanation or assessment of why these plastics are “problematic”.^[8] If the Proposed Regulations are targeting “problematic plastics”, these need to be identified, assessed for what makes them “problematic” and therefore why they should be listed. Any ensuing regulations should be limited to those items which are actually determined to be “problematic plastics” based on a supportable scientific rationale.

Further, the RIAS and Proposed Regulations support the argument that there is actually no supportable rationale for the listing and regulation under CEPA 1999 of PMI. The Proposed Regulations and the RIAS acknowledge that many PMI are not harmful and in fact perform essential functions.^[9] For example, the RIAS notes with respect to some of the SUP items targeted by the Proposed Regulations, “…substitutes exist that are also plastic manufactured items, but which do not pose the same environmental or value-recovery challenges” [emphasis added].^[10] The RIAS also notes that for all 6 categories of SUPs, there are acceptable substitutes made of “durable plastics”.^[11] Accordingly, based upon the statements in the RIAS, PMI are not “toxic”, and therefore PMI does not satisfy the test set out in CEPA 1999 required to be met in order to be added to Schedule 1.

The specific items therefore are not a single substance nor do they belong to a single class of substances^[12]: if some PMI are not harmful then PMI as a single substance or “class” do not have similar physico-chemical or toxicological properties. Hence, the previous listing of PMI to the Toxic Substances List was overbroad, unfounded and legally and scientifically incorrect.

1.2 If the 6 targeted SUPs were considered “toxic” then those SUPs should have been listed in Schedule 1.

In order to be regulated under CEPA 1999, the 6 SUPs must be found to be “toxic”. The government cannot ban the 6 SUPs pursuant to the Proposed Regulations unless there are the supporting scientific studies confirming that the 6 SUPs are “toxic”. In order to regulate the 6 SUPs what the government should have done is assess each one the 6 SUPs individually and, if only if the science found any one of them to be toxic, then to add the ones found to be “toxic” to the Toxic Substances List. Each targeted SUP has specific and distinct qualities as evidenced from their nuanced definitions in the Proposed Regulations. The RIAS recognizes that there are versions of the SUPs which are not harmful. It is improper and contrary to CEPA 1999 that items not assessed and not listed on Schedule 1 be regulated under s. 93(1).

The listing of PMI is contrary to the authority under CEPA 1999. Likewise, the Proposed Regulations’ attempt to control activities related to 6 unlisted SUP items has no authority in law.

For the reasons set out above, the Proposed Order is ultra vires subsection 93(1).

2) The Proposed Regulations are aimed at waste management, which is outside of federal jurisdiction.

Waste management is a matter of provincial and territorial, and by extension municipal, jurisdiction. While the Proposed Regulations cite CEPA 1999 as providing the federal authority for their enactment, the Proposed Regulations do not in fact deal with toxic substances but rather are an attempt to regulate waste management. This is ultra vires the federal government’s jurisdiction.

The RIAS accompanying the Notice and Proposed Regulations is focused on recycling and waste concerns, not the alleged toxicity of PMI. The RIAS states that “[t]he objective of the proposed Single-Use Plastics Prohibition Regulations…is to prevent plastic pollution”.^[13] The 6 targeted SUPs have been selected not due to their threat of “ecological harm”, but due to difficulty in recycling. This focus is illustrated in the RIAS in its explanation of why single-use water bottles are not targeted:

• Many stakeholders questioned why SUP water bottles were not included in the ban. Water bottles are typically made from polyethylene terephthalate, which is a highly recyclable plastic resin, and are subject to programs such as bottle deposit schemes in many jurisdictions. As a result, they do not meet the criteria for prohibition or restriction under the Framework. Nonetheless, the Department is aware of litter data showing large numbers of SUP bottles in the environment, and will review performance data for existing measures and work with partners and stakeholders to identify areas where further action is needed. [emphasis added]^[14]

“High recyclability” and “litter data” are not proper considerations for a regulation enacted by the federal government under CEPA 1999 to address “toxic substances”. Rather, the issues of recyclability and litter are, at their core, waste management issues.

In addition, while instances of cooperative federalism may support the involvement of the federal government in resolving an environmental issue over which another level of government typically has primary jurisdiction, this is not what is occurring here. While the RIAS notes that the federal, provincial, and territorial governments have been working together on the Strategy on Zero Plastic Waste, this is not sufficient to claim that the Proposed Regulations are an exercise in cooperative federalism.^[15] The proposed ban on SUPs was not part of the Strategy on Zero Plastic Waste. In fact, unilateral action by the federal government proposing to ban SUPs, without consulting the provinces, is in direct conflict with the recommended actions as set in the Strategy on Zero Plastic Waste. The Proposed Regulations run contrary to the plan developed and agreed to by the Canadian Council of Ministers of the Environment, of which the federal government is a part, and the provinces ,.

This concern was raised with the federal government several months prior to the release of the Proposed Regulations. In its “What We Heard” paper on the “Proposed integrated management approach to plastic products”, the federal government collected perspectives from various partners, stakeholders and Canadians on proposed measures to regulate plastics.^[16] Stakeholders voiced the opinion “that waste management is a provincial and territorial responsibility, and that the Government of Canada should work with these jurisdictions through the Canadian Council of Ministers of the Environment” rather than unilaterally enact regulations on plastics.^[17] The appropriate activity for the federal government was identified as investing in innovation and recycling infrastructure.^[18]

Furthermore, the RIAS rightly notes that “[s]everal provincial, territorial, and municipal jurisdictions have already enacted prohibitions or standards for certain SUPs”.^[19] However, the Proposed Regulations fail to take into account the existing Extended Producer Responsibility programs and provincial and municipal initiatives in this area. They would instead impede the ability of these governments to exercise their authority over waste, which they have historically managed and are already regulating with respect to plastics.

This is not a new area of environmental jurisdiction that requires a novel approach; this is squarely within the provinces’ and territories’ jurisdiction and should not be coopted by the federal government for political aims.

3) The Proposed Regulations, like the Order, are not based on “science-based decision making”.

The Order listing PMI on Schedule 1 lacked scientific data and analysis required to support the listing.

Similarly, there are a number of scientific gaps and flaws in the RIAS for the Proposed Regulations. They include:

• Reliance on the Literature Review as a “science assessment” when it does not actually provide a scientific assessment or determination of the toxicity of plastics or of the SUPs which are listed in the Proposed Regulations;^[20]

• Reliance on the 1% leakage of plastic pollution number from the 2019 Economic Study of the Canadian Plastic Industry, Markets and Waste by Deloitte (“Deloitte Study”) to calculate the baseline scenario and reduction in plastic pollution resulting from the Proposed Regulations, when the Minister has offered no measurement, data or peer-reviewed science establishing a “leakage” rate of 1% for the SUPs in Canada;^[21]

• The improper reliance on Life Cycle Assessments (“LCAs”) for the alternatives to the 6 SUPs, some from jurisdictions which have entirely different waste management systems, and from which “analysis and findings are inconsistent, qualitative, do not apply the waste management hierarchy in assessing end-of-life outcomes, and consider the ecological impacts of litter only qualitatively”;^[22]

• Failure to address the fact that several LCAs relied upon indicate that several if not all SUPs targeted by the Proposed Regulations are less environmentally harmful than their alternatives;^[23]

• The arbitrary dismissal of a lack of literature on the 6 targeted SUPs on the basis that literature encompassing all “plastic pollution” can be applied to assess the specific SUPs simply because SUPs are a common form of plastic pollution, despite the wide range of types and varying effects of plastic pollution.^[24]

• The arbitrary expansion of the application of the Proposed Regulations to include:

  1. compostable plastic versions of the 6 SUPs despite the government having previously highlighted compostable plastic’s capacity to improve a product’s environmental footprint;^[25] and

  2. all versions of single-use plastic foodservice ware made from extruded and expanded polystyrene despite only “polystyrene foam, including expanded and extruded” having been assessed for regulation;^[26] and

• The conclusion that due to inconsistencies in the data relied upon, “it was not feasible to determine the extent or magnitude of the environmental effects” of the Proposed Regulations.^[27]

These flaws and the lack of science-based decision-making behind the Proposed Regulations generally, is a critical issue for action taken pursuant to CEPA 1999, as described further below.

Furthermore, the RIAS estimates that approximately 14% of substitutes for the 6 targeted SUP’s will consist of other plastic manufactured items, consisting of 229 101 tonnes of plastic substitutes over the analytical period.^[28] A regulation that partially replaces one “toxic substance” with another “toxic substance” (both of which rely on the same definition in CEPA Schedule 1) suggests the regulation is about something other than managing toxic substances.

Rather than being science-driven, the Proposed Regulations are based on political, policy preferences. This is in contravention of the enabling legislation. The arbitrary and politically-driven decision-making leading to the Proposed Regulations is obvious in two ways.

First, several of the items targeted by the Proposed Regulations and deemed “toxic” under CEPA are regulated, approved for use, and considered safe (in example, non-harmful) by other federal legislation:^[29]

Five of the 6 SUPs targeted are already regulated under the Food and Drugs Act (“FDA”) by Health Canada.^[30] The FDA prohibits the sale of an article of food that “has in or on it any poisonous or harmful substance” or “was …packaged…under unsanitary conditions”.^[31] The Food and Drugs Regulations (“FDR”) additionally prohibit the sale of “any food in a package that may yield to its contents any substance that may be injurious to the health of a consumer of the food”.^[32] Given these requirements, plastics are frequently used for food-contact packaging on account of their safety: they withstand heat treatment (e.g., for hermetically sealed containers), can be sealed, will not degrade or allow bacteria or other substances to come into contact with the food and can withstand various types of transport and storage. It is therefore no surprise then that Health Canada’s “List of acceptable polymers for use in food packaging applications” contains several plastic polymers.^[33] While the Food and Drugs Act and Regulations don’t require plastic packaging for foods, plastic is one of the very limited types of packaging that has been found to meet these requirements.^[34]

In short, the safety of the SUPs has already been addressed and it has confirmed that these items are safe to use, not toxic as the Proposed Regulations contend.

Second, and related to the above point, the Proposed Regulations exclude plastic items that are promoted by other Federal government ministries:

For example, the Proposed Regulations do not capture plastic water bottles despite them being ubiquitous as litter in the Canadian environment.^[35]This may be because bottled water is considered a food product in Canada and is regulated by Health Canada and the Canadian Food Inspection Agency.

The website for Agriculture and Agri-Food Canada, whose aim is to “promote innovation and competitiveness”, promotes bottled water, describing its “health and wellness benefits”.^[36] It likewise notes that “increasing restrictions by local cities and government for the use of single-use plastics in packaging and the growing awareness of environmental protection can have a negative influence on the use of plastic containers.”^[37]

The lack of sound basis for the Proposed Regulations is further evidenced by a review of the Deloitte Study. Potential government interventions identified in the Deloitte Study, which was relied upon by Canada in order to add PMI to the Schedule 1 of CEPA, did not include bans on single-use items. It also did not identity this group of 6 SUPs as significant contributors to plastic in the environment.^[38]Rather, it recognized the necessity of “concurrent, strategic interventions by government, industry stakeholders and the public across each stage of the plastic lifecycle and targeted at sectors”.^[39] Five interventions were identified, none of which included the measures at hand.

Contrary to the requirements under CEPA 1999, the Proposed Regulations are not founded on science-based decision-making, but rather are based on subjective and arbitrary decision-making.

4) The RIAS does not demonstrate that environmental harm will diminish under the Proposed Regulations, but rather indicates that environmental harm will be greater.

The RIAS purports to demonstrate that the Proposed Regulations will diminish overall environmental impacts by restricting or eliminating the use of certain PMI.^[40] However, a closer look at the information reveals that the Proposed Regulations are more likely to cause greater environmental harm.

The Proposed Regulations would result in 1.8 million tonnes more waste in the span of 10 years.^[41]The RIAS acknowledges that the increase in waste “would represent additional costs for municipalities and provincial authorities, as they are usually responsible for managing collection, transportation, and landfilling of plastic waste […]”. Despite an increase in waste, the RIAS suggests that the change in waste is desirable for other environmental reasons based on the fact that it would not be plastic waste. However, a review of the LCAs relied upon for the RIAS on both the 6 SUPs and their alternatives suggest that there are flaws with this assumption.

For example, in the case of plastic bags, one LCA on different types of bags suggests that while the issue of litter is improved when the use of SUP bags is decreased, almost every other environmental factor is worse.^[42] For instance, paper bags, a common SUP bag substitute, perform significantly worse than SUP bags with respect to human health, ecosystem quality, and the use of fossil fuels.^[43] Another alternative, biodegradable bags, “does not offer an environmental advantage” as its life-cycle is nearly identical to that of a conventional plastic bag and while it breaks down into smaller fragments faster when abandoned in the environment, those fragments persist for a long time.^[44] Overall it has been found that plastic bags, while they may not perform well with respect to litter, outperform substitutes in almost every other impact category.^[45]

Taking plastic foodservice ware as another example, one meta-analysis of seventy-one unique LCA studies of packaging and foodservice ware that the RIAS failed to consider concluded that “recyclability is a popular but poor predictor of the environmental impacts of packaging.”^[46] The study noted that “the use of material attributes as proxies for environmental goodness” is “misguided.”^[47] Another LCA which was reviewed as background to the RIAS states that for food containers, “the paper option […] was found to perform worse or at best the same as the polystyrene option (SUP) considering all the sensitivity scenarios assessed.”^[48]

There are also significant flaws with the distinction made in the RIAS between “single-use” and “reusable” items. The RIAS assessment supporting the Proposed Regulations rests on the distinction between “single-use” plastic items, and their replacements which are considered “reusable”. The Proposed Regulations identify “single-use” items with the use of tests. However, whether an item is truly “reusable” depends on whether people actually reuse the item, not its thickness, composition, or ability to withhold its shape in certain conditions.

Throughout the RIAS, there is an assumption that people will reuse the substitute items and will do so multiple times. For example, the analysis in the RIAS “assumes that each [plastic] reusable checkout bag would be used 100 times on average”.^[49] This is a key requirement for the findings in the RIAS, as it is noted that “[m]any LCAs conclude that a reusable substitute must be used many times before its environmental impacts equal or become less than that of SUPs”.^[50]

The assumptions in the RIAS are not supported by scientific studies, and reflect the arbitrary nature of the decision-making which led to the Proposed Regulations.

First, the RIAS has not establish just how many more times the SUP substitutes would need to be used in order to minimize or negate their environmental effects. This is critical information to properly assessing the impact of the Proposed Regulations.

Second, this assumption as the extent of reuse of the reusable checkout bag is flawed. It is a big leap from current consumer practices around reuse of SUP substitutes to the amount of use the substitutes would need to see in order to minimize or negate their environmental effects. The RIAS itself states that “studies have shown that reusable products may not be used to their fullest extent by consumers (e.g. 15 to 20 uses rather than 100 or more uses)”.^[51] The RIAS attempts to overcome this issue by stating that the Government of Canada will educate consumers on the reuse potential of the substitutes, and that the “minimum performance standards” for the substitutes ensure that the substitutes could be reused several times.^[52] Yet there is nothing to suggest this will be enough. The RIAS has failed to demonstrate how consumer education and performance standards can realistically make up for a behaviour gap of 500%+.

The above findings suggest that the best approach to improving environmental outcomes is the opposite of the federal approach: regulate SUPs provincially at the point of becoming litter, not their creation and use. Otherwise, then Proposed Regulations will in fact be causing more environmental harm than good.

5) The tests in the Proposed Regulations for determining whether plastic checkout bags, cutlery or straws are “single-use”, and therefore subject to regulation, are unscientific.

CEPA 1999 is a science-driven statute. The Proposed Regulations are slated to be enacted under CEPA 1999 for the purpose of regulating an allegedly “toxic” substance. However, the tests^[53] set out in the Proposed Regulations for determining when checkout bags, cutlery or straws are “single-use” and therefore “toxic” and subject to regulation lack any supportable scientific rationale.

The tests are as follows:^[54]

The performance criteria do not relate in any way to the potential toxicity of the items, but rather are an arbitrary measure of whether the item is “single-use” or not. Furthermore, the arbitrariness of these tests is indicated by the fact that there are no similar criteria for stir sticks, ring carriers, or foodservice ware, as the RIAS states that “all products meeting the definition in the proposed Regulations are expected to be single use”.^[55] However, there is no evidence that cutlery, straws and bags that do meet the criteria will be or even will likely be re-used.

The parameters of the tests themselves are also arbitrary. The RIAS provides no indication of where the water temperature of “82°C and 86°C for 15 minutes” comes from with respect to cutlery and straws. While one would presume that this accounts for washing temperatures, even typical commercial dishwashers operate at much lower temperatures, with a very short (10 second) rinse cycle at a higher temperature.^[56] If people are washing and reusing cutlery or straws, they will not be subject to temperatures of 82-86°C for 15 minutes.

The same is true with respect to the criteria for bags. There is no definition of “plastic film”, which leaves the door open to varying interpretations. Furthermore, there is no rationale provided for why 10kg, 53m or 100 times is chosen. While California has similar criteria for reusable grocery bags, the tests set out in the Proposed Regulations are notably different in that they lack a standard to guide the measurement of the criteria, they lack specification of the thickness of the bag, and they are not being made under waste management laws.^[57] In brief, this is a substantially different test that places restrictions on manufacturers, importers and exporters which are unique to Canada and may therefore contravene the USMCA and other international trade law.

Presumably these criteria are intended to mimic use, but the way bags are used, the shapes and sharpness of the objects they contain, the amount they are jostled - among other factors - will all have an impact on their durability yet this is absent from the tests. Furthermore, it seems highly unlikely that anyone will be washing their plastic bags in the washing machine, no matter which cycle is used.

The tests for these three “single-use” items are unfounded and do not meet the requirement under CEPA that decision-making be science-driven. If enacted as written, the Proposed Regulations would put an undue burden on industry to meet convoluted and baseless tests.

For the reasons set out above, the Proposed Regulations are deeply flawed and ought not to be enacted.

Request for Board of Review

As provided for by section 332(2) of CEPA, the Responsible Plastic Use Coalition respectfully request that a Board of Review be established, pursuant to section 333 of CEPA, to “inquire into the nature and extent of danger” posed by the 6 SUPs identified in the Proposed Regulations.

As set out above, the Proposed Regulations do not target a substance or even a class of substances listed in Schedule 1 of CEPA 1999. As a result, the criteria for toxicity with respect to the 6 SUPs targeted have not been satisfied. The reason that the Proposed Regulations fail to meet these statutory requirements is because the regulatory process leading up to the Order listing PMI, which is cited as the authority for the Proposed Regulations, was a marked departure from the norm under CEPA 1999. In particular, the Proposed Regulations are not supported by a substance risk assessment for either PMI or the 6 SUPs, nor by science or weight of evidence analysis.

The Literature Review, which is credited with supporting the Order and Proposed Regulations, does not individually assess each plastic polymer or plastic item captured by all “PMI”. It was not a risk assessment, and was “not intended as a substitute for” risk assessment.^[58] The Deloitte Study furthermore makes no mention of the 6 targeted SUPs themselves actually causing harm.

Had Environment and Climate Change Canada (“ECCC”) and Health Canada looked at these items individually, and established their toxicity by demonstrating that they cause harm, and identified the quantity, concentration or conditions under which they enter the environment, and listed them individually if warranted, then a Board of Review would not be required. However, this has not been done. There is no information or science being provided as the basis upon which to regulate these 6 SUPs or to assess whether the measures in the Proposed Regulations are the right ones.

A Board of Review would provide an opportunity to remedy the above shortcomings. A targeted and more robust review would place science and risk assessment front and centre. A Board of Review could examine the scientific data available, including the quality and uncertainty associated with the data, and to determine, in a credible manner, if “Plastic Manufactured Items” and the 6 targeted SUPs in fact pose a risk of harm that satisfies the criteria set out in section 64 of CEPA 1999.

In particular, a Board of Review is needed to properly assess:

• The actual quantity or concentration of plastic entering the Canadian environment;

• The environmental harm, if any, which that plastic actually causes; and

• The lifecycle data on the 6 targeted SUPs and the most beneficial alternatives.

1) The Importance of Science

One of CEPA’s “Guiding Principles” is that CEPA 1999 “emphasizes the integral role of science” in decision-making.^[59] The entire statutory scheme of Part 5 of CEPA 1999, Controlling Toxic Substances, is built on sound, scientific assessment of risk in relation to the management of toxic substances.

ECCC’s own guide to CEPA 1999, which has been in place since 2004, underscores that risk assessment is the “prelude to, and informs, the risk management stage for all programs” under CEPA 1999.^[60] As noted above, however, no risk assessment was undertaken for “Plastic Manufactured Items” or for the 6 SUPs targeted by the Proposed Regulations.

Risk assessments must be based on “sound science”, and incorporate the “weight of evidence” approach (discussed further below):

“Risk Assessment - Substance risk assessments are based on sound science, which supports a better understanding of their impacts and exposure to the environment and human health. The assessments incorporate the precautionary principle and a weight of evidence approach. Risk assessment also helps to identify the sources of pollution that pose the greatest risk to the environment and human health...risk assessment is the prelude to, and informs, the risk management stage for all programs under CEPA 1999...”^[61]

The Government of Canada makes clear in ECCC’s online guidance related to CEPA 1999 that, in all cases, the determination as to whether a substance is toxic and should be added to Schedule 1 must either be based on a risk assessment, or on a finding that a substance is “CEPA-toxic equivalent”, which must in turn be the result of a systematic, risk-based assessment:

“Substances may also be added to the List of Toxic Substances in Schedule 1 of CEPA through section 90(1) of the act without having gone through a Priority Substances List assessment, a screening assessment, or the review of another jurisdiction’s decision if, on the recommendation of the ministers of Environment and Health, the Governor in Council is satisfied that a substance is toxic. A substance is “CEPA-toxic equivalent” if it satisfies the definition of “CEPA-toxic” as a result of a systematic, risk-based assessment. Such assessments can include determinations made under other federal statutes, or can incorporate appropriate elements of assessments done by or for provinces or territories, international organizations or other appropriate scientific authorities” (emphasis added)^[62]

The Government of Canada further advises that systematic, risk-based assessments found to be “CEPA-toxic-equivalent” could come out of international organizations, provinces, or “appropriate scientific authorities”.^[63] The examples provided in relation to subsection 90(1) are the Montreal Protocol on Substances that Deplete the Ozone Layer, in relation to the substance bromochloromethane, and the Stockholm Convention on Persistent Organic Pollutants, in relation to the substance DDT.

Both Conventions were implemented under the auspices of the United Nations Environment Program, and in both cases, rely on rigorous, science-based evaluation leading to multilateral action on global environmental issues of concern. Furthermore, it cannot be credibly asserted that bromochloromethane and DDT are in any way comparable to “Plastic Manufactured Items”. In no case, in relation to Schedule 1, does ECCC assert that it is appropriate, or within the power of the Governor-in-Council pursuant to CEPA 1999, to find a substance “CEPA toxic”, or “CEPA-toxic equivalent”, without a proper, science based risk assessment. Yet this is precisely what the Order has done in relation to “Plastic Manufactured Items”, and what the Proposed Regulations assume with respect to the 6 targeted SUPs.

2) The Absence of Science, and Risk Assessment, in Support of the Proposed Regulations

As noted above, the Literature Review was not a risk assessment, and was “not intended as a substitute for” risk assessment. The Literature Review itself makes this point:

“This report is a review of the current state of the science on plastic pollution. It is not intended as a substitute for chemical risk assessment...”^[64]

ECCC acknowledges that it was unable to carry out a risk assessment in relation to “Plastic Manufactured Items” due to “significant data gaps”. These data gaps included a “lack of standardized methods” for monitoring, and for “characterizing the environmental and health effects” of the substances under review”. They also included “inconsistencies in reporting” in relation to both occurrence and effects data:

Typically, a chemical risk assessment is conducted to assess the potential for risk to the environment and human health associated with a substance. However, significant data gaps currently exist that preclude the ability to conduct a quantitative risk assessment, including a lack of standardized methods for monitoring microplastics and characterizing the environmental and human health effects of plastic pollution, as well as inconsistencies in the reporting of occurrence and effects data in the scientific literature (Gouin et al. 2019).^[65]

The Literature Review presents no evidence or scientifically supportable rationale to support the Proposed Regulations. To the contrary, there has been no attempt at all to conduct risk assessments in relation to the 6 targeted SUPs. They were not identified for analysis in the Deloitte Study, the Literature Review, or otherwise; their toxicity has not been demonstrated; and they have not been listed on Schedule 1. There is no evidence of the quantity, concentration or conditions under which they enter the environment. There is no evidence either that the exact shape or properties of the items targeted in the Proposed Regulations cause harm.

The Minister does not have a basis to recommend, and the Governor in Council does not have a basis to propose, measures to manage risks that have not been understood or even established.

3) The Precautionary Principle

The RIAS for the Proposed Order had asserted that “Plastic Manufactured Items” are being added to Schedule 1 in accordance with the precautionary principle, in order to “address the potential ecological risks associated with certain manufactured items becoming plastic pollution”.^[66]

The RIAS for the Proposed Regulations states that the Literature Review “recommended pursuing immediate action to reduce the presence of plastic pollution in the environment, in accordance with the precautionary principle as defined in section 2 of CEPA”.^[67]

However, there is no analysis in the Literature Review regarding how, when, and under what conditions “Plastic Manufactured Items” or the 6 SUPs enter and become part of the plastic waste stream, and from there, how they become plastic pollution posing a risk to the environment.

Instead of analysis, all that is offered by ECCC is the assertion that 1% of the plastic waste generated annually in Canada becomes pollution. As set out above, this assertion is based on conjecture, unsupported by Canadian data, measurements or scientific study.

The precautionary principle cannot cure these failures. If it could, there would be no meaningful limits to what could be characterized as “toxic” and added to Schedule 1 or targeted in regulations under s. 93(1) of CEPA 1999.

CEPA 1999 enshrines the precautionary principle in the preamble:

“Whereas the Government of Canada is committed to implementing the precautionary principle that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” (CEPA 1999, emphasis added)

However, the precautionary principle cannot be used, in place of evidence, to assert that a problem exists. Rather, the precautionary principle can be used to justify risk management measures only in relation to a problem that has been demonstrated to exist, and where there are “threats of serious or irreversible damage”.

Furthermore, the precautionary principle is not intended to apply to the risk assessment stage, as it was used in the Proposed Order. Instead, the weight of evidence approach ought to have been used, but was lacking.^[68] While the precautionary principle is the proper approach for risk management, such as the regulation of a substance properly listed on Schedule 1, its correct application requires that the risks have already been scientifically established.^[69]

ECCC’s own policies on the application of precaution underscore that the evaluation of sound, scientific information must be the basis for applying the precautionary principle:

“It is particularly relevant that sound scientific information and its evaluation be the basis for (i) the decision to act or not to act (in example, to implement precautionary measures or not) and (ii) the measures taken once a decision is made”.^[70]

These policies make clear that the existence of a threat of serious or irreversible damage must be evidenced by a credible body of scientific evidence.^[71] They further underscore that evidencing a threat of serious or irreversible damage requires sound scientific analysis of the body of the evidence, undertaken in a transparent and credible manner.^[72] Finally, the available scientific evidence must be evaluated in order to secure quality science, and to summarize not only the state of knowledge but “scientific views on the reliability of the assessment”, including areas of uncertainty.^[73]

The Order, the Notice and the Literature Review supporting them do not respect or apply any of these principles. They do not rest on scientific data, evaluated through sound, credible and transparent scientific analysis. They do not “evaluate the available scientific information” with a view to securing “high quality scientific evidence”, nor do they express scientific views on the reliability of the assessment, or express a conclusion regarding not only the possibility of harm but the magnitude of that harm. In short, the Order, Notice and Literature Review fail to establish a “threat of serious or irreversible damage” on the basis of science, or risk assessment.

While it appears on its face that s. 333(1) allows the Minister discretion about whether to establish a Board of Review, this discretion is not absolute. The decision is held to a standard of reasonableness.^[74] Determining whether a decision is reasonable requires consideration of the decision maker’s reasoning process and the outcome given the factual and legal context of the decision.^[75]

A Board of Review may be granted if there is new evidence which may change the Minister’s conclusion with respect to listing or regulating a substance.^[76] However, if there is no evidence to begin with to substantiate the decision to list or regulate a substance, it would be unreasonable to deny a request for a Board of Review to seek out that evidence. In the present case, the absence of evidence with respect to the listing of “Plastic Manufactured Items” and the Proposed Regulations targeting 6 SUPs removes the Minister’s discretion to refuse a Board of Review.

In conclusion, for the reasons set out above, we respectfully request that a Board of Review be convened under section 332(2) of CEPA 1999.

Sincerely,

Gowling WLG (Canada) LLP
Harry Dahme
Certified Specialist (Environmental Law)